Lynch v. Dept. of Employment & Training

Lynch v. Dept. of Employment & Training (2005-003); 179 Vt. 542; 890 A.2d 93

2005 VT 114

[Filed 06-Oct-2005]

                                ENTRY ORDER

                                2005 VT 114
	
                     SUPREME COURT DOCKET NO. 2005-003

                             APRIL TERM, 2005

  Bonnie Lynch	                       }	APPEALED FROM:
                                       }
                                       }
     v.                                }
                                       }
  	                               }	Employment Security Board
  Department of Employment & Training  }
  (State of Vermont/Office of          }
  the Defender General)	               }	DOCKET NO. 09-04-023-03
                                       }

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


       ¶  1.  Claimant Bonnie Lynch appeals from an Employment Security Board
  (ESB) determination that she was ineligible for unemployment compensation
  after leaving her job without good cause attributable to her employer.  We
  affirm.

       ¶  2.  Claimant worked as a secretary for the Bennington County Public
  Defender's Office for three and one-half years before resigning in August
  2004.  The reasons for claimant's resignation centered on what claimant
  characterizes as hostile, unprofessional, and aggressive conduct by her
  immediate supervisor.  Claimant described the supervisor as inflexible,
  controlling, and abusive.  The supervisor's treatment of claimant and
  others involved in the court system became an issue of great concern to
  claimant.  The testimony before the claims adjudicator established that the
  supervisor had acted inappropriately during a meeting with the presiding
  judge of the Bennington District Court and was later required to apologize
  for her conduct.  Other instances of the supervisor's less-than-courteous
  conduct were described in the record.

       ¶  3.  Claimant complained to the public defender about her supervisor
  on two occasions.  The public defender told claimant that she and her
  supervisor should try to resolve their differences, which claimant
  attempted to do.  The supervisor's behavior improved for a while, but the
  improvement did not last.  Claimant complained again in late July 2004. 
  This time, she told the public defender that she intended to resign because
  she found the situation intolerable.  The public defender offered three
  alternative solutions to address the issue: (1) allow the public defender
  to address claimant's concerns with the supervisor at the supervisor's
  regular performance review, which was scheduled two weeks from that date;
  (2) ask the Defender General's Office to intervene; and/or (3) ask the
  state employees' union for assistance in resolving the problem using the
  process established by the union contract.  Believing that the work
  environment would deteriorate rather than improve if she pursued one or
  more of those options, claimant decided to resign and to file for
  unemployment compensation.  The denial of unemployment compensation
  benefits gave rise to this appeal.
 
       ¶  4.  On appeal, claimant challenges only the ESB's conclusion and
  not the facts the ESB found.  Therefore, our review of the ESB's decision
  is narrow and requires us to determine "whether the findings support the
  [ESB]'s conclusions, and the conclusions its decision."  Turco v. Dep't of
  Employment §, 141 Vt. 135, 136, 446 A.2d 345, 346 (1982).  At issue is
  whether, under the facts the ESB found, claimant left her "last employing
  unit voluntarily without good cause attributable to such employing unit." 
  21 V.S.A. § 1344(a)(2)(A).  This question must be analyzed under the
  specific facts and circumstances of each individual case, Turco, 141 Vt. at
  137, 446 A.2d  at 346, to determine whether the employee's decision was
  reasonable.  Skudlarek v. Dep't of Employment & Training, 160 Vt. 277, 280,
  627 A.2d 340, 342 (1993).  The employee has the burden to prove good cause
  for quitting her job.  Id.

       ¶  5.  Because claimant initiated the separation from employment in
  this case, she had the burden to demonstrate that her decision to resign
  was reasonable because the employer failed to do anything to improve the
  working conditions about which she complained.  See Turco, 141 Vt. at 138,
  446 A.2d  at 347 (affirming ESB decision in favor of employee where employer
  was aware of co-worker harassment and did nothing to address the problem). 
  The ESB determined that claimant did not sustain her burden, and we agree. 
  Even if all of the allegations claimant made about her supervisor were
  true, the record shows that her employer took measures to deal with the
  matter after claimant complained.  The public defender spoke to the
  supervisor about the problem and her behavior improved for some time. 
  After claimant complained to the public defender a second time, the public
  defender provided three different options for claimant to handle the
  problem.  Claimant's decision to forego those options and leave her job
  permanently cannot be attributed to her employer.

       ¶  6.  This case is distinguishable from Turco, where this Court
  upheld the ESB's decision to grant the claimant unemployment compensation. 
  The claimant in Turco had been subject to false claims of stealing by his
  coworkers because the coworkers did not like the claimant's religious
  proselytizing.  In contrast to the public defender's actions in this case,
  the employer in Turco did nothing to address the claimant's difficulties
  with his coworkers.  The Court explained that "given the history of
  harassment, [the employer]'s knowledge of it, the employer's failure to
  address the problem, and the seemingly calloused indifference to claimant's
  plight we cannot say that the Board erred in concluding that the leaving
  was with good cause attributable to the employing unit."  Id.  The ESB's
  findings show that the employer was sympathetic to claimant's plight and
  took reasonable steps to deal with her complaints.  Even if other steps
  could have been taken to address claimant's concerns, the ESB's
  determination that claimant acted unreasonably by quitting her job given
  all of the circumstances then present is entitled to deference.  See id.
  (reiterating that when findings are supported by evidence, Supreme Court
  defers to ESB's decision on whether claimant's decision to quit was
  reasonable).   In sum, the ESB's determination that claimant left her job
  for reasons not attributable to her employer must be sustained.

       Affirmed.

------------------------------------------------------------------------------
                                 Dissenting


       ¶  7.  JOHNSON, J., dissenting.  The majority's cramped view of the
  unemployment statute and our decision in Turco v. Department of Employment
  Security, 141 Vt. 135, 446 A.2d 345 (1982), results in an unfair denial of
  unemployment benefits to an employee who chose to leave her job rather than
  continue in an intolerable workplace environment.  The key fact that
  compels unemployment in this case is that the employer, an office of the
  Defender General, had long-standing knowledge of the offending supervisor's
  conduct, acknowledged that the supervisor was a problem, but failed and
  refused to take adequate steps to remedy the problems created by the
  supervisor in the work environment.  Upholding the denial of benefits in
  this circumstance distorts the purpose of unemployment, which is to be
  liberally construed to support employees who are no longer working due to
  circumstances beyond their control.   Lane II v. Dep't of Employment §, 134
  Vt. 9, 10-11, 347 A.2d 454, 455 (1975) ("The complex pattern of the whole
  statute is one of compensation for involuntary unemployment, with
  disqualification and penalties where the unemployment is due to choice or
  fault.").   I respectfully dissent.

       ¶  8.  After three-and-a-half years of employment as a secretary at
  the Bennington County Public Defender's Office, claimant resigned in 2004
  due to a hostile work environment created by her direct supervisor.  The
  public defender had knowledge of the supervisor's conduct and the
  detrimental effect it had on claimant as early as 2003, when claimant
  formally complained and indicated her intent to resign if the supervisor's
  conduct continued.  At that time, she was told to work it out with her
  supervisor.  She did as she was told and matters improved for awhile.  The
  public defender was aware, however, that the supervisor continued to create
  a difficult working environment even after he had spoken with the
  supervisor after claimant's 2003 complaint. 

       ¶  9.   Despite this knowledge, when claimant formally complained a
  year later, the day after she had been the target of the supervisor's rage,
  the public defender gave claimant three options, two of which placed the
  burden on the employee to take steps to resolve the problem, and the third
  promised no immediate help for the situation.  As a result, claimant
  resigned.

       ¶  10.  The legal issue is whether claimant quit for reasons not
  attributable to her employer.  Because the employer offered three
  inadequate options to the employee, and claimant made a different choice,
  the majority upholds the ESB's conclusion that claimant willingly chose to
  resign.  The majority's decision rests on its interpretation of Turco,
  which it reads as barring a claimant from  unemployment compensation if the
  employer does "anything" to address an employee's work-related problems. 
  In Turco we held that the claimant was entitled to unemployment
  compensation because the employer did nothing to remedy the claimant's
  situation. 141 Vt. at 138, 446 A.2d  at 347.  As the majority points out,
  however, we reached this conclusion by analyzing the totality of the
  circumstances, including "the history of harassment, [the employer]'s
  knowledge of it, the  employer's failure to address the problem, and the
  seemingly callous indifference to claimant's plight."  Id.  Therefore,
  Turco does not limit this Court from finding an employer's actions to be so
  inadequate that a claimant's decision to quit work is justified under the
  statute. 

       ¶  11.   None of the options the public defender presented to claimant
  was reasonable in light of the problem presented.   First, the public
  defender advised the employee to file a grievance with the Vermont State
  Employees Association (VSEA).  But the problem as reflected by the hearing
  officer's findings of fact relates to the conduct of the supervisor, who
  was frequently rude and nasty to others.  The public defender did not
  dispute that the supervisor was a problem.  He was well aware of this fact
  because he had reprimanded her on a prior occasion for offending a judge,
  going so far as to require her to send a letter of apology to the judge. 
  Thus, this was not a personal conflict that existed exclusively between the
  supervisor and the claimant, nor one in which the employer disputed that
  the supervisor was a problem in the office.  In either of those situations,
  it might have been reasonable to ask the employee to take her issue to the
  VSEA   
 
       ¶  12.  Nor was it reasonable to ask claimant, a clerical employee, to
  go the Defender General's Office and complain about her immediate
  supervisor, because the public defender in charge of the office refused to
  address the problem in a timely fashion.  This was a brush-off that
  claimant rightly perceived was likely to result in even greater harassment
  from her supervisor.  

       ¶  13.  The third option, that the public defender would address the
  issue during an annual performance review of the supervisor in two weeks,
  promised little hope of a resolution given the amount of attention that the
  public defender had been willing to give to the situation in the past.  
  Again, Turco requires us to look at the context in which these
  long-standing problems were occurring.   Although the public defender was
  entitled to handle or not handle the personnel problem as he saw fit, that
  is a different question from whether claimant was entitled, at some point,
  to hit her limit with the employer and leave, without suffering a loss of
  benefits.  Asking claimant to exhaust all options proffered by the
  employer, when none had any chance of resolving an immediate problem, is
  unreasonable as a matter of law.  See In re City of Franklin, 485 A.2d 295,
  298 (N.H. 1984) (interpreting a nearly identical statute and holding that
  claimants are not required to exhaust all available remedies within the
  employer's organization before terminating employment on account of the
  employer, but requiring claimants to show under broader reasonable-person
  test that circumstances warranted termination); see also N.H. Rev. Stat.
  Ann. § 282-A:32(I)(a) (2005); N.H. Code Admin. R. Ann. [Emp. Sec.]  503.01
  (2005).  

       ¶  14.  Moreover, the majority's decision places an unreasonable
  burden on the claimant to resolve a workplace problem that, based on the
  findings, was not of her own making and not within her control.  The
  majority upholds the ESB's decision on the standard of review, which is
  deferential to the Department of Employment Security.  But the ESB is also
  bound by Turco, and by the liberal statutory construction in favor of
  benefits.  Considering all of the findings and discussion in the hearing
  officer's decision, subsequently upheld by the ESB, the decision is an
  unreasonable interpretation of the law.  Claimant should be entitled to
  unemployment compensation under 21 V.S.A. § 1344 (a)(2)(A).


                                           BY THE COURT:
  Dissenting:



  __________________________________       __________________________________
  Denise R. Johnson, Associate Justice     Paul L. Reiber, Associate Justice

                                           __________________________________
                                           John A. Dooley, Associate Justice

                                           __________________________________
                                           Marilyn S. Skoglund, Associate 
                                           Justice 

                                           __________________________________
                                           Frederic W. Allen, Chief Justice 
                                           (Ret.) Specially Assigned