Blue v. Dep't of Labor, 2011-051

• Decision Date: 28 July 2011
• Docket Number: No. 2011-051,2011-051
• Court: Vermont Supreme Court
• Parties: Katrina Blue v. Department of Labor and Hickok & Boardman Realty, Inc.

2011 VT 84

Katrina Blue v. Department of Labor and Hickok & Boardman Realty, Inc.

No. 2011-051

Supreme Court On Appeal from Employment Security Board

Filed: July 28, 2011

May Term, 2011

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.

Mary Anne Gucciardi and Michael Rogers, Board Members James W. Runcie of Ouimette & Runcie, Vergennes, for Claimant-Appellant.

Kerin E. Stackpole of Bergeron, Paradis & Fitzpatrick, LLP, Burlington, for Respondent-Appellee.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. JOHNSON, J. Claimant Katrina Blue appeals from an Employment Security Board decision denying her claim for unemployment compensation benefits. Claimant contends the Board erred in: (1) finding that she was disqualified from receiving benefits because she left her employment voluntarily; and (2) assigning her the burden of proof. We reverse and remand.

¶ 2. Claimant worked for about four years for Hickok & Boardman Realty. In the early summer of 2010, claimant left her employment to participate in a three-month cross-country bicycle ride for multiple sclerosis in honor of her father, who had died from the disease in 2006. The circumstances of her leaving was the principal subject of dispute below. Claimant testified that she asked her supervisor for a three-month unpaid leave of absence and that her supervisor granted the request and agreed that claimant could return to her position on September 1, 2010. Claimant also testified that, in the expectation of returning, she left a number of personal belongings in her office, including photographs and a nameplate, although she acknowledged that she received a check for accrued vacation time when she left and chose not to continue her health benefits. Claimant also acknowledged that she did not submit a written request for leave, as required in the company's personnel policy, which states that employees who apply for unpaid personal leave "must apply in writing" and that "reinstatement is not guaranteed" but rather "at the Company's sole discretion." While thus conceding that her leave arrangement "was not typical," claimant maintained that her supervisor had agreed "that an exception would be made in this instance."

¶ 3. Claimant's supervisor remembered matters differently. She testified that claimant asked for the leave about a year in advance, in June 2009, and was told at the time that "it was going to be very difficult" because summer was a busy time of year and further that "leaves of absence weren't part of our practice." According to the supervisor, claimant did not renew the request but instead left on the bicycle trip without a formal leave of absence and with no promise of a job on her return. The supervisor acknowledged that claimant's name remained on the company's website and that her log-in and password remained active through the summer that she was away.

¶ 4. There is no dispute that employer hired several people to perform claimant's work functions during her absence, two interns and one temporary part-time employee. Nor is it disputed that, when claimant returned to Vermont in late August 2010 and contacted her employer about returning to work, she was informed that the part-time employee had been hired on a fulltime basis to replace her. The only other witness, a former employee of Hickok & Boardman, recalled that other employees in the office "believed that [claimant] was . . . taking a leave of absence from her employment, and coming back, and her job was there waiting for her." She specifically recalled claimant's supervisor stating that claimant would be back on September 1.

¶ 5. In its ruling, the ALJ's sparse findings indicate that claimant "requested a three-month leave of absence" but do not state whether the request was granted or, if so, on what terms. Its key conclusion, however, is that "[w]hile the claimant maintains that she was fired when the employer would not allow her to come back from a personal leave of absence, it was the claimant who initiated the separation from employment by requesting the leave of absence . . . thus making this a voluntary separation from employment." Since there was no claim that the separation was for "good cause attributable" to the employer, the ALJ concluded that claimant was disqualified from receiving benefits. See 21 V.S.A. § 1344(a)(2)(A) (providing that an individual shall be disqualified from benefits where he or she "has left the employ of his or her last employing unit voluntarily without good cause attributable to the employing unit"). In a divided ruling, the Employment Security Board adopted the ALJ's findings and conclusions and sustained its decision. The dissenting member of the Board would have found that claimant's "departure for her cross-country ride was . . . not a voluntary abandonment of her employment, but a temporary unpaid leave of absence," that claimant was let go upon her return in late August, and therefore that she was entitled to unemployment compensation benefits from that time forward. This appeal followed.

¶ 6. Our review of Board decisions is limited. We will uphold its factual findings unless clearly erroneous, and its conclusions if reasonably supported by the findings. Bouchard v. Dep't of Emp't & Training, 174 Vt. 588, 589, 816 A.2d 508, 510 (2002) (mem.). We will also generally defer to its interpretations of the statutes it is charged with administering, while mindful that they "must be construed liberally in favor of claimants" to compensate employees laid off involuntarily through no fault of their own. Howard v. Dep't of Emp't & Training, 153 Vt. 614, 616, 572 A.2d 931, 932 (1990).

¶ 7. "The claimant has the burden of showing his initial eligibility for benefits." In re Therrien, 132 Vt. 535, 537, 325 A.2d 357, 358 (1974). Once the claimant has established the basic elements of employment and termination, however, many courts have held—consistent with the broadly remedial nature of the unemployment compensation scheme—that a termination "is presumed to be involuntary unless the employer fulfills its burden of proving the employee left voluntarily." Berkley v. D.C. Transit, Inc., 950 A.2d 749, 757 (D.C. 2008) (quotation omitted); see, e.g., Green v. D. C. Dep't of Emp't Servs., 499 A.2d 870, 874-76 (D.C. 1985) (holding that presumption of involuntariness comports with rule that unemployment statute must be construed liberally to accomplish legislative objective of minimizing economic burden of unemployment); Lewis v. Lakeland Health Care Ctr., Inc., 685 So. 2d 876, 878 (Fla. Dist. Ct. App. 1996) ("Given the public policy of, and the statutory requirement to liberally construe [unemployment statute] we hold that the employer has the initial burden to establish that the employee voluntarily left the employment."); Wiese v. Iowa Dep't of Job Serv., 389 N.W.2d 676, 679 (Iowa 1986) (interpreting agency rule providing that "the burden of proof is upon the employer to establish that the separation was a voluntary leaving of employment") (quotation omitted); Souder v. Ziegler, Inc., 424 N.W.2d 834, 836 (Minn. Ct. App. 1988) ("The employer has the burden of proving the employee voluntarily quit his employment."); In re Johnson, 337 N.W.2d 442, 446 (S.D. 1983) (holding that employer had burden of proving employee voluntarily quit and therefore was ineligible for benefits); Hutter, Inc. v. Va. Emp't Comm'n, 652 S.E.2d 151, 154 (Va. Ct. App. 2007) ("[T]he burden is on the employer to prove that the claimant left work voluntarily.") (quotation omitted); Holy Name Sch. v. Dep't of Indus., Labor & Human Relations, 326 N.W.2d 121, 125 (Wis. Ct. App. 1982) (holding that law presumes employee was not disqualified from unemployment benefits).

¶ 8. Once the employer has shown a voluntary departure, however, the burden is generally on the employee to prove that he or she quit for good cause attributable to the employer. See, e.g., Berkley, 950 A.2d at 761 (where employer proves that termination was voluntary, employee must prove that she left "for good cause"); Borakove v. Fla. Unemployment Appeals Comm'n, 14 So. 3d 249, 251 (Fla. Dist. Ct. App. 2009) (once employer has met "the initial burden to establish that the employee voluntarily left employment . . . then the employee must present evidence to prove that he or she left the employment for good cause attributable to the employer" (quotation omitted)); Marz v. Dep't of Emp't Servs., 256 N.W.2d 287, 289 (Minn. 1977) (holding that once employer has sustained burden of "showing the employee has voluntarily left his employment . . . [t]he burden then shifts to the employee to show good cause attributable to the employer for leaving").

¶ 9. Although this approach is not employed everywhere, see, e.g., Carlisle v. Dir., Dep't of Indus. Relations, 494 So. 2d 437, 439 (Ala. Civ. App. 1986) (holding that claimant "has the burden of showing his lack of disqualification"); C. Hall, Annotation, Unemployment Compensation: Burden of Proof as to Voluntariness of Separation, 73 A.L.R.4th 1093 (1989) (collecting cases), it is broadly consistent with the remedial purposes of our unemployment compensation statute and case law. See Fleece on Earth v. Dep't of Emp't & Training, 2007 VT 29, ¶ 5, 181 Vt. 458, 923 A.2d 594 (reaffirming principle that unemployment compensation act is a "remedial law, having benevolent objectives, and must be given liberal construction"); Isabelle v. Dep't of Emp't & Training, 150 Vt. 458, 460, 554 A.2d 660, 661 (1988) (noting that that employee had burden to prove good cause for voluntarily leaving employment). Therefore, as explained below, the hearing officer in this case must...