This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
Appeal from: ESB. DOCKET NO. 09-13-114-05.
Reiber, C. J., Skoglund, and Crawford, JJ.
In the above-entitled cause, the Clerk will enter:
Claimant appeals from a decision of the Employment Security Board denying her claim for unemployment benefits. We reverse.
On August 7, 2013, after working for G.S. Precision for twenty-eight years as a machine tool operator, claimant gave her employer two-week notice of her intention to quit her job. On August 23, she filed a claim for unemployment benefits. The claims adjudicator determined that claimant had left her employment voluntarily without good cause attributable to her employer and thus was disqualified for benefits. See 21 V.S.A. § 1344(a)(2)(A). Following a telephone hearing in which claimant was the only person to present any testimony, the administrative law judge (ALJ) upheld the decision of the claims adjudicator. After obtaining legal representation, claimant filed a brief and presented oral argument before the Employment Security Board, which upheld the ALJ's determination in a 2-1 split decision. On appeal to this Court, claimant argues that the Board made erroneous findings and conclusions and also failed to make findings on key facts raised in her uncontested testimony concerning her reasons for quitting her job.
At the hearing before the ALJ, claimant stated, in response to the ALJ's query, that she gave notice on August 7 because: (1) she had received a written warning the day before based on false information; and (2) her supervisor had been harassing her for the past two years. She alleged that she had been constructively terminated by virtue of her supervisor belittling and humiliating her. As examples of this behavior, she testified that he would call her a dizzy blonde and that he made her ask permission every time she changed a tool, even though she had been working for the company for twenty-eight years.
She testified that approximately one year before she gave notice she filed a complaint with the Employee Assistance Program (EAP), but was told that being a " jerk" was not unlawful and that she should contact her human resources (HR) department, which she did. According to claimant, the HR department told her that she would have to show a pattern of harassing behavior by the supervisor. She speculated that the HR department must have said something to him because she noticed that his behavior " got a little bit better for a while." She claimed, however, that his behavior toward her worsened after he found out at a personnel meeting that she had complained to the EAP about him.
Claimant further testified that about a week before she quit, her supervisor spitefully denied her request to allow her to take paid vacation time for a single sick day. She testified that years earlier the company had taken away sick time and personal days so that employees were forced to take accumulated vacation time if they wanted to get paid for sick days. She stated that on the day in question, she called in and asked for permission to take vacation time for a sick day. Claimant later learned when she got her next paycheck that she was not paid for that day. According to claimant, when she asked her supervisor why, he simply said " because I didn't approve it, and just nodded his head, kind of like, take that or that's that." She alleged that he denied the vacation time to retaliate against her because she had reported his harassing behavior to the EAP and the HR department.
She complained to HR personnel about her supervisor denying her vacation time, but, according to claimant, days passed with no response. When she was finally called into a meeting with her supervisor and HR personnel on August 6, 2013, she assumed that they were going to address her complaint that the supervisor had retaliated against her by refusing to allow her to take vacation time on a sick day. Instead, she was given a written warning for low productivity and for not following procedure by not getting her supervisor's permission when changing tools. She testified that in fact she had properly followed procedure because her supervisor had told her that she could obtain permission from another supervisor or lead person when her supervisor was not around, and she always did that.
The next day, claimant gave her two-week notice. She testified that she told her supervisor's boss that she was giving her notice because her supervisor was harassing her. According to claimant, when she asked the boss whether she should give notice, he advised that she should if she " didn't want to burn any bridges." When the ALJ asked claimant whether she would have given her notice on August 7 if she had not been given a written warning the day before, she responded: " Probably not. I would have probably endured it some more, because like I said I had been enduring this for some time." Claimant further stated that she could see that the company was trying to push her out and in fact had already hired a young man to take her place. According to claimant, she " just couldn't take anymore" after years of harassment.
Claimant's employer did not take part in the proceedings below, and thus claimant's testimony was uncontroverted. Moreover, neither the ALJ nor the Board found any of her testimony lacking in credibility. In determining that claimant left her employment without good cause attributable to the employer, the ALJ found that claimant felt like she was being harassed, but that her employer acted within its discretion in not allowing her to use vacation time and in giving her a written warning based on its assessment of her work. The two-member Board majority added a few findings but essentially adopted the ALJ's reasoning, concluding that: (1) claimant's allegations of ill treatment by her supervisor did not rise to the level of sexual harassment or a hostile work environment; (2) nothing in the record suggested that the August 6 written warning contained a threat of termination; (3) claimant did not ...