Pregent v. New Hampshire Dept. of Employment Sec.

• Decision Date: 11 July 1973
• Docket Number: Civ. A. No. 72-160.
• Parties: Francis H. PREGENT v. NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY and Benjamin C. Adams, Commissioner of Employment Security.
• Court: U.S. District Court — District of New Hampshire

361 F. Supp. 782

Francis H. PREGENT v. NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY and Benjamin C. Adams, Commissioner of Employment Security.

Civ. A. No. 72-160.

United States District Court, D. New Hampshire.

July 11, 1973.

COPYRIGHT MATERIAL OMITTED

H. Neil Berkson, New Hampshire Legal Assistance, Keene, N. H., for plaintiff.

Joseph Stewart, State of New Hampshire, Dept. of Employment Security, Concord, N. H., for defendants.

Before McENTEE, Circuit Judge, and GARRITY and BOWNES, District Judges.

OPINION

BOWNES, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 alleging the deprivation of rights secured to the plaintiff by the Fourteenth Amendment to the United States Constitution and by Section 303(a)(1), (3) of the Social Security Act of 1935, as amended, 42 U.S. C. § 503(a)(1), (3)¹ and 26 U.S.C. § 3304(a)(5)(B).² Plaintiff seeks a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 declaring NH RSA 282:3, subd. C,³ both facially and as applied, to be in violation of the Due Process Clause of the Fourteenth Amendment and the determination procedures set forth in NH RSA 282:5, subd. B and 282:5, subd. C to be in violation of the Fourteenth Amendment and the Social Security Act and seeks a permanent injunction preventing enforcement of these provisions.⁴ Jurisdiction is based on 28 U.S.C. § 1343(3, 4).

A Three-Judge Court was duly convened⁵ as required by 28 U.S.C. §§ 2281 and 2284, and a hearing was held on May 25, 1973.

The following three constitutional issues have been raised:

First, whether a pretermination fair hearing is constitutionally required by the Due Process Clause of the Fourteenth Amendment and statutorily required by 42 U.S.C. § 503 (a)(1)⁶ where the New Hampshire Department of Employment Security (hereinafter called D.E.S.) seeks to suspend payment of unemployment compensation benefits because it has determined that a person who was initially eligible to receive unemployment compensation benefits has since become ineligible.

Second, whether the procedures by which the determination to terminate unemployment compensation benefits is made and by which post termination Appeal Tribunal hearings are conducted violate the Due Process Clause of the Fourteenth Amendment and deny the plaintiff a "fair and impartial hearing" in violation of 42 U.S.C. § 503(a)(3).⁷

Third, whether NH RSA 282:3, subd. C which defines "availability" is void for vagueness, either on its face or as applied, under the Due Process Clause of the Fourteenth Amendment.

The issue of the plaintiff's alleged entitlement to unemployment compensation benefits will not be decided by this court. NH RSA 282:5, subd. G(3) clearly indicates that the resolution of this issue is properly one for the state courts.

THE FACTS

Most of the essential facts have been stipulated.

Plaintiff, Francis H. Pregent (hereinafter called claimant), was sixty-six years old on June 11, 1971, when he was laid off from his job as an assistant shipping clerk with the Claremont Flock Corporation, Claremont, New Hampshire, because of a consolidation and reorganization of jobs within the company. For eight years prior to June 11, 1971, he had worked for the Claremont Flock Corporation as an assistant shipping clerk and was earning approximately $2.20 per hour at the time of his layoff. Prior to his job with the Claremont Flock Corporation, claimant had worked as a machine worker for various shoe companies, as a weaver and machine worker for woolen mills, and as a restaurant manager and owner. He had been working steadily, except for short periods of unemployment, since the age of fifteen.

On June 14, 1971, claimant filed a claim for unemployment benefits with the Claremont Office of the New Hampshire Department of Employment Security. On that same day, he also registered with the Employment Service of the D.E.S. The Employment Service is supposed to take the initiative in providing registrants with counselling and testing and in referring registrants to prospective employers. At the time that Pregent applied for benefits, he was given a "Rights and Obligations" pamphlet (Pl. Ex. 3) prepared by the D.E.S. which contained the following pertinent provisions:

* * * * * *

TO BE ELIGIBLE TO RECEIVE BENEFITS WITH RESPECT TO ANY WEEK:

5. You must be ready, willing and able to accept and perform suitable work on all the shifts, and during all the hours for which there is a market for the services you offer and you must expose yourself to employment to the extent commensurate with the economic conditions and the efforts of a reasonably prudent man seeking work.

* * * * * *

YOU WILL BE DISQUALIFIED FOR BENEFITS:

5. If you fail, without good cause, either to apply for available, situable work when so directed by the employment office or the Commissioner or to accept suitable work when offered you, or to return to your customary self-employment (if any) when so directed by the Commissioner.

Plaintiff's claim for unemployment compensation was approved by the D.E.S. The initial four weeks of unemployment benefits were denied, however, because claimant received four weeks of vacation and notification pay from the Claremont Flock Corporation. Thereafter, with the exception of the week ending September 25, 1971,⁸ Pregent received weekly unemployment benefits from July 11, 1971, through January 15, 1972. The Employment Service provided no counselling, testing, or job referrals to the claimant between June 14, 1971, and January 18, 1972.

Claimant requested that the D.E.S. assist him in trying to find work. On January 18, 1972, the Employment Service referred him to a part time night watchman's job in the Claremont area. Immediately after receiving this referral, claimant went to Davis and Symonds Lumber Company to discuss potential employment as a night watchman. He spoke with various employees of the company. On three separate occasions the claimant went to Davis and Symonds but was never able to speak with Mr. Munroe, the person in charge of personnel to whom he had been referred. During this same period, plaintiff spoke with two attorneys in Claremont, New Hampshire, one of whom was District Court Judge for Claremont, and the other of whom was and is County Attorney for Sullivan County. Both attorneys advised the claimant that, because of his age, physical condition, and previous experience, the night watchman's job would be quite dangerous because the company in question employed persons with criminal records who were known to get into fights and that these persons and their friends tended to frequent the company premises during the early morning hours when the plaintiff, if he was hired for the job, would be working. On January, 25, 1972, the claimant advised Mr. Blair, an interviewer with the D.E.S., in writing that "due to the fact that Davis and Symonds is a dangerous place to work, my lawyer advised me not to take a job there." (Pl. Ex. 2). On January 28, 1972, claimant received initial notification of disqualification from benefits in a written determination by Emmett E. Williams, Jr., certifying officer of the D.E.S. (Pl. Ex. 1). Williams notified claimant in writing of the reasons for denial of benefits, as follows:

On 1/19/72 you were given a referral to Davis & Symonds Lumber for a job as watchman. You returned the introduction card and stated that your lawyer had told you not to take the job. Davis & Symonds indicated they had no application and no knowledge of your having been there for an interview. On 1/25/72 you stated that Davis & Symonds was a dangerous place to work, and your lawyer had advised you not to take the job. You declined to provide further information, but stated we should call your attorney.

On the basis of the interviewer's findings, the certifying officer determined that claimant had refused to apply for suitable work and denied him benefits for the week of occurrence and for the three following weeks through February 12, 1972. This determination was in accordance with NH RSA 282:4, subd. M, which authorizes a four-week denial of unemployment compensation benefits when there has been a finding that available, suitable work, as defined in the statute, has been refused without good cause. The certifying officer further determined that claimant placed limitations on his availability which removed him from the normal labor market and, therefore, disallowed all benefits from January 19, 1972. This second finding of "unavailability" pursuant to NH RSA 282:3, subd. C, as distinct from the finding of "refusal to apply for suitable work," carries with it an indefinite termination of unemployment benefits. Claimant's benefits were immediately terminated, retroactive to January 19, 1972.

Mr. Williams, the certifying officer, testified that he did not call claimant's attorney to get any further information with regard to the alleged danger of the night watchman's job despite claimant's request that he do so. Williams made no written findings of fact, either prior to or subsequent to his determination, as to whether the night watchman's job was "suitable" for the claimant in accordance with NH RSA 282:4, subd. M(1)(a)-(g). Williams did not and does not know what the prevailing weekly wages in the Claremont, New Hampshire, area are. Williams testified that the prevailing weekly hours in the locality range from thirty-seven to forty-eight, depending on the type of job. Williams did not know what the weekly wages for the night watchman's job were nor did he know what the working hours were. He did state, however, that the job was part time and that, therefore, the weekly hours would probably be less than thirty-seven.

NH RSA 282:3, subd. C states that:

An unemployed individual shall be eligible to receive benefits with respect to any week only if the commissioner finds that:

C. He is ready, willing and able to accept and perform suitable work on all the shifts, except that women shall not

...