Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-171

                                       JANUARY TERM, 2017

John Tansey                                            }    APPEALED FROM:
                                                       }
                                                       }    Employment Security Board
   v.                                                  }
                                                       }
Department of Labor                                    }    DOCKET NO. 02-16-063-05
(Mount Snow Ltd., Employer)                            }


                          In the above-entitled cause, the Clerk will enter:

        Claimant appeals the Employment Security Board’s decision upholding the determination
of the administrative law judge (ALJ) that claimant was terminated for misconduct connected with
his work and therefore temporarily foreclosed from obtaining unemployment compensation
benefits. We affirm.

        The ALJ made the following findings, which were adopted by the Employment Security
Board, after conducting a hearing in which claimant and employer Mount Snow Ltd. participated.
Claimant worked for employer for two and one-half years as a bartender before being discharged
on January 13, 2016. He had received a written warning in August 2015 for making a guest feel
unwanted and was told at that time that any further behavior of this type could result in termination
of his employment. In early January 2016, employer became aware of a TripAdvisor review
indicating that the bartender on the night in question, who turned out to be claimant, was rude to
the reviewer and her friends when they wanted to get drinks late one evening. Based on this review
and the previous warning, employer discharged defendant from his bartending position.

        A few days later, employer hired claimant as a snowboarding instructor. Approximately
one week after beginning his instructor job, claimant informed the director of food and beverage
that he had contacted the TripAdvisor reviewer and told her that he had been fired because of her
review and that she needed to think twice before placing such a review again. Looking to get his
bartender job back, claimant informed the director of food and beverage that the reviewer had
removed the review after he had contacted her. Upon being informed of what had transpired, the
human services (HR) director fired claimant for contacting the TripAdvisor reviewer without
obtaining employer’s permission.

       Claimant reported to the Department of Labor on a fact-finding form that he had been fired
because of a complaint on TripAdvisor. He denied being rude. Based on this information, the
claims adjudicator determined that claimant was entitled to unemployment compensation benefits
because employer had failed to demonstrate sufficient grounds to constitute misconduct.
Employer appealed to the ALJ, who determined, following a hearing in which employer and
claimant participated, that claimant was temporarily foreclosed from receiving unemployment
compensation benefits because employer had demonstrated that claimant was fired for misconduct
connected to his work. Claimant appealed to the Employment Security Board, which upheld the
ALJ’s determination.

        On appeal, claimant’s principal argument is that denial of his claim resulted from false
representations made by the HR director. Claimant also asserts that he was given insufficient
notice of the hearing before the ALJ, that the ALJ did not allow him to present his case at the
hearing, and that the real reason he was fired was because he had filed a workers’ compensation
claim in 2013. We need not consider the latter assertion, which is made for the first time in this
appeal in a single conclusory sentence. Nor do we find any merit to claimant’s assertions regarding
lack of adequate notice or biased treatment by the ALJ. The record demonstrates that defendant
was provided timely notice of the hearings before the ALJ and the Board and that the ALJ provided
claimant with a full opportunity to present his case. The interruptions referred to by claimant were
aimed only at getting defendant to put questions in the form of a question and not present evidence
while examining employer’s witnesses.

        As noted, claimant’s principal argument is that the denial of his claim was based on false
representations made by the HR director. He states that the HR director was untruthful in asserting
that he had admitted the behavior described in the TripAdvisor review, that TripAdvisor prohibits
contacting reviewers, that he had had two prior warnings for being rude to guests, and that the
employer had not received similar complaints by guests of other employees.

        A problem with this argument is that neither the ALJ nor the Board relied on these alleged
misrepresentations in concluding that claimant had been fired for misconduct connected to his
work. An employee may be disqualified from receiving unemployment compensation benefits for
a specified period if, in relevant part, the employee “has been discharged by his or her last
employing unit for misconduct connected with his or her work.” 21 V.S.A. § 1344(a)(1)(A). “The
fact that misconduct may support a discharge does not necessarily mean that the same misconduct
disqualifies an employee from receiving unemployment benefits.” Cross v. Dep’t of Emp’t &
Training, 147 Vt. 634, 635 (1987). “This Court has defined misconduct sufficient to constitute
disqualification under § 1344 as substantial disregard of the employer’s interest, either willful or
culpably negligent.” Allen-Pentkowski v. Dep’t of Labor, 2011 VT 71, ¶ 6, 190 Vt. 556 (quotation
omitted). Culpable negligence connotes something more than mere negligence or errors in
judgment. Favreau v. Dep’t of Emp’t & Training, 151 Vt. 170, 172 (1989).

        The employer has the burden to establish misconduct by a preponderance of the evidence.
See Allen-Pentkowski, 2011 VT 71, ¶ 6; Romeo v. Dep’t of Emp’t & Training, 150 Vt. 591, 592
(1988). “Weight, credibility and persuasive effect are for the trier of fact.” Kasnowski v. Dep’t
of Emp’t Sec., 137 Vt. 380, 381 (1979). “This Court will not disturb the Board’s findings if there
is any credible evidence to support them even when substantial evidence to the contrary exists.”
Favreau, 151 Vt. at 173. Moreover, we “must uphold the Board’s decisions unless it can be
demonstrated that the findings and conclusions were erroneous.” Trombley v. Dep’t of Emp’t &
Training, 146 Vt. 332, 334 (1985).

        We emphasize that we are not a factfinding body. In his brief, claimant explains in detail
his position that the HR director was untruthful in much of his testimony and what the actual facts
are. We cannot consider these arguments. As long as there is some evidence to support the
findings of fact of the Board and the ALJ, we must accept those findings even if based on the
testimony of a witness that appellant asserts was lying. With respect to the findings on which the
administrative decision rests, we conclude they are supported by the evidence.


                                                 2
        Claimant does not argue here that his action in contacting the TripAdvisor reviewer was
an error in judgment or mere negligence. The Board determined that this conduct was sufficiently
inimical to employer’s interest to constitute misconduct temporarily disqualifying him from
obtaining unemployment compensation benefits. The employer had demonstrated its concern
about conduct toward guests when it warned claimant after the earlier rudeness incident. The
employer acted appropriately when it reacted to claimant’s contact with the TripAdviser reviewer
to complain about the review and its consequence for him. We find no basis to overturn the
Board’s determination that claimant’s conduct was in substantial disregard of employer’s interest.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice




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