Appeal of Bosselait

• Decision Date: 08 July 1988
• Docket Number: No. 87-159,87-159
• Citation: 130 N.H. 604,547 A.2d 682
• Parties: APPEAL OF Albert and Edward BOSSELAIT (New Hampshire Department of Employment Security).
• Court: New Hampshire Supreme Court

Page 682

547 A.2d 682

130 N.H. 604

APPEAL OF Albert and Edward BOSSELAIT (New Hampshire Department of Employment Security).

No. 87-159.

Supreme Court of New Hampshire.

July 8, 1988.

Bruce E. Friedman, Franklin Pierce Law Center Civil Practice Clinic, Concord, by brief and orally, for plaintiffs.

Stephen E. Merrill, Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the brief and orally), for the State.

SOUTER, Justice.

Two formerly part-time employees bring this appeal under RSA 282-A:67, I, from an order of an appeal tribunal of the department of employment security (DES), which denied them unemployment compensation because they were not "ready, willing and able" to accept and perform full-time work. We affirm.

The plaintiffs, Albert and Edward Bosselait, are brothers, who were 76 and 79 years old, respectively, at the time they filed their claims for benefits. For 22 years they shared a single full-time janitor's position at the Spaulding Youth Center in Northfield, each of them working four hours a day. It is not disputed that during the relevant time Spaulding was an employer within the meaning of the unemployment compensation act, see RSA 282-A:8, although it took advantage of its status as a charitable corporation to become in effect a self-insurer against any claims its employees might bring for benefits on account of unemployment, see RSA 282-A:69, II.

In 1986, Spaulding contracted with a third party for custodial services and eliminated about 35 positions, including the job held jointly by the plaintiffs. Following their discharge on June 30, 1986, the plaintiffs applied to DES for unemployment compensation benefits, and when a certifying officer rejected their claims, see RSA 282-A:44, they applied to an appeal tribunal within the department, see RSA 282-A:53. The tribunal held an evidentiary hearing, at which the plaintiffs were assisted by a lay representative, and each of them testified about limitations on his capacity to work. Mr. Albert Bosselait represented that he had a "weak back [that] goes out of joint when least expected" and his brother indicated that he was limited by partial eyesight and angina. They indicated forthrightly that they would not accept new jobs calling for more than four hours of work each day. Mr. Edward Bosselait testified that "we don't dare to work more than four hours a day at our age," and said that he was "not gonna play with [his] health."

When the tribunal called attention to the statutory eligibility requirement that an applicant must be "available for and seeking permanent, full-time work," see RSA 282-A:31, I(d), Mr. Edward Bosselait responded that "I think [the statute is] discriminating against old fellas ... old people." The tribunal found each plaintiff ineligible because he was "not ready, willing and able" to accept full-time work as the statute required. See RSA 282-A:31, I(c).

After the appeal tribunal's decision, the plaintiffs obtained legal counsel, who requested the commissioner of DES to reopen the case before the tribunal, based on State and federal equal protection claims and general allegations that subparagraph (d) violated State and federal statutes prohibiting discrimination against mothers, the handicapped, and people over 65. When the commissioner refused to reopen, the plaintiffs appealed the appeal tribunal decision to the appellate division of DES, see RSA 282-A:62, purporting to raise a State equal protection claim, and asserting a governmental obligation to provide unemployment compensation to mothers, the handicapped, and the elderly, who may be limited to part-time work. (The procedural history from appeal tribunal to appellate division is complicated in the extreme. See Appeal of Albert Bosselait & a., N.H.Supr.Ct. No. 86-430. Fortunately, its details have no bearing on the present appeal.)

The appellate division noted that it was admitted that the plaintiffs were physically able to work only four hours a day, but rejected claims that subparagraph (d) violated the State equal protection standard and conflicted with § 504 of the federal Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (Supp.1988). The appeal to this court under RSA 282-A:67 ensued. As we have explained elsewhere, see Appeal of Kelly, 129 N.H. 462, 466, 529 A.2d 935, 937 (1987), our jurisdiction is limited to reviewing the record of the appeal tribunal for errors of law, see RSA 282-A:67, IV, except insofar as that record may have been clarified or the issues limited in the course of subsequent proceedings before the appellate division.

The plaintiffs have challenged the denial of benefits by seeking to raise three issues before us. They claim that subparagraph (d) violates the federal Age Discrimination Act of 1975, 42 U.S.C.A. § 6101 et seq. (1983); that it violates the federal Rehabilitation Act of 1973, 29 U.S.C.A. § 791 et seq.; and that it violates State and federal constitutional guarantees of equal protection of the laws. Not one of these issues, however, has been both timely raised below and preserved for consideration on appeal.

Under our Rule 10(1)(c), a party appealing from an administrative agency is limited to the questions "set forth in the petition [for appeal] or fairly comprised therein...." The petition in this case sets out two questions, each of them raising an issue of equal protection under the State and National Constitutions. Any federal statutory issues were thus waived, although it does not appear that they were ever adequately raised before the appeal tribunal.

The record below contains no reference to the Age Discrimination Act, 42 U.S.C.A. § 6101 et seq., and although Mr. Edward Bosselait stated before the appeal tribunal that he thought subparagraph (d) discriminated against the elderly, his remark could not reasonably have been understood as initiating a statutory claim under federal law. The review of proceedings before the appeal tribunal is likewise devoid of any reference to a claim under the Rehabilitation Act, 29 U.S.C.A. § 791 et seq. While the plaintiffs referred to their physical limitations, their remarks, again, were insufficient to put the tribunal on notice that it should address the factual as well as legal issues peculiar to such a federal statutory claim.

Thus it appears from the record that the plaintiffs not only failed to raise the statutory issues in their appeal petition to us, but failed to raise them initially in the trial forum of the appeal tribunal. Their belated attempts to inject the statutory issues into the appeal at this point therefore run afoul of our rule that "issues [must be] raised at the earliest possible time, because trial forums should have a full opportunity to come to sound conclusions and to correct [claimed] errors in the first instance." Sklar Realty v. Town of Merrimack, 125 N.H. 321, 328, 480 A.2d 149, 153 (1984) (citation omitted). To this we may add that unless a claim is raised in the trial forum, there is no opportunity for a party to develop a factual record supporting his theory of relief, or to make an offer of proof sufficient to justify a demand to introduce relevant evidence and preserve an issue for appeal. (The commissioner of DES is, of course, authorized by RSA 282-A:60 to permit a claimant to reopen a case within the time allowed in order to raise a new issue before an appeal tribunal, if the claimant has a reasonable explanation for his previous failure to raise the issue and can give an indication of legal and factual support for the position he wishes to take.)

Sklar is equally applicable, moreover, to bar consideration of the equal protection questions that the plaintiffs purport to preserve by listing them in this appeal petition, for these constitutional issues were never adequately raised before the appeal tribunal. While, as we noted above, one plaintiff expressed the view that subparagraph (d) was discriminatory against the aged, neither he nor anyone on his behalf expressed the view that the statute was therefore invalid as working a denial of equal protection. Since many statutes are candidates for enlightened amendment without thereby being in any way unconstitutional, the plaintiff's remark was not sufficient to put anyone on notice that he thereby meant to raise a constitutional issue. (We have not overlooked the fact that the plaintiffs sought to raise a State equal protection claim in the appellate division. The appellate division, however, is not the forum of trial where issues may be raised initially in accordance with Sklar and like cases. The division provides an intermediate administrative appeal, in which issues previously raised may be waived or narrowed; it does not provide an opportunity to raise new issues for the first time. See Appeal of Kelly, 129 N.H. at 466, 529 A.2d at 937.)

We must in candor say, therefore, that if the state of the record had been adequately disclosed to us we would not have accepted this appeal. See Sup.Ct.R. 10. Because, however, the appellate division saw fit to deal with an issue under the Rehabilitation Act and to conclude that there was no violation of the State equal protection guarantee, and because similar claims may be raised in the future, there is some utility in speaking to these issues here, rather than merely entering the summary affirmance that would be proper under Rule 25(1)(d).

Consideration of the claim under the Rehabilitation Act begins with the text of § 504, which is codified as 29 U.S.C.A. § 794 (Supp.1988) "No otherwise qualified individual with handicaps ... shall, solely by reason of his handicap ... be denied the benefits of ... any program ... receiving Federal financial assistance."

"Individual with handicap" is defined as a person who has a

"physical or mental impairment which substantially limits one or more of [a] person's major life activities,"

id. § 706(8)(B)(i), such as

"caring for one's self, performing manual tasks, walking, seeing, hearing, speaking,...