Demar v. Department of Labor

¶ 1. Claimant appeals from the Employment Security Board’s decision denying her request for unemployment benefits based on its conclusion that she left her job voluntarily without good cause attributable to her employer. We affirm.

¶ 2. For the most part, the material facts are not in dispute. Claimant was employed as a preschool teacher at a daycare center. She was hired in the spring of 2008 at an hourly rate of $12.75, with five paid vacation days. She was also given the title of director with the understanding that it would not entail any additional duties. In the late fall of 2008, the daycare began losing students in the *578economic downturn. After speaking to her accountant, the employer realized that she would have to cut costs. Claimant’s hours were cut back from forty per week to thirty-six. Then, on January 26, 2009, the employer and claimant met to review claimant’s work at the daycare. At the meeting, the employer informed claimant that her pay would be reduced to an hourly rate of $10.50, that her paid vacation days would be reduced to two, and that she would no longer keep the director’s title. The employer presented claimant with a written evaluation noting some deficiencies in her work, but it was apparent that the principal reason for the cut in pay was the daycare’s financial situation. Claimant was not happy about the pay reduction and declined to sign the evaluation, but she continued to work at the daycare.

¶3. On March 8, the employer sent claimant a text message asking her if she would be willing to go back to a forty-hour work week. Claimant indicated that she might, but wondered when her pay would go back up. The employer did not respond. On Friday, March 13, claimant took the day off to have her truck repaired and then called the employer to let her know that she would need another day off the following week to pick up the truck. After the employer hung up on claimant, a testy exchange of text messages ensued. Each accused the other of acting disrespectfully. Claimant expressed her continuing displeasure at the earlier cut in pay. The employer thread ened to put a written warning in claimant’s file if she took time off without permission. On Saturday, March 21, the employer sent claimant a text message indicating that they had mandatory training Thursday evening, March 26, in conjunction with the center’s contract with the Head Start program. Claimant protested when the employer informed her that she would not be paid for attending the meeting. The employer suggested that she and claimant meet to discuss their differences. Claimant agreed, but requested the presence of a neutral third party. The employer refused to include a third party, but said that she would be willing to meet the next day. Claimant stated that she would not be there.

¶4. On Sunday, March 22, claimant sent a text message to the employer saying that she did not feel well and would not be coming to work the next day. On Tuesday, March 24, claimant sent the employer a text message stating that she and her boyfriend had talked and decided that it would not be a good idea for her to continue to work for the daycare. As it turned out, claimant’s last day of work was Friday, March 20.

¶ 5. After she quit her job, claimant sought unemployment benefits. Her claim was initially denied by a claims adjudicator based on her failure to demonstrate that she left her last job for good cause attributable to her employer. See 21 V.S.A. § 1344(a)(2)(A) (individual disqualified for benefits if “[h]e or she has left the employ of his or her last employing unit voluntarily without good cause attributable to such employing unit”). Following a telephonic merits hearing, an administrative law judge upheld the claim adjudicator’s decision. The administrative law judge concluded that the proximate cause of claimant’s decision to quit her job was the March 21 text-message exchange and the underlying issue concerning the employer’s insistence that claimant attend the Head Start training session without compensation. The Employment Security Board affirmed the administrative law judge’s decision. At the hearing before the Board, claimant, who was represented by counsel at the time, argued that the issue concerning the Head Start meeting was merely the last of a series of issues dating back to the employer’s January 26 decision to cut claimant’s pay. According to claimant, she stayed on the job after the pay reduction to try and *579work things out, but eventually realized that it was not possible. The Board rejected this argument, stating that the evidence demonstrated that the proximate cause of her decision to quit her job was the March 21 text-message exchange in which the employer required her to attend the Head Start training without pay. According to the Board, it was unreasonable for claimant to refuse to discuss the matter with the employer without the presence of a third party.

¶ 6. On appeal, claimant argues that the employer’s acts, particularly the decision to cut her pay and vacation time, caused her to quit her job. This argument does not directly address the basis for the Board’s decision. As the Board intimated, claimant would have had good cause to quit her job if the proximate cause for her quitting had been the unilateral cut in pay. Branch v. Dep’t of Employment Sec., 142 Vt. 609, 610, 458 A.2d 1121, 1122 (1983) (per curiam) (affirming Board’s conclusion that employee who quit after employer gave her choice of reduced wages or leaving employment had good cause attributable to employer for quitting). But the evidence in this case revealed that claimant worked at her j ob for nearly two months after the pay reduction before quitting. If claimant’s frustrations concerning her job originated with the cut in pay, she still continued working for approximately eight weeks until another separate incident arose that led to her decision to leave. Although this is a close case, we conclude that, under the circumstances, the Board did not err in holding that the proximate cause of claimant’s decision to quit was the exchange of text messages regarding the employer’s insistence that she attend the Head Start training without pay. Cf. Rushlow v. Dep’t of Employment & Training, 144 Vt. 328, 331, 476 A.2d 139, 141 (1984) (upholding Board’s finding that employee quit because he thought employer was going to limit his hours rather than because he refused to drive unsafe truck).

¶ 7. Moreover, we conclude that the record contains credible evidence to support the Board’s ruling that it was unreasonable under the circumstances for claimant to refuse to meet with the employer about the unpaid mandatory training unless a third party was present. See Branch, 142 Vt. at 610, 458 A.2d at 1122 (“Our standard of review in unemployment compensation cases is clear: we are to affirm the findings of the Board as long as there is credible evidence to support them, even if there is substantial evidence to the contrary.”). The daycare’s employee handbook was, at best from claimant’s perspective, ambiguous as to whether employees were to be paid to attend mandatory meetings concerning professional development. The mandatory training was scheduled for March 26, but plaintiff quit two days earlier after refusing the employer’s offer to meet with her. Cf. Rushlow, 144 Vt. at 331, 476 A.2d at 141 (stating that quitting for anticipatory reasons is not good cause attributable to employer, and concluding that employee failed to demonstrate that meeting with employer would have been fruitless). Nothing in the record demonstrates that it would have been fruitless for claimant to meet with the employer alone or that the employer had created such an intimidating environment as to justify claimant’s insistence on the presence of a third party. In short, upon review of the record, we uphold the Board’s conclusion that claimant failed to demonstrate that she quit her job for good cause attributable to her employer. See Skudlarek v. Dep’t of Employment & Training, 160 Vt. 277, 280, 627 A.2d 340, 342 (1993) (noting that, in cases of voluntary separation, employee has burden of demonstrating that separation was for good cause attributable to employer).

Affirmed.