Lincoln v. Dept. of Employment Training

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-019


Joshua Lincoln                               Supreme Court

                                             On Appeal from
     v.                                      Employment Security Board

Department of Employment & Training,         December Term, 1990
Shelburne Veterinary Hospital,
Employer


Lawrence Leland and Mary Anne Gucciardi, board members

Eileen M. Blackwood of Paul, Frank & Collins, Inc., Burlington, for
  defendant-appellant

Brooke Pearson, Montpelier, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.


     ALLEN, C.J.   Claimant sought unemployment compensation from an animal
hospital where he had worked during May, 1987.  The Employment Security
Board rejected the employer's contention that claimant had left its services
voluntarily, with the result that the employer incurred unemployment tax
liability.  We reverse and remand.
     Dr. Steven Metz, owner and president of Shelburne Veterinary Hospital,
Inc. (SVHI), hired claimant, Dr. Joshua Lincoln, as a so-called relief
veterinarian during May, 1987.  Claimant was to be responsible for paying
his own taxes and was to receive a flat daily rate of $150.  At the outset
the length of this relationship was agreed to be one month, at the end of
which their relationship would end.
     Before this relationship, claimant had performed similar services as a
relief veterinarian for other practices.  After claimant began working, Dr.
Metz offered him an annual salary of $25,000 if he would remain past the
one-month period as an associate veterinarian.  Because he had earned annual
wages of about $33,000 as a full-time employee of another veterinary
hospital, claimant rejected this offer as too low.
     After leaving SVHI, Dr. Lincoln obtained another job which did not
begin until July, 1987.  He filed for, and received, unemployment compen-
sation for the interim period, which was charged to SVHI, his last
employer.  The chief appeals referee sustained the decision of the chief
claims adjudicator, concluding that Dr. Lincoln was not disqualified for
benefits under 21 V.S.A. { 1344(a)(2)(A) because he had not left the employ
of SVHI "voluntarily without good cause attributable to [SVHI]."
     Following the referee's decision, the employer requested that the
evidence be reopened to clarify the testimony concerning the reason for the
four-week limitation on Dr. Lincoln's employment.  Dr. Metz sought to
present additional testimony of his own and of his two nurses that Dr.
Lincoln's own time commitments were the reason for the four-week employment
limitation.  That request was refused, and the Board affirmed the referee's
decision.  The present appeal followed.
     The issue on appeal is the correctness of the Board's conclusion that,
having accepted temporary employment, Dr. Lincoln was not disqualified for
leaving SVHI's employ "voluntarily without good cause attributable to
[SVHI]."  In reaching this conclusion, the Board stated:
         Even assuming that the sole reason why the employment
         lasted no more than four weeks was the insistance [sic]
         of the claimant, the relevant fact is that the two
         parties agreed, for whatever reason, to a term of
         employment lasting a fixed duration.  In the absence of
         any showing that the employer had continued work
         available for the claimant on the same terms and
         conditions, as opposed to the changed $25,000 per year
         permanent relationship offered to the claimant, the
         claimant simply cannot be disqualified for unemployment
         compensation benefits at the expiration of the agreed
         upon term of employment.  (Emphasis added).

     In sum, the Board concluded that as long as there is mutual agreement
to a fixed term of employment an employee cannot be disqualified for bene-
fits, even if the employee rather than the employer insists on the fixed
term.  The Board drew that conclusion from our holding in Anthony Adams, AIA
Architect v. Department of Employment Security, 139 Vt. 413, 430 A.2d 446
(1981), where we stated:
           The question of whether a person hired for a specific
         term voluntarily leaves at the end of that term so as to
         disqualify him from unemployment benefits is one of
         first impression before this court.  This issue has
         been addressed in several other jurisdictions, however.
         These cases have generally held that an employee who
         accepts a temporary position does not leave that
         position voluntarily at the end of the agreed period.
         We agree with this view.

Id. at 414, 430 A.2d  at 447 (citations omitted).
     In Anthony Adams the temporary employment ended because "the job was
completed and the work terminated."  Id.  Where there is an agreement for
temporary employment and no evidence suggesting that it was the employee who
asked that the term of employment be limited, it may be presumed that the
employer dictated the terms of the agreement.  Given the remedial nature of
our unemployment compensation legislation, see In re Moore, 128 Vt. 581,
586, 269 A.2d 853, 856 (1970), this presumption is a fair one.
     The Board read Anthony Adams as rendering involuntary any departure
from temporary employment, regardless of whether it was the employee or the
employer who sought and imposed the limitation on the term of employment.
Although that is a fair reading of the broad language of our holding, it is
not consistent with the intention of the Legislature in cases where it is
clear that employment is temporary because the employee advises the employer
that he or she will be unavailable for work beyond a certain date.  In
Calkins v. Board of Review of Department of Employment Security, 141 Ill.
App. 3d 36, 40-41, 489 N.E.2d 920, 923 (1986), involving a statute very
similar to { 1344, (FN1) the court reversed the administrative appeals board,
holding:
         throughout this proceeding the Department has accepted
         as factual . . . [that] "(claimant) did not want any
         additional work or any employment beyond the fill in
         work which she agreed to do." . . .  An unrefuted
         statement that the claimant did not desire any more work
         than she anticipated performing for the plaintiff serves
         to effectively bar her claim for unemployment benefits.

In Cervantes v. Administrator, Unemployment Compensation Act, 177 Conn. 132,
411 A.2d 921 (1979), upholding unemployment compensation to a violinist
employed by an orchestra for a series of ten concerts, the court stated:
         Although we hold that, due to the nature of plaintiff's
         work and the particular circumstances of this case, the
         trial court erred in concluding that the plaintiff's
         termination of employment was voluntary, we do not
         intend to imply that, under other circumstances, an
         employee cannot, by contractual agreement, agree to
         terms which effect a voluntary ending of employment on a
         future date.  Rather, the particular facts of each case
         must be examined to determine whether the termination of
         employment is truly "voluntary" within the intent and
         meaning of the unemployment compensation act.

Id. at 137, 411 A.2d  at 923.
     In none of the cases relied on in Anthony Adams did it appear that
employment was temporary because the employee had stated that he or she
would be unavailable for work beyond a certain date and wanted the
employment to be temporary.  In State Department of Industrial Relations v.
Montgomery Baptist Hospital, Inc., 359 So. 2d 410, 413 (Ala. Civ. App.
1978), for example, the employee agreed that his employment with the
hospital would end after a nine-month period, but he did not request such
limited term.  Similarly, in Kentucky Unemployment Insurance Comm'n v.
American National Bank & Trust Co., 367 S.W.2d 260 (Ky. 1963), the claimant
had been hired as a guard at a temporary location during renovation of the
permanent premises.  The job ended when renovations were completed, and
there was no suggestion that the claimant stated he would be unavailable to
continue his services.
     We now hold that an employee who accepts a temporary position does not
leave that position involuntarily at the end of the agreed period if it is
shown that the employee requested temporary employment in light of his or
her needs or availability.  This analysis should be a practical one and
should look beyond inferences about voluntariness that might be gleaned from
the mere existence of an employment agreement.  An employee's entry into an
agreement for a temporary period of employment, without more, simply tells
us that the employee is willing to accept all of the employer's terms and
conditions; it tells us little about the employee's willingness or
availability to serve beyond the agreed-upon term if an extension had been
offered.  So where the only evidence is an agreement for a limited term of
employment, the rule in Anthony Adams compels the conclusion that the
claimant has not left the employment voluntarily.  As the court said of
temporary work in Kentucky Unemployment, "the voluntary acceptance of such
work does not constitute a voluntary leaving at the end of the agreed time."
367 S.W.2d  at 262.
     But where an employee has requested an agreement for a limited term of
employment because of unwillingness or unavailability to serve longer,
nothing in our statute compels the conclusion that such employee at the end
of the temporary work leaves the employment involuntarily.
     The Department of Employment and Training (DET) argues that the
employer did not present evidence tending to prove that Dr. Lincoln imposed
limits on the length of his service with SVHI and that the findings by the
chief appeals referee, on which the Board's decision is based, were con-
sistent with the evidence.  Though Dr. Metz testified that the reasons for
the agreement for a limited employment included "time commitments that [Dr.
Lincoln] had," there was other evidence, including Dr. Lincoln's own testi-
mony, that supported a finding that the limited employment agreement was Dr.
Metz's choice.  However, following the decision by the chief appeals ref-
eree, SVHI sought by letter to reopen the proceedings to allow presentation
of additional evidence by employees of Dr. Metz that Dr. Lincoln had said
that the one-month period was "all he could commit."  The chief appeals
referee declined to reopen proceedings, and the Board in its decision,
relying on Anthony Adams, stated that "[e]ven assuming that the sole reason
why the employment lasted no more than four weeks was the insistance [sic]
of the claimant, the relevant fact is that the two parties agreed, for
whatever reason, to a term of employment lasting a fixed duration."
     The decision whether to remand to the referee for the taking of
additional evidence is within the Board's sound discretion.  Miner v.
Department of Employment and Training, 144 Vt. 211, 213, 475 A.2d 233, 235
(1984).  But there are strong reasons for a different outcome in the present
case.  First, as the Board pointed out in its decision, Anthony Adams
appeared to make the question of who sought initial limits on the length of
the employment irrelevant.  Our reading of 21 V.S.A. { 1344(a)(2)(A)
modifies our holding in Anthony Adams and makes this question relevant.
DET argues that Dr. Metz should have supported all of his legal theories
with adequate evidence at the hearing before the appeals referee.  Although
we rarely allow a litigant to supplement a trial record where there has been
a full and adequate opportunity to present evidence in the first instance,
Houran v. Preferred Accident Insurance Co. of New York, 109 Vt. 258, 268-70,
195 A. 253, 257-58 (1937), the record in this case shows that Dr. Metz
addressed all of the issues raised by the chief appeals referee during the
hearing.  Moreover, Dr. Metz was at the time acting pro se and necessarily
relying on the referee for guidance as to the nature of the major issues
under Vermont's unemployment compensation statute.  Only upon issuance of
the referee's decision did it appear that evidence on who insisted upon the
limited employment might be relevant, and even then Anthony Adams appeared
to dictate the result.
     In these circumstances it is appropriate to remand the matter to the
Board, with directions to allow the employer to present additional evidence
on whether the limitation on the length of the employment was requested by
Dr. Lincoln because of his unwillingness or unavailability to serve longer,
so that his departure from SVHI was "voluntarily without good cause
attributable to such employing unit."        
     SVHI also argues that the Board erred in concluding that Dr. Lincoln
did not refuse suitable work at the end of the one-month term when he
rejected an offer of permanent employment at a salary below the rate for his
temporary employment and below the rate of his previous permanent employ-
ment.  The Board concluded that the offer of a permanent position at a
considerable reduction from either his temporary per-diem rate or his prior
salary level was not an offer of "suitable work," and SVHI offers no reason
why the Board's view of the disparity -- a matter within its expertise --
should be overturned on appeal.  Allen v. Department of Employment Security,
141 Vt. 132, 134, 444 A.2d 892, 893 (1982).
     SVHI's other arguments are without merit.
     Reversed and remanded for further proceedings consistent with this
opinion.

                                        FOR THE COURT:




                                        Chief Justice
         


FN1.    The Illinois statute in question, Ill. Rev. Stat. ch. 48, par. 431
A (1983), stated:
 	  An individual shall be ineligible for benefits for the
	 week in which he has left work voluntarily without good
	 cause attributable to the employing unit and, there-
	 after, until he has become reemployed and has had earn-
	 ings equal to or in excess of [Illinois requirement].
	 


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                                DISSENTING



NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-019


Joshua Lincoln                               Supreme Court

                                             On Appeal from
     v.                                      Employment Security Board

Department of Employment & Training,         December Term, 1990
Shelburne Veterinary Hospital,
Employer


Lawrence Leland and Mary Anne Gucciardi, board members

Eileen M. Blackwood of Paul, Frank & Collins, Inc., Burlington, for
  defendant-appellant

Brooke Pearson, Montpelier, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.


     DOOLEY, J., dissenting.  If the issue here were whether the Board erred
in spite of finding that claimant imposed the durational limit on his
employment, I could accept the decision.  The issue instead is whether the
Board erred in refusing to reopen the evidence to allow the employer to
submit additional evidence.  As the majority states, the Board has dis-
cretion in making such a decision.  See Miner v. Department of Employment
and Training, 144 Vt. 211, 213, 475 A.2d 233, 235 (1984).  I believe the
decision here fell well within the Board's discretion and should be
affirmed.
     There are four reasons why I believe the Board properly exercised its
discretion in refusing to reopen for additional evidence.  The first is that
the employer had the clear opportunity to present this evidence and failed
to do so.  The issue arose at the referee's hearing on February 15, 1989.
At that time, the issues were whether claimant left voluntarily and whether
he was an independent contractor.  On the former issue, the employer tes-
tified that he wanted claimant to stay beyond the month "as an employed
veterinarian," but they could not agree on a salary for such permanent
employment.  He did not testify that he wanted claimant to stay for a
further period as a relief veterinarian paid at the daily rate.
     Claimant, on the other hand, clearly testified that the employer set
the duration of the temporary employment.  He stated that the employer "had
a three to four week period which he could use me" and that the employer
"approached me for working for a specific time period, a four-week period."
He added that he had no arrangements with any other employer for work after
he finished at the Shelburne Veterinary Hospital.  He eventually was hired
by another employer on July 1st, approximately a month after leaving the
Shelburne Veterinary Hospital.
     The employer was allowed to question the claimant but failed to ask
about the circumstances surrounding the durational limit on claimant's
temporary work.  Although offered the opportunity, the employer did not
give any rebuttal testimony.  Thus, the referee had no indication that there
was any dispute in the testimony.  Not surprisingly, the referee found that
the employer set the one-month limit on the employment.
     Second, the employer has no good explanation why he failed to develop
the issue of the durational limit at the referee's hearing.  The letter from
employer's counsel seeking reopening stated that the reason was to clarify
the evidence in the record.  It gave no reason why the employer did not
clarify the evidence at the time of the referee's hearing, when he heard
evidence that he now alleges is clearly false and did nothing about it.  In
fact, the evidence was undisputed and clear that the employer, not the
claimant, imposed the durational limit.
     The only other ground was stated by the employer (not his counsel) at
the Board hearing and is apparently accepted by the majority here.  He
stated, "none of that opportunity [to present the evidence] was afforded me
or given to me because the issue was not clearly defined at the preliminary
hearing."  To the contrary, he had the opportunity to present the evidence,
and the issue was sufficiently defined.  He was told he had to present a
case on voluntary leaving and did so; he "cannot look to the [referee] to
insure the completeness of his case."  Olde & Co., Inc. v. Boudreau, 150
Vt. 321, 323, 552 A.2d 793, 794 (1988).  Claimant clearly saw the relevancy
of the issue and testified on it without being disputed by the employer.
     Third, there is no indication that the employer will be able to prove
what he now alleges.  Claimant testified directly to the contrary, without
any response by the employer.  The employer alleges that claimant had to
leave because of other responsibilities; the evidence shows that he was
without work for a month until he took a job in Maine.  The employer alleges
that claimant submitted a letter that states that he imposed the limit on
his employment.  The letter is in the record and does not state what the
employer claims for it.  Although the employer claims his nurses will
testify to certain facts, no affidavits were offered to show that testimony.
     Fourth, the taking of additional evidence at this late date is very
unfair to claimant.  He collected one month of unemployment compensation and
moved out of state.  It will cost him as much as the unemployment benefits
he received to appear at an additional hearing.  If he does not appear, his
credibility must be weighed from a two-year-old record against new testimony
from the employer and his witnesses.  If he does not prevail, he may become
liable for the benefits he received.  See 21 V.S.A. { 1347(a), (b).
     Rule 16(L) of the rules of the Vermont Employment Security Board allows
additional evidence to be presented to the referee only where "the parties
are given an opportunity of examining, cross examining, and refuting such
evidence."  See 2 Code of Vermont Rules, Rule 23010001, at 21 (1985).
Claimant will have only an illusory opportunity to cross-examine the
employer's witnesses or to refute them.  It is unjust to make him go through
another hearing.
     The majority's response to this appears to be a new rule of law,
roughly stated as follows:  "No matter how unfair to the claimant, when the
employer alleges that he has relevant evidence he would have presented if he
knew fully and completely the law applicable to his case, he must be allowed
to present that evidence."  We have rejected a rule like that for court
proceedings.  See Boudreau, 150 Vt. at 324, 552 A.2d  at 795 (decided under
V.R.C.P. 60(b)).  This rule undermines finality of unemployment compensation
adjudication and gives employers a second try to avoid payment of benefits
at the expense of unrepresented claimants.  It is a bad rule from which I
must dissent.




                                        Associate Justice