Bouchard v. Department of Employment & Training

Bouchard v. Department of Employment & Training (2002-197); 174 Vt. 588; 
816 A.2d 508

[Filed 18-Nov-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-197

                             OCTOBER TERM, 2002


  Raymond C. Bouchard	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Employment Security Board
                                       }	
  Department of Employment and         }
  Training			       }	DOCKET NO. 01-02-119-12


             In the above-entitled cause, the Clerk will enter:

       Claimant Raymond Bouchard appeals the decision of the Employment
  Security Board to deny him unemployment benefits, pursuant to 21 V.S.A. §
  1344(a)(2)(B), because he was discharged from his job for gross misconduct
  connected with his work.  We affirm the Board's decision.

       Claimant was employed as an automobile mechanics teacher at Bellows
  Free Academy for sixteen years until December 7, 2001 when he was dismissed
  by the school's Board of Trustees.  The following events gave rise to the
  dismissal.  On November 15, 2001, claimant's teenage son, a student at the
  school, was emotionally distraught over a personal incident.  Claimant told
  his son to stay home from school that day in order to calm down, but his
  son insisted upon attending school.  Claimant first spoke to his son's
  teachers and guidance counselor to inform them of his son's emotional
  condition.  That morning, while claimant was teaching a class, claimant's
  son burst into his classroom swearing and causing a disturbance.  Claimant
  removed his son from the classroom and arranged a meeting for his son with
  the guidance counselor.  Later that morning, when his son caused a
  disturbance in claimant's classroom for a second time, claimant arranged
  for his wife to pick up their son from school.  Claimant's wife obtained
  permission from a school official to return her son to school that
  afternoon.  After learning his son had returned to school, claimant
  proceeded to his son's final class of the day.  When claimant's son saw him
  waiting he became upset, and claimant escorted him by the arm to his
  office.  
   
       A verbal argument escalated to physical violence in claimant's office. 
  There are varying versions of the fight; however, all agree that claimant
  pushed his son and the boy fell into some office equipment, injuring his
  chin.  Claimant's son ran away from him as they were leaving the office and
  hid in the locker room.  A physical education teacher found the boy and,
  upon his mother's request, the teacher drove him to her place of
  employment.  When claimant could not find his son, he called the police
  department to report him missing.  That evening two police officers arrived
  at claimant's house and spoke with claimant, his wife, his son and his
  daughter.  The officers 

 

  then arrested claimant on the charge of domestic assault.  The next day,
  the school suspended his employment with pay and then terminated it on
  December 7, 2001.  

       After his termination, claimant filed for unemployment benefits, and a
  claims adjudicator denied his claim.  An appeals referee held a hearing in
  February of 2002 and sustained the decision to deny benefits.  On appeal,
  the Employment Security Board affirmed the decision of the appeals referee
  after a hearing from which claimant was absent.  This appeal followed.
          
       In reviewing the Employment Security Board's action, this Court must,
  if possible, construe the Board's findings so as to support the judgment. 
  Carson v. Dep't of Employment Sec., 135 Vt. 312, 314, 376 A.2d 355, 357
  (1977).  Absent a clear showing to the contrary, any decisions within its
  expertise are presumed to be correct, valid, and reasonable.  Caledonian
  Record Publ'g Co. v.  Dep't of Employment & Training 151 Vt. 256, 260, 559 A.2d 678, 681 (1989).  However, we will overturn a Board decision where we
  find the evidence "wholly insufficient to allow the Board to reach the
  conclusion it did."  Pfenning v. Dep't of Employment & Training, 151 Vt.
  50, 52, 557 A.2d 897, 899 (1989).  This Court will uphold the Board's
  factual findings unless clearly erroneous, id. at 52, 557 A.2d  at 898, and
  its conclusions of law if fairly and reasonably supported by those findings
  of fact.  Caledonian Record Publ'g Co., 151 Vt. at 260, 559 A.2d  at 681.  

                                     I.

       Claimant first argues that, as a matter of law, his behavior did not
  constitute "gross misconduct connected with his work" under 21 V.S.A. §
  1344(a)(2)(B).  Gross misconduct, under 21 V.S.A. § 1344, involves a
  "substantial disregard of the employer's interest, either wilful or
  culpably negligent . . . ."  In re Gray, 127 Vt. 303, 305, 248 A.2d 693,
  695 (1968).  The school's faculty/staff handbook specifically prohibits the
  use of corporal punishment, as does 16 V.S.A. § 1161a(c), and further
  declares that "[t]ouching students in any way is ill advised and
  inappropriate."  The school's student behavior policy also states, 

    The Board of Trustees recognizes that learning appropriate
    behavior is an integral part of a student's development. 
    Procedures and strategies used in dealing with inappropriate
    behavior must be just and fair; must be in the best interests of
    the individual and the school community; and must provide
    opportunities for students to learn, understand and exhibit
    appropriate and productive social behavior.

    . . . . 
    Providing a safe, secure, orderly atmosphere conducive to
    effective learning is the joint responsibility of the teachers and
    administrators.

  It is clear that if the student was not the claimant's son, the behavior
  would qualify as gross misconduct connected with claimant's work.  Claimant
  contends, however, that his behavior was not "connected with his work"
  because the student is his son.  We disagree.  Significantly, the physical
  altercation occurred in a school building immediately following the final
  class of the day, and the 

 

  school has a considerable interest in "[p]roviding a safe, secure, orderly
  atmosphere conducive to effective learning."  A teacher's responsibilities
  in a school do not simply cease because a bell signals that a class has
  ended.  The Board's findings sufficiently support its conclusion that
  claimant engaged in gross misconduct connected with his work.

                                     II.

       Appellant also argues that the Board's reliance upon hearsay
  statements and an incomplete transcript was error.  We disagree, and hold
  that the Board had sufficient evidence before it upon which to base its
  decision.  

       Use of hearsay statements in Board hearings is acceptable practice, as
  the referee and the Board "shall not be bound by common law or statutory
  rules of evidence . . . but may conduct a hearing or trial in such manner
  as to ascertain the substantial rights of the parties."  21 V.S.A. § 1351. 
  Even in instances where a Board's decision is supported only by hearsay
  evidence, that evidence may have sufficient indicia of reliability to
  support the Board's findings.  See In re Selivonik, 164 Vt. 383, 390, 670 A.2d 831, 836 (1995) (determining that hearsay may be sole evidence in
  proceeding in front of Human Services Board if evidence has sufficient
  indicia of reliability).  Accordingly, a reviewing court should determine
  the weight that each item of hearsay should receive, based upon that
  court's finding of truthfulness, reasonableness, and credibility.  Id.
  (citing Watker v. Vt. Parole Bd., 157 Vt. 72, 77, 596 A.2d 1277, 1280
  (1991)).  Factors to be considered include whether the hearsay was specific
  and detailed, whether the statements made were consistent, and whether the
  sources of the hearsay evidence were disinterested persons.  Id. 

       Here, despite the incomplete transcript, the Board had access to
  affidavits from the two police officers who went to claimant's home the
  night of the incident, to testimony by claimant and his son, as well as to
  notes procured by claimant's supervisor.  The affidavits of the police
  officers contained statements made by claimant, his son, his wife, his
  daughter, and a physical education teacher at the school.  The officers'
  affidavits were created on the day of the incident.  As an initial matter,
  we dispel appellant's argument that those police records are "per se
  inadmissible" hearsay.  Again, the Board is not bound by those rules of
  evidence as may be applicable to criminal or other proceedings.  21 V.S.A.
  § 1351.  

       Claimant's supervisor made a written report of conversations with the
  son and the physical education teacher.  The oral testimony given by
  claimant and his son before the appeals referee differed from both the
  statements contained in the police affidavits and the supervisor's notes. 
  Both the officers and the supervisor created detailed reports fairly
  contemporaneously with the event.  All statements made in the affidavits
  and notes were also consistent with each other.  As such, the Board could
  have found the statements contained in the officers' affidavits and the
  supervisor's notes more credible than the version offered by claimant and
  his son at the referee's hearing.   
   
       Moreover, claimant did not attend the Board's hearing to object to the
  use of this evidence.  Thus, claimant may not now argue that the Board
  erred by relying on such evidence.  See Harrington 

 

  v. Dep't of Employment & Training, 152 Vt. 446, 450, 566 A.2d 988, 990
  (1989) (finding that because the claimant did not object to the
  introduction of the employer's hearsay evidence before the Board, there was
  no error in the court's reliance upon that information).  Consequently,
  notwithstanding the incomplete transcript of the referee's hearing, the
  Board had before it sufficient evidence to support its findings. 

                                    III.

       Finally, claimant argues that he was denied due process because the
  appeals referee did not engage in fact finding; he did not receive notice
  of the Board's review hearing; and the transcript of the appeals hearing
  was incomplete.  We have reviewed each of these arguments and hold them to
  be without merit.  

       Affirmed. 


                                      BY THE COURT:



                                      _______________________________________
                                      Jeffrey L. Amestoy, Chief Justice

                                      _______________________________________
                                      John A. Dooley, Associate Justice

                                      _______________________________________
                                      James L. Morse, Associate Justice

                                      _______________________________________
                                      Denise R. Johnson, Associate Justice

                                      _______________________________________
                                      Marilyn S. Skoglund, Associate Justice