In re Lilly

In re Lilly (2000-258); 173 Vt. 591; 795 A.2d 1163

[Filed 14-Feb-2002]

[Motion for Reargument Denied 06-Mar-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-258

                             OCTOBER TERM, 2001


In re Courtney Lilly	               }	APPEALED FROM:
                                       }
                                       }
                                       }	Labor Relations Board
                                       }	 
                                       }	DOCKET NO. 99-20

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


       Appellant, the State of Vermont Department of Corrections (State),
  appeals a ruling of the  Vermont Labor Relations Board (Board) which
  granted back pay and other benefits to Courtney Lilly  (grievant) as a
  result of his improper dismissal by the State.  The State argues that the
  Board abused  its discretion by: (1) denying the State's request to reopen
  the back pay hearing to admit into  evidence an affidavit of grievant's
  former Department of Employment and Training (DET) case  manager or to
  allow for her testimony; (2) awarding grievant back pay from December 4,
  1999, to  March 11, 2000; and (3) awarding grievant back pay for the first
  month after his dismissal.  Grievant  cross-appeals arguing that the Board
  abused its discretion by refusing to consider grievant's claim  that his
  back pay award should include lost overtime.  We affirm.

       The State of Vermont dismissed grievant from his correctional officer
  position at Northern  State Correctional Facility (NSCF) on March 19, 1999. 
  At that time, grievant had been an employee  of the State for sixteen
  years.  Grievant appealed his dismissal to the Board.  After conducting 
  hearings, the Board issued an order on February 24, 2000, determining that
  grievant was dismissed in  violation of Article 14 of the collective
  bargaining agreement between the State and the Vermont  State Employees'
  Association.  The Board ordered the State to reinstate grievant on March
  12, 2000,  and imposed a ten day suspension for misconduct instead of
  dismissal.  

       The Board continued the case to determine the specific back pay and
  other benefits due  grievant from the date commencing ten working days from
  the effective date of his dismissal until  his reinstatement, for all hours
  of his regularly-assigned shift minus any income received by grievant  in
  the interim.  The parties stipulated to certain benefits due grievant but
  were unable to agree on  whether grievant mitigated his damages by
  attempting to find suitable employment during the period  his grievance was
  pending.

       On March 3, 2000, grievant filed a motion to amend the Board order of
  February 24, 2000,  requesting that overtime compensation be considered in
  determining grievant's back pay award.  On  the first day of hearings
  devoted to the damages phase of the grievance, held on March 16, 2000, the 
  Board denied grievant's motion, concluding that there was no provision for
  overtime in its original 

 

  order and that overtime work is unpredictable and not part of the regular
  work week.  The second  and final day of hearings on damages, held on March
  30, 2000, addressed, in part, the State's  contention that grievant
  forfeited his right to back pay by failing to make reasonable efforts to
  obtain  suitable employment and, therefore, mitigate damages.  On April 7,
  2000, the State filed a motion to  reopen the back pay hearing in order to
  admit the affidavit of grievant's former DET case manager or  to allow her
  to testify.  The Board's final order of May 11, 2000, denied that motion.

       The Board made the following findings of fact.  Grievant did not
  initially seek employment  after his dismissal in March 1999 because he was
  in shock from losing his job.  Grievant applied for  and received
  unemployment compensation from DET beginning on or about May 9, 1999, until 
  December 4, 1999.  In order to receive unemployment compensation benefits,
  the claimant must  make an average of three contacts with potential
  employers each week.  DET performs eligibility  reviews to ensure that
  claimants are looking for suitable employment.  Grievant met all the 
  requirements necessary to receive unemployment compensation and received
  benefits totaling  $7,414.00.  

       In May 1999, grievant started seeking employment in the Newport,
  Vermont area.  Grievant  has a degree in hotel management and had
  previously worked as a chef.  He spoke to local  restaurants about possible
  employment as a chef and contacted local building supply stores for 
  possible positions.  Grievant also traveled to Nevada during the summer of
  1999 and spoke with  restaurant managers about possible employment.  In
  addition, grievant contacted DET for help in  seeking employment, and with
  DET's assistance, found work as a chef for a private party.  The  income
  from this job, $34.80, is the only money that grievant earned during the
  time he was  dismissed.			

       After his unemployment compensation benefits were exhausted in
  December 1999, grievant  generally looked only for part-time work because
  the Board hearings were underway and he expected  a decision to be
  forthcoming.  He applied to one full-time position as assistant
  superintendent at  NSCF in February 2000.

       An employer resource consultant with DET testified that the job market
  in the Newport,  Vermont area was strong, with job offerings in the
  following areas:  truck driving, health care, part-time retail, social
  work, and numerous food preparation positions.  The consultant did not know
  how  much these positions paid or if there were chef positions available.

       Based on the above findings of fact, the Board ordered the State to
  pay grievant only half of  his regular pay from December 4, 1999, until his
  reinstatement on March 11, 2000, to reflect the fact  that grievant looked
  only for part-time work during the period in question.  In addition, the
  Board  ordered the State to pay grievant back pay for the first month
  following his dismissal.  This appeal  followed.

       On June 6, 2000, the State filed a motion for stay pending appeal,
  challenging in particular  two components of the judgment amount:  (1) the
  amount tied to the one month period following  grievant's dismissal, or
  $2,650.22 plus interest, and (2) the half-pay awarded for the period

 

  December 4, 1999, to March 11, 2000, or $4,820.71.  The Board denied the
  State's request with  respect to the one month period and granted the
  State's request with respect to the half-pay award.

       This Court accords substantial deference to the Board in
  determinations that lie within its  area of expertise, In re Merrill, 151
  Vt. 270, 272, 559 A.2d 651, 652-53 (1988), and presumes their  decisions
  are correct, valid and reasonable.  Vermont State Colleges Faculty Fed'n v.
  Vermont State  Colleges, 151 Vt. 457, 460, 561 A.2d 417, 419-20 (1989).  In
  making factual findings, the Board  must employ a preponderance of the
  evidence standard.  In re Muzzy, 141 Vt. 463, 472, 449 A.2d 970, 974
  (1982).  We will uphold the Board's findings so long as credible evidence
  fairly and  reasonably supports them, Id. at 470, 449 A.2d  at 973, even if
  we would not have reached the same  decision.  In re Butler, 166 Vt. 423,
  425, 697 A.2d 659, 661 (1997).  Such findings will stand even if  there
  exists substantial evidence contrary to the challenged findings.  In re
  Brooks, 135 Vt. 563, 567,  382 A.2d 204, 207 (1977).  Nevertheless, this
  Court will reverse the Board's decisions if they are  clearly erroneous. 
  In re Merrill, 151 Vt. at 273, 559 A.2d  at 653.

       The State's first argument is that the Board committed reversible
  error when, in exercising its  discretion, it denied the State's request to
  reopen the record to admit an affidavit of the grievant's  former DET case
  manager or to allow her to testify.  The State contends that her affidavit
  or  testimony would directly contradict the grievant's testimony that he
  contacted her for help in seeking  employment after his unemployment
  compensation had terminated and that therefore her testimony  would
  undermine the Board's determination that grievant made reasonable efforts
  to find suitable  employment during the relevant period.

       Section 12.17 of the Rules of Practice of the Vermont Labor Relations
  Board provides, in  part, that motions for leave to reopen a hearing
  because of newly discovered evidence shall be timely  made, and the Board
  may, in its discretion or in its own motion, reopen a hearing to take
  further  testimony at any time.  In the instant case, the Board declined to
  reopen the record on the basis of  new evidence, concluding that the State
  did not act with due diligence with respect to obtaining  information from
  the former DET case manager.  The Board's ruling is supported by the
  evidence.   As early as October 28, 1999, five full months before the March
  30, 2000 back pay hearing, the State  deposed grievant and learned that the
  DET case manager had been involved in assisting grievant find  work. 
  Furthermore, at the March 16, 2000 hearing, the State informed the Board
  that they were  aware of potential contradictions between testimony that
  DET employees could provide and  grievant's deposition testimony and
  answers to interrogatories.  The Board concluded that with due  diligence,
  the State could have anticipated the potential need to make this witness
  available during  the course of the hearings in order to discredit
  grievant's testimony.  The State should not be allowed  to re-litigate
  matters in which there was ample time to prepare.  As there was no abuse of
  the Board's  discretion in denying the State's motion, its decision is
  affirmed.

       The State's second argument is that after grievant's unemployment
  benefits were terminated,  he did not mitigate his damages to the extent
  required by law and, therefore, is not entitled to back  pay from December
  4, 1999, to March 11, 2000.  The purpose of back pay is to make the
  grievant  whole and to place the grievant in the position that the grievant
  would have been absent a violation.   See In re Butler, 17 V.L.R.B. 247,
  345-46 (1994) (grievant who was improperly dismissed from her 

 

  job in violation of collective bargaining agreement was entitled to full
  back pay for period of work  missed); see generally Angle v. N.L.R.B., 683 F.2d 1296, 1301 (10th Cir. 1982) ("purpose of back  pay order is to . . .
  mak[e] an employee whole for any losses suffered because of an employer's
  unfair  labor practice."). 

       This Court recognizes, nevertheless, that a back pay award should
  ordinarily be fashioned to  reflect the aggrieved party's actual damages. 
  See Kelley v. Day Care Ctr., Inc., 141 Vt. 608, 615-16,  451 A.2d 1106,
  1110 (1982).  Therefore, a proper remedy for an improper dismissal
  generally is  reinstatement with back pay and other emoluments from the
  date of improper discharge, less sums of  money earned or that, without
  excuse, should have been earned since that date.  In re Brooks, 135 Vt.  at
  570, 382 A.2d  at 209.  An employee thus has a general duty to mitigate
  damages.  Cartin v.  Continental Homes of N.H., 134 Vt. 362, 367, 360 A.2d 96, 100 (1976).

       While it is the grievant's duty to mitigate, where an employer is
  claiming that an employee  did not properly attempt to mitigate damages,
  the burden of proof is on the employer.  "This may be  done by establishing
  (1) that suitable work existed, and (2) that the employee did not make 
  reasonable efforts to obtain it."  Dailey v. Societe Generale, 108 F.3d 451, 456 (2nd Cir. 1997). 	

       The Board concluded that the State did not meet the first prong of the
  above two-part test  because it failed to show that there was suitable
  employment available in grievant's geographic area.  The general rule is
  that suitable employment must be substantially equivalent to the position
  lost and  suitable to a person's background and experience.  NLRB. v.
  Westin Hotel, 758 F.2d 1126, 1130 (6th  Cir. 1985).  An employer resource
  consultant with DET testified about the job market in grievant's  area,
  listing available positions in truck driving, social work, part-time
  retail, health care, and food  preparation.  The State failed to provide
  any testimony regarding the salary of the positions that they  posited were
  available.  The Board concluded that the State failed to present evidence
  demonstrating  availability of employment substantially equivalent to
  grievant's prior employment or suitable to his  background and experience. 
  The Board's conclusion that the evidence presented by the State did not 
  show the availability of suitable employment is not clearly erroneous, and,
  therefore, is  affirmed.

       The Board also determined that the State did not meet its burden of
  proving that grievant  failed to make reasonable efforts to find suitable
  employment.  A wrongfully discharged employee is  required to make only a
  reasonable effort to obtain interim employment, and is not held to the 
  highest standard of diligence.  Kawasaki Motors Mfg. Corp., U.S.A. v. NLRB,
  850 F.2d 524, 527  (9th Cir. 1988).  The employee need only make a "good
  faith effort to find suitable alternative  employment."  Schnabel v. Nordic
  Toyota, Inc., 168 Vt. 354, 361, 721 A.2d 114, 119 (1998).  An  assessment
  of the reasonableness of a grievant's efforts to mitigate encompasses more
  than a simple  review of the duration of his or her job search.  Dailey,
  108 F.3d  at 456.  "It entails a consideration of  such factors as 'the
  individual characteristics of the claimant and the job market,' as well as
  the  quantity and quality of the particular measures undertaken by the
  grievant to obtain alternative  work."  Id. at 456 (internal citations
  omitted).

       The Board found that with the exception of applying for the NSCF
  assistant superintendent  position, grievant sought only part-time
  employment after his unemployment compensation ran out 

 

  on December 4, 1999.  The Board concluded that the State did not offer any
  credible evidence to  rebut this.  The Board order appropriately deducted
  from grievant's back pay award one-half of  greivant's regular wages, to
  reflect the fact that grievant looked only for part-time work during the 
  period in question.  Given the State's failure to produce specific evidence
  indicating lack of  diligence, the Board's determination that grievant was
  sufficiently diligent in his search for part-time  employment is supported
  by the evidence and is not clearly erroneous.				
	
       The State urged the Board to adopt an exception to the two-part test
  outlined in Dailey that  would absolve it of the burden of demonstrating
  suitable employment if it can prove that grievant  made no reasonable
  efforts to seek such employment.  See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 54 (2nd Cir. 1998) (adopting this exception and stating that the
  employer should not be  saddled by a requirement that it show other
  suitable employment in fact existed, when the employee,  who is capable of
  finding replacement work, failed to pursue employment at all).  The Board 
  declined to carve out such an exception to the two-part test.  We need not
  address whether this rule  provides an appropriate exception in this case
  as we affirm the Board's determination that the State  did not meets its
  burden of proving that grievant failed to make reasonable efforts to find
  suitable  employment. 	

       Finally, the State appeals the Board's decision to award grievant back
  pay for the "first month  following his dismissal."  The State defines this
  period as the twenty work days during the initial six  weeks after
  dismissal because the back pay award already excludes pay for the ten days
  grievant was  suspended during that six week period.  In its July 28, 2000
  order denying the State's request for a  stay pending appeal, the Board
  concluded that the State failed to raise this issue at the hearing and, 
  therefore, waived its right to appeal.  The Vermont Department of Personnel
  human resources  director testified at the hearings that the State would
  not penalize grievant during the first month of  his dismissal even if he
  failed to mitigate his damages completely.  The Board concluded that the 
  State's present position is inconsistent with the position it took during
  previous back pay hearings  and declined to grant the State's motion to
  stay that portion of the Board's order.  This Court affirms  the Board's
  decision.  The State specifically waived any objection to payment of back
  pay for the first  month in earlier proceedings and, therefore, failed to
  preserve the issue for appeal.

       The last issue on appeal is grievant's claim that the Board abused its
  discretion by denying  grievant's motion that the Board consider his claim
  for lost overtime back pay during the damages  phase of the proceeding. 
  Although the Board generally does not include overtime pay in back pay 
  awards because it is speculative, see Grievance of Goddard, 4 V.L.R.B. 189,
  190 (1981), in this case  it considered grievant's request that he be
  awarded overtime pay for roll call for each of the weeks he  was unlawfully
  dismissed.  Grievant presented evidence that correctional officers at NSCF
  are  required to arrive fifteen minutes prior to the beginning of their
  shift for roll call and that they are  paid overtime for these fifteen
  minutes.  The Board found sufficient evidence to determine that  overtime
  for roll call is predictable and regularly scheduled.  Therefore,
  notwithstanding their general  policy not to hear evidence on overtime pay,
  grievant was afforded the opportunity to present  evidence on roll call
  overtime and was successful in receiving an award for such time.

 

       On appeal, the grievant claims that he was denied the opportunity to
  seek other overtime  compensation beyond that received for roll call. 
  However, he fails to identify what overtime pay he  is entitled to receive
  and made no offer of proof to the Board from which it could have made a 
  determination of entitlement.  Vermont Rules of Evidence 103(a)(2) provides
  that error may not be  predicated upon a ruling which excludes evidence
  unless a substantial right of the party has been  affected and the
  substance of the evidence was made known to the court by offer or was
  apparent  from the context within which questions were asked.  Without an
  offer, error will ordinarily not be  found.  Isabelle v. Proctor Hospital,
  133 Vt. 200, 202, 333 A.2d 118, 120 (1975).  An offer of proof  must be
  specific and concrete, showing what evidence will be introduced, the
  particular  circumstances or conditions covered, and the purpose of the
  offer.  R.E. Bean Const. Co. Inc. v.  Middlebury Assoc., 142 Vt. 1, 7, 451 A.2d 1096, 1100 (1982).  The burden is upon grievant to  produce in this
  Court a record from which it affirmatively appears that error was committed
  in the  hearing below.  It is part and parcel of that obligation to
  establish that the issue involved was  presented to the Board in a manner
  which gave the Board the opportunity to understandingly pass on  the
  question.  State v. Beckenbach, 136 Vt. 557, 561, 397 A.2d 79, 81 (1978). 
  Grievant failed to  make an offer of proof on what evidence he had that
  would take overtime work out of the realm of  speculation.  Grievant's
  failure to make an adequate offer of proof foreclosed the establishment of 
  error below, and the Board's ruling must be affirmed.

       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