Allen-Pentkowski v. Dept. of Labor, 2011 VT 71 (mem.).
In what would at first blush appear to be a straightforward case, the SCOV hands down a third-time’s-the-charm reversal and Plaintiff wins. Plaintiff had issues with her newly imposed work schedule, so Defendant fired Plaintiff. She applied for unemployment benefits. The unemployment claims adjuster determined that Plaintiff’s work-schedule issues rose to the level of misconduct. An Administrative Law Judge reversed the claims adjuster’s determination, and then the Employment Security Board reversed the ALJ. The SCOV, continuing the pattern, reversed the Board.
Plaintiff had worked for Defendant for over five years before she was fired. She started part-time and then went full-time in late 2007, working Monday through Friday, 7:00 a.m. to 3:30 p.m. In the fall of 2009, demand for Plaintiff’s work slowed and her supervisor suggested that Plaintiff take on some of the company’s administrative duties, working three days a week from 8:00 a.m. to 5:00 p.m. Plaintiff agreed to take on the duties but expressed concerns about working after 4:00 p.m. For a little while she worked from 7:30 a.m. to 4:00 p.m. She said she could make the change in hours after her baby came, but until then . . . .
At this point, one should note that Plaintiff was several months into a high-risk pregnancy. Oh yeah, she was also a single mom with a fifteen-year-old daughter, who Plaintiff was, understandably, uncomfortable leaving home alone after school—hence the issues with the schedule.
The supervisor insisted that Plaintiff work until 5:00 p.m. So Plaintiff sent an email to the president of the company, with the subject line “Harassment.” The content and tone concerned the president, who met with Plaintiff. Long story short, discussions were had, angry words exchanged, and president ultimately ended up firing Plaintiff.
Plaintiff filed for unemployment benefits but the adjuster determined that the refusal to work the hours was misconduct. An ALJ reversed this decision, finding that refusal to work a unilaterally altered schedule was not necessarily insubordinate. Then the Board reversed the ALJ, finding that refusal to work a schedule was sufficient to constitute misconduct. Plaintiff appealed.
The SCOV’s standard of review in this kind of appeal is deferential. The SCOV will uphold pretty much any findings and conclusions from the Board that aren’t clearly erroneous and are supported with some credible evidence—even if there’s substantial evidence to the contrary.
The SCOV notes that it has held balky and argumentative conduct is not necessarily misconduct. Here, Plaintiff claimed she could not work the extra hour from 4:00 to 5:00 three days a week because she was in the middle of a high-risk pregnancy, and like any halfway responsible parent, was concerned about leaving her fifteen-year-old daughter unsupervised. Defendant claimed it didn’t know why Plaintiff wouldn’t work the extra hour. The SCOV clarifies that it’s the employer’s burden to prove disqualifying conduct, and reasons that the employer has failed to do so. The SCOV holds that Defendant has, at best, demonstrated that Plaintiff was “balky.” The SCOV reasons that unwillingness to work a new schedule might be grounds for dismissal, but it’s not misconduct. Accordingly, the SCOV ruled in Plaintiff’s favor and reversed the Board.
Granted, there was conflicting testimony about whether the employer had notice of Plaintiff’s reasons for refusing to fully comply with the new schedule. But from the detached-observer perspective, one might wonder what any employer is thinking when they fire a single mom in the middle of a high-risk pregnancy for refusing to work a unilaterally imposed new schedule. Those are the kind of facts that make plaintiffs’ lawyers smile in their sleep.