Opinion
SUPREME COURT DOCKET NO. 2012-053
08-31-2012
Kathleen Laughy v. Department of Labor (Larks Inn, LP, Howard Johnson Hotels, Employer)
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Employment Security Board
DOCKET NO. 10-11-071-12
In the above-entitled cause, the Clerk will enter:
Claimant appeals the Employment Security Board's decision upholding the administrative law judge's denial of her claim for unemployment benefits. We affirm.
Claimant had been employed by Larks Inn, LP for nearly seven years at the time she left her job as Executive Housekeeper. The event that precipitated her resignation was the new area manager's discharge of her assistant, who was also her husband, on Thursday, August 25, 2011. Upset over the turn of events, claimant informed her manager that she was sick and was going home for the day with her husband. The manager told claimant that he thought she was lying about being ill, but did not attempt to prevent her from leaving. Claimant returned to work the next day, Friday, August 26, and discovered that her password had been changed on her computer. She met briefly with the manager, who restored the password. The parties disputed whether claimant was still able to access all of the functions that she had previously had on her computer. Claimant worked the next three days, August 27-29, during which time the manager was not at the hotel. August 29 turned out to be claimant's last day at the hotel.
On August 27, claimant wrote a letter to the owners of the hotel asking to meet with them to discuss the recent developments. In the letter, she stated that the manager had made verbal personal attacks upon her character and that he and other employees had created a hostile work environment and interfered with her usual and customary responsibilities at the hotel. The owners met with claimant on August 30, the first of her usual two days off during the week. Two days later, on September 1, when claimant was due back at work, she faxed the owners another letter, stating that her working environment was intolerable and requesting that the owners: (1) reinstate her husband as her assistant; (2) ask the manager to apologize to her for the verbal attacks on her character and to cooperate with her with respect to her duties at the hotel; and (3) restore all of computer settings as they existed before August 25.
On September 2, claimant went to her health care provider, who wrote a note stating that claimant "is suffering from severe anxiety due to job related stress and will benefit from our ongoing treatment and rest at home for the next week." The note stated that claimant "is advised to return to work duty in one week on September 9, 2011." On September 8, claimant sent the owners a letter stating that "I hesitantly, and sadly, involuntarily resign" because of the existence of a hostile work environment and their failure to provide remedies and assurances that would allow her to return to work and do her job.
Following her resignation, claimant sought to obtain unemployment benefits. On the fact-finding form for the Department of Labor, claimant stated that her work situation had become intolerable because her manager had called her a liar, questioned her self-respect, gutted her computer, and fired her assistant. She further stated that the owners "told me that I needed to talk it out with the general manager. Which I couldn't do." She indicated that she "had a doctor's note to not work for a week," but "couldn't bring [her]self to go back there." In response to other questions on the form, claimant stated that "[e]verything was fine until they fired my executive assistant" and that the owners told her she needed to speak to the manager, but she did not do so. Based on claimant's submissions, the claims adjudicator determined that claimant was not entitled to unemployment benefits because she had left her job voluntarily without good cause attributable to her employer. See 21 V.S.A. § 1344(a)(2)(A).
Claimant appealed, and a hearing was held before the administrative law judge (ALJ). When asked why she was no longer working at the hotel, claimant stated that the manager "fired my assistant, [who] happened to be my husband." She further stated that the manager refused to speak to her about the firing of her assistant and then told her she was lying when she said she was ill and had to go home. She testified that when she came in the next day, the manager said he was surprised to see her back and questioned her self-respect. Claimant also stated that many of her computer functions had been removed. She testified that when she talked to the owners about the situation, "[they] told me I had to work it out with [the manager], which I didn't feel [was] possible whatsoever." Claimant testified that the owners never responded to the letter she wrote to them after their meeting. Finally, claimant stated that she and her doctor had "agreed that my quitting . . . was the thing that I should have done."
For his part, the manager testified at the ALJ hearing that he took over as area and general manager to address the owners' concerns about how the property was being managed. He stated that claimant confronted him angrily after he let go her husband and that the next day she told him that she did not believe that they could reach a common ground, but that she was committed to her job. He testified that he changed claimant's password so that others could do her work after she left for the day claiming to be ill, and that he reinstated the password and everything else on the computer the following day when claimant returned to work
Following the hearing, the ALJ upheld the claims adjudicator's decision, concluding that claimant had voluntarily quit her job without good cause attributable to her employer. According to the ALJ, the primary reason for claimant's resignation was the termination of her husband, and there was no indication that the manager was acting outside his normal prerogative when he fired her husband. The ALJ found that the manager's suggestion to claimant that she was lying about being ill was an unfortunate but isolated incident. The ALJ concluded that the manager had credibly testified that he changed claimant's password to allow others to do her work while she was gone. Finally, the ALJ concluded that the employer was not bound to honor claimant's list of demands, and that claimant had failed to discuss her concerns with the manager, as recommended by the owners. Claimant appealed, and the Board upheld the ALJ's ruling, concluding that while claimant was understandably distraught over her husband's termination, she did not give her employer a reasonable opportunity to address her job concerns prior to her resignation.
On appeal to this Court, claimant challenges several of the ALJ's findings as well as its ultimate conclusion that she left her job voluntarily without good cause attributable to her employer. The standard of review in this area is well-settled. "A claimant who seeks unemployment benefits after having resigned a position bears the burden of proving that her resignation was for good cause." Isabelle v. Dep't of Emp't & Training, 150 Vt. 458, 460 (1988). "In determining what constitutes 'good cause,' we must review each case according to a standard of reasonableness—i.e., what a reasonable person would have done in the same circumstances." Id. "The question of whether a resignation is for good cause attributable to the employer is a matter within the special expertise of the Board, and its decision is entitled to great weight on appeal." Cook v. Dep't of Emp't & Training, 143 Vt. 497, 501 (1983). Our job on appeal is not to reconsider the testimony of each side to decide which one we believe. "The findings of the Board will be affirmed by this Court if they are supported by credible evidence, even if there is substantial evidence to the contrary." Id. The Board is the sole arbiter of the weight, credibility, and persuasive effect of the evidence. Id.
On appeal, claimant asserts that her husband was fired because of his attempts to help international students working at the hotel, whom she claims were being cheated by a middleman friendly with the manager. She further contends that, after firing her husband, the manager tried to force her to quit by verbally abusing her and gutting her computer so that she could not access functions necessary for her job. In so arguing, she challenges numerous ALJ findings, including those concerning her relationship with the manager before he fired her husband, the reason for her husband's discharge, the need to change claimant's password, the extent to which the manager restored claimant's computer functions, her ability or willingness to continue to work with the manager, what the owners told her at her meeting with them, what her doctor recommended, and the extent to which she communicated with the manager after meeting with the owners.
Many of the challenged findings are supported by the evidence submitted by claimant, including her own testimony at the ALJ hearing. For example, on the fact-finding form for the claims adjudicator, claimant indicated that everything was fine until her husband was fired, that she did not ask the manager why she could not access all of her old functions on her computer, and that she did not speak to the manager after the owners suggested that she talk to him to work out their differences. At the ALJ hearing, she testified that she no longer worked at the hotel because they fired her assistant, who happened to be her husband, and that she did not take kindly to being called a liar for saying that she was ill and had to go home after her husband was fired. She acknowledged that the owners had asked her to work things out with the manager, but that she "didn't feel it possible whatsoever." She also testified that the owners never got back to her after she sent them her September 1 letter with a list of requests, which is consistent with what the ALJ found but not consistent with what claimant alleges on appeal.
Claimant cites three reasons for resigning her position at the hotel. First, she claims that her husband was wrongfully discharged for helping international employees of the hotel who were being cheated by a man friendly with the manager, and that the manager retaliated against her and her husband on account of his whistleblowing activities. This assertion was not part of the record before the ALJ and was never mentioned at the ALJ hearing. For that reason, we cannot now, on appeal, consider claimant's arguments relating to alleged retaliation against her and her husband for whistleblowing activities, and there is no basis to challenge the ALJ's finding that nothing in the record suggested the manager acted outside his prerogative in firing claimant's husband. See Hoover v. Hoover, 171 Vt. 256, 258 (2000) ("[O]ur review is confined to the record and evidence adduced at trial. On appeal, we cannot consider facts not in the record.").
Second, she claims that the manager subjected her to verbal abuse. The ALJ acknowledged that the manager told claimant he believed she was lying when she said she was ill shortly after he fired her husband, but considered the comment to be an isolated incident. Claimant also contends that when she arrived at the hotel the day after her husband was fired the manager suggested she had no self-respect. The manager denied making the alleged comment. The ALJ did not mention this comment in his decision, but even assuming the manager made the comment, it would not undermine the ALJ's determination that claimant left her employ without good cause attributable to her employer. The evidence presented to the ALJ does not reflect a pattern of verbal abuse in this case, but rather at most two callous remarks made within a short period of time under difficult circumstances. Cf. Turco v. Dep't of Emp't Sec., 141 Vt. 135, 138 (1982) (concluding that employee was justified in quitting where there was history of harassment and employer knew of it but refused to address problem).
Finally, claimant alleges that the manager denied her access to many of the computer functions she needed to do her work. The manager testified that he thought he had restored those functions and that the issue had been resolved. The ALJ found that he had restored the functions. Claimant notes that in her September 1 letter to the owners, she asked that her computer functions be restored, thereby demonstrating that they had not been restored at that point as claimed by the manager and found by the ALJ. Even if we assume, as claimant alleges, that she continued to lack computer functions during the four-day period after her husband was fired, she indicated on her fact-finding form that she did not ask the manager why she lacked access to those functions, and, in any event, she testified that she never contacted the manager again after August 26, the day after her husband was fired. She also testified that the manager was not even at the hotel from August 27 through August 29, her last day of work. These facts support the Board's conclusion that claimant failed to give her employer a reasonable opportunity to correct any concerns she had regarding her working conditions. See Bombard v. Dep't of Labor, 2010 VT 100, ¶ 10, 189 Vt. 528 (mem.) ("Before terminating employment unilaterally, an employee must make some effort to remedy alleged poor working conditions or demonstrate that such effort would be unavailing."); Rushlow v. Dep't of Emp't & Training, 144 Vt. 328, 331 (1984) (same). Claimant also included in her printed case an affidavit from a relief supervisor that, claimant argues, rebuts the manager's testimony that he had to reset her computer password. We do not find this affidavit in the record of evidence presented below, so we cannot consider it here.
Affirmed.
BY THE COURT:
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
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Beth Robinson, Associate Justice