2012 VT 64


Mohamed v. Fletcher Allen Health
Care (2011-293)
 
2012 VT 064
 
[Filed 10-Aug-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 64

 

No. 2011-293

 

Abdullahi
  Mohamed


Supreme Court


 


 


 


On Appeal from


     v.


Employment Security Board


 


 


Fletcher Allen Heath Care


February Term, 2012


 


 


 


 


Valerie
  Rickert, Chair


 

Kirstin K. Schoonover, Vermont Legal Aid, Burlington, for
Plaintiff-Appellee.
 
Amy M. McLaughlin and Angela R. Clark of Dinse,
Knapp & McAndrew, P.C., Burlington, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Fletcher Allen Health Care (FAHC) appeals
a decision of the Vermont Employment Security Board finding claimant, Abdullahi Mohamed, eligible for unemployment compensation
benefits.  The Board found that claimant’s discharge for off-duty criminal
conduct did not constitute gross misconduct disqualifying him from unemployment
compensation benefits under 21 V.S.A. § 1344(a)(2)(B).  On appeal, FAHC
argues that the Legislature’s recent amendments to the Vermont Unemployment
Compensation Act require the Board to disqualify claimants from receiving
unemployment compensation benefits when an employer can no longer retain them
as a result of off-duty criminal conduct.  Finding no error, we affirm.
¶ 2.            
Claimant was employed in the environmental services department at the
FAHC hospital for approximately four years.  He was responsible for
cleaning certain work areas in the hospital.  His work responsibilities
put him in contact with patients and staff.  In September 2010, he pled
guilty to two counts of lewdness after being charged with groping a young
woman’s breasts and vaginal area over her clothing in violation of 13 V.S.A.
§ 2632(a)(8).  The conduct that gave rise to claimant’s
criminal charges did not take place on FAHC’s property, and he was off duty at
the time.  Claimant’s parole officer later informed FAHC of the criminal
convictions, and on October 6, 2010, FAHC terminated claimant’s employment
because his “criminal conviction render[ed] [him]
unsuitable for continued employment.”  Both parties agree that claimant
was discharged because of his criminal convictions, not for any conduct that
took place on FAHC premises or that involved his work at FAHC. 
¶ 3.            
After he was discharged, claimant filed for unemployment compensation
benefits.  The circumstances of his discharge implicated three different,
but related, statutory disqualification provisions.  Two of the provisions
disqualify a former employee from receiving unemployment compensation benefits
for a period of time, allowing the employee to obtain benefits after the
disqualification period.  The third relevant provision completely
disqualifies a former employee from receiving any benefits until after the
employee has returned to work and earned a certain amount of money.  In
essence, this type of provision prevents the employee from receiving any
benefits during the unemployment following the conduct for which the
disqualification is imposed.
¶ 4.            
 The first of the partial disqualification provisions applies if
the employee is discharged for “misconduct connected with his or her
work.”  21 V.S.A. § 1344(a)(1)(A).  The
second applies if the employee was separated from employment “because of the
consequences which flow from his or her conviction of a felony or
misdemeanor.”  Id. § 1344(a)(1)(B). 
The complete disqualification occurs if the employee is discharged for “gross
misconduct connected with his or her work.”  Id. § 1344(a)(2)(B).
¶ 5.            
The Department of Labor Claims Adjudicator determined that claimant was
eligible for benefits, and he began receiving benefits the week ending October
30, 2010.  FAHC appealed to an Administrative Law Judge (ALJ) and
argued that claimant should be disqualified from receiving benefits because he
was fired for gross misconduct.  On December 8, 2010, the ALJ issued a
decision modifying the Department’s determination and finding that
“[claimant’s] actions, although outside of the course of his employment, directly
impacted . . . the employer’s ability to retain his services.” 
Accordingly, the ALJ determined that a disqualification period should be
imposed on claimant under the simple misconduct provision of the Act, 21 V.S.A.
§ 1344(a)(1)(A).  FAHC was not satisfied
with this result and appealed to the Board, arguing that claimant should be
completely disqualified from receiving benefits under the gross misconduct
provision of the Act, 21 V.S.A. § 1344(a)(2)(B). 
¶ 6.            
The Board found that the ALJ had erred by failing to provide proper
notice prior to the hearing of all issues.  The case was remanded to the
ALJ with instructions to hold another hearing, with proper notice, addressing
not only the simple misconduct provision, but the separation and gross misconduct
provisions as well.  After a second hearing, the ALJ concluded that
there was “no direct connection” between claimant’s convictions and his job and
therefore the gross misconduct provision was inapplicable.  The ALJ
did find, however, that claimant’s discharge was a “foreseeable consequence” of
his criminal convictions and again applied the simple misconduct provision of
the Act.[1] 
Again, FAHC appealed to the Board, arguing that, in light of recent amendments
to the Act, the ALJ had not properly interpreted the definition of gross
misconduct.
¶ 7.            
The Board affirmed the ALJ decision, stating that it could not “consider
an off duty criminal act, not committed on the employer’s premises, nor in any
other way implicating the employer, as being directly related to the claimant’s
work performance.”  FAHC filed a timely appeal with this Court, and
it continues to argue that claimant’s off-duty criminal conduct disqualifies
him from receiving unemployment compensation benefits pursuant to the gross
misconduct provision of the Act. 
¶ 8.            
As an initial matter, claimant has moved to dismiss this appeal on
grounds that the case is moot.  “A case becomes moot when the parties
cease to maintain a legally cognizable interest in the outcome of the
case.”  Holton v. Dep’t of Emp’t &
Training (Town of Vernon), 2005 VT 42, ¶ 14, 178 Vt. 147, 878 A.2d 1051.  FAHC’s monetary interest in this case
has ceased because, as a noncontributing employer, it cannot recover funds
denied on appeal. Accordingly, this case is moot under the general rule as we
held in Holton.  Id. ¶ 15. 
But we have recognized an exception to the rule for cases that are “ ‘capable of repetition, yet evad[e]
review.’ ”  In re S. H., 141
Vt. 278, 281, 448 A.2d 148, 149 (1982) (quoting Roe v. Wade, 410 U.S.
113, 125 (1973)).  We have adopted a two-pronged test for this
exception:  “ ‘(1) the challenged action
[must be] in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there [must be] a reasonable expectation that
the same complaining party [will] be subjected to the same action again.’ ”  State v. Tallman, 148 Vt. 465, 468-69,
537 A.2d 422, 424 (1987) (quoting Weinstein v. Bradford, 423 U.S. 147,
149 (1975)).  
¶ 9.            
With some exceptions, unemployment compensation benefits generally do
not exceed twenty-six weeks of payments.  21 V.S.A. §
1340.  The nature of the administrative process can extend the
litigation of unemployment compensation disputes beyond the final distribution
of benefits.  In this case, FAHC was not able to appeal to this Court
until several months after claimant had received his last benefits
payment.  Accordingly, the Board’s action that FAHC challenges on appeal
ceased before it could properly be challenged.  In addition, it is
reasonable to expect FAHC will continue to discharge employees convicted of a
crime, and, as a result, it will continue to be subject to unemployment
compensation payments arising from such discharges.
¶ 10.         In a
similar circumstance in Holton we held that the mootness
exception did not apply because the “Board decision [on appeal] . . . is based on a specific set of facts that
are not reasonably likely to recur.”  Holton,
2005 VT 42, ¶ 17.  Here, we are dealing with a question of law on
which only the most basic factual elements are relevant.  For these
reasons, we find that both prongs of the mootness
exception test are met, and we proceed to the merits.  We caution,
however, as we did in State v. Schaefer, 157 Vt. 339, 345, 599 A.2d 337,
341 (1991), that general questions of law as are present here meet the
exception, but once such questions are answered, the issues in future cases
become more fact specific and are less likely to fit within the
exception.   
¶ 11.         In
this light, our review on appeal is focused on a question of law.  “An
administrative agency’s conclusions of law will be upheld on appeal if they are
fairly and reasonably supported by findings of fact, and absent a clear showing
to the contrary, any decisions it makes within its expertise are presumed
correct, valid and reasonable.”  Caledonian Record Publ’g Co., Inc. v. Dep’t of Emp’t
& Training, 151 Vt. 256, 260, 559 A.2d 678, 681 (1989) (citation
omitted).  FAHC has not challenged the factual findings on appeal[2] and, even if it had, this “Court will not
disturb the findings of the Employment Security Board unless they are clearly
unsupported by the evidence.”  Johnson v. Dep’t of Emp’t Sec., 138 Vt. 554, 555, 420 A.2d 106, 107 (1980).
 “Where misconduct is asserted as a basis for disqualification for
unemployment compensation benefits, the burden of proof is on the
employer.”  Longe v. Dep’t of Emp’t Sec.,
135 Vt. 460, 461, 380 A.2d 76, 77-78 (1977).  
¶ 12.         As
FAHC emphasizes, the Legislature has recently amended the gross misconduct
disqualification in the Act.  Prior to amendment, the statute required
disqualification if an individual was “discharged by his or her last employing
unit for gross misconduct connected with his or her work.”  21 V.S.A. §
1344(a)(2)(B) (2009).  We construed this language
to mean that an employee’s conduct must “be in substantial disregard of the
employer’s interest, his disregard being either willful or culpably
negligent.”  Favreau v. Dep’t of Emp’t & Training,
151 Vt. 170, 172, 557 A.2d 909, 910 (1989).  The new amendment does
not modify the existing statutory language, but it adds the following
definition of gross misconduct:
For purposes of this section, “gross
misconduct” means conduct directly related to the employee’s work performance
that demonstrates a flagrant, wanton, and intentional disregard of the
employer’s business interest, and that has direct and significant impact upon
the employer’s business interest, including but not limited to theft, fraud,
intoxication, intentional serious damage to property, intentional infliction of
personal injury, any conduct that constitutes a felony, or repeated incidents
after written warning of either unprovoked insubordination or public use of
profanity.
2009, No. 124 (Adj. Sess.), § 7
(codified at 21 V.S.A. § 1344(a)(2)(B)).  We note
that both the simple misconduct and gross misconduct provisions of the law
require that an employee’s conduct be “connected with [the employee’s]
work.”  21 V.S.A. § 1344(a)(1)(A),
(b)(2)(B).  To that general requirement, the Legislature added that
misconduct is gross only if it is “directly related to the employee’s work
performance.”  Id. § 1344(b)(2)(B). 
We conclude that the decisions of the Board and the ALJ—that claimant’s
off-duty, off-premises, and unrelated conduct was not connected with his work
at FAHC and was not directly related to his work performance—were not
unreasonable.  Accordingly, we affirm the Board’s determination that the
gross misconduct provision of the Act does not apply in this case. 
¶ 13.         Our
decision today accords with at least two previous cases in which we have ruled
that off-duty criminal conduct is not gross misconduct under the Act.  The
most important case is Chamberlin v. Department of Employment Security,
in which we found that an employee who could no longer perform his job because
he was incarcerated was not subject to the discharge-for-gross-misconduct
disqualification.  136 Vt. 571, 572, 396 A.2d 140, 140
(1978) (per curiam).  The plaintiff in
that case was charged with breaking and entering, conduct which was not
associated with his employment as a laborer for a tree service.  Id. 
He was later sentenced to three months’ imprisonment,
and his “employment was terminated by reason of his incarceration.”  Id.
 We held that the gross misconduct disqualification provision did not
apply because the Department’s action was based on conduct “not connected with
his work.”  Id. at 573, 396 A.2d at 141; see also Przekaza v. Dep’t of Emp’t
Sec., 136 Vt. 355, 357, 392 A.2d 421, 422 (1978) (same).  We note that
the language under which Chamberlin was decided, authorizing
disqualification for misconduct “connected with his work,” is essentially the
language of the current statute.[3]
¶ 14.         Chamberlin
is particularly relevant in another respect.  Prior to 1974, the statute
had a long-standing disqualification provision applicable to claimants who were
discharged “for the reason of having been found guilty of a felony committed
after the time of his last previous employment whether connected with the
employment or not.”  1949, No. 132, § 1.  We
specifically noted in Chamberlin that a 1974 amendment to the statute
eliminated this disqualification provision and stated that it would be
“especially inappropriate” in light of the amendment to remove this
disqualification to hold that an employee could be disqualified under the gross
misconduct provision for “a felony committed after the time of previous
employment, whether connected with the employment or not.”  Chamberlin,
136 Vt. at 573, 396 A.2d at 141; see 1973, No. 231 (Adj. Sess.), § 1 (amending
21 V.S.A. § 1344 to eliminate the felony conviction disqualification). 
Thus, we declined to disqualify a claimant where the Legislature had expressed
its contrary intent.  Id.  FAHC is asking us to do here
exactly what we refused to do in Chamberlin.
¶ 15.         Since
Chamberlin and Przekaza were decided,
the Legislature has added the disqualification provision for employees who are
separated from employment because they cannot perform their job as a result of
consequences of a criminal conviction.  21 V.S.A. § 1344(a)(1)(B) (added by 1981, No. 86, § 13).  This amendment
again created a disqualification provision for some employees convicted of
crimes, but a very different one from that in effect prior to 1974.  In a
limited respect—that is, where the consequences of a criminal conviction
interfere with the ability of an employee to perform his or her job—this new
disqualification modified the holding of Chamberlin.  In all other
respects, the holding of Chamberlin has remained intact, and there has
been no other legislative action to overrule it, at least until the 2010
amendment on which FAHC relies.  Unless the 2010 amendment had that
effect, Chamberlin governs this case. 
¶ 16.         FAHC
argues that the 2010 amendments to the Act were enacted with a legislative
intent to disqualify more claimants, and that since the Legislature amended the
full disqualification provision, it must have intended to expand its scope to
overrule Chamberlin.  To support this position, FAHC points to the
title of the Act—“An Act Relating to Restoring Solvency to the Unemployment
Trust Fund”—as well as several specific amendments that demonstrate the
Legislature’s intent to rein in the cost of the unemployment compensation
program.  See 2009, No. 124 (Adj. Sess.), § 5 (adding 21 V.S.A. §
1340(b)); id. § 7 (amending 21 V.S.A. § 1344(a)(1)).  For example, the Legislature increased the
partial disqualification period from twelve to fifteen weeks, saving the Trust
Fund three weeks worth of benefits for claimants partially disqualified.  Id. § 7.  FAHC argues that this and other
similar provisions necessarily imply that the amended definition of gross
misconduct was also meant to disqualify more employees from unemployment
compensation benefits and further reduce the cost of the program.
¶ 17.         While
FAHC may be correct regarding the overall purpose of the amendments, this
purpose is not necessarily carried into every amendment, and specifically into
the amendment to the full disqualification provision for gross
misconduct.  Thus, our normal methods of statutory construction are
applicable here. “In determining legislative intent, we begin with the plain
meaning of the statutory language.”  State v. LeBlanc, 171 Vt. 88, 91, 759 A.2d 991, 993
(2000).  “This Court must presume that all language in a statute
was drafted advisedly, and that the plain ordinary meaning of the language used
was intended.”  Comm. to Save the Bishop’s House, Inc. v. Med. Ctr.
Hosp. of Vt., Inc., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (citations
omitted) (citing State v. Racine, 133 Vt. 111, 114, 329 A.2d 651, 653-54
(1974)).
¶ 18.         The
plain language of the new full disqualification provision still requires that
misconduct be connected with the employee’s work, and nothing in its language
suggests that the Legislature intended to overrule Chamberlin in
circumstances not covered by the consequences-of-conviction partial
disqualification.  The old provision imposed disqualification only if the
gross misconduct was “connected with [an employee’s] work.”  This
language, which was the basis for Chamberlin, was not amended or
repealed.  21 V.S.A. § 1344(a)(2)(B).  The
amendment added language that requires the gross misconduct to be “directly
related to the employee’s work performance.”  Id.  The
words “connected” and “related” are nearly synonymous, but under the new
provision, “related” is modified by “directly,” which functions to narrow the
scope of work-related conduct that is relevant under the statute.  Id. 
Additionally, under the new provision, conduct must also be related to “work
performance.”  Accordingly, the provision does not apply when conduct is
directly related to work, but not related to work performance.  Finally,
the conduct must have a “direct and significant impact upon the
employer’s business interest.”  Id.  If anything, the 2010
amendment expanded the scope of Chamberlin.
¶ 19.         In
response to this conclusion drawn from the plain language, FAHC argues that the
Board’s decision is internally inconsistent since both the simple and gross
misconduct provisions of the Act require the employee’s conduct to be connected
to work and the Board applied the simple misconduct disqualification to
claimant, but not the gross misconduct disqualification.  The short answer
to this argument is that the ALJ drew this distinction, and claimant never
appealed the disqualification period decision to the Board.  Claimant
served his disqualification period, and he has not contested the
disqualification in this Court.  For this reason, we do not address the question
of whether claimant should have been required to serve a period of
disqualification based on simple misconduct.  If the ALJ and the Board
made an error on this question, it is not an error that FAHC can take advantage
of to challenge the part of the Board decision adverse to it.
¶ 20.         FAHC
also argues that claimant should be disqualified from receiving benefits
because, in light of his criminal convictions and the place and nature of his
work, FAHC had no choice but to discharge him.  We do not dispute FAHC’s
business decision, but the question of whether claimant should have been
disqualified from unemployment compensation benefits is different from the
question of whether FAHC has adopted an appropriate employment policy. 
See Johnson, 138 Vt. at 556, 420 A.2d at 107 (“Misconduct that is
sufficient for discharge is not necessarily sufficient to require a
disqualification from benefits under the Unemployment Compensation
Act.”).  For similar reasons, we do not find determinative FAHC’s argument
that the Legislature intended to prohibit the award of unemployment
compensation benefits to a claimant who is unemployed because of his or her own
choice or fault.  See Lane v. Dep’t of Emp’t
Sec., 134 Vt. 9, 10-11, 347 A.2d 454, 455 (1975) (“The complex pattern of
the whole statute is one of compensation for involuntary unemployment, with
disqualification and penalties where the unemployment is due to choice or
fault.”).  In fact, as this decision explains, the statutes create a
complex relationship between employee choice or fault, however they may be
determined, and the eligibility for benefits.  In these circumstances,
that relationship does not create the result FAHC seeks. 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 21.         REIBER,
C.J., dissenting.   I respectfully
dissent. In dicta, the majority acknowledges the ALJ’s use of a “foreseeable”
standard under 21 V.S.A. § 1344(a)(1)(B) to
determine the “consequences” of an employee’s conduct under the
simple-misconduct provision. Foreseeability is not a
word used in the statute, and, in employing the language, neither the ALJ nor
the majority make clear whether it is an objective or subjective
standard.  This limited interpretation adds confusion and will leave
employers struggling with ambiguity under this Act when trying to interpret the
majority’s decision under the remaining portion of the statute presented by
this appeal, § 1344(a)(2)(B).
¶ 22.         The
majority also follows the Board and ALJ’s lead under the statute and creates
what in effect is a presumption against a finding of gross misconduct under
§ 1344, a standard that is not there. Without sufficient analysis, the
majority affirms a Board conclusion that claimant’s off-duty, off-premises
criminal conduct is not directly related to the employee’s work performance and
not connected to his work.
¶ 23.         The
result appears to create a bright-line rule that says any off-duty,
off-premises act is not likely gross misconduct.   I do not read the
gross-misconduct section so broadly. 
¶ 24.         The
Board concluded that claimant’s past work performance here was “generally
acceptable” but it went no further with findings or analysis regarding the
impact of claimant’s off-premises criminal conduct on his job performance in
furtherance of his employer’s ability to maintain a proper therapeutic
relationship with its patients, including their safety and security.  The
Board merely noted that the conduct was off-site and off-duty, and that there
were no reports of similar conduct by claimant with patients or staff.
 Such a conclusion falls short of addressing employer’s concerns
acknowledged in the law, and effectively rewrites the statute. 
¶ 25.         In
the proceedings before the Board and the ALJ, employer introduced evidence on
the impact of claimant’s particular misconduct on his work performance.
 Employer noted the special nature of its relationship with patients; it
referenced claimant’s unfettered access to a range of patients, some in
compromised states; it introduced evidence of its requirement before hiring
that all employees provide ongoing consent to background checks; and it
emphasized the nature of the crimes committed by claimant on a stranger. 
But, in response, the Board failed to address the “directly related to the
employee’s work performance” component of the statute, merely noting that the
criminal act occurred off-site and off-duty.  In affirming the Board’s
conclusion of no gross misconduct on these facts the majority goes too far in
applying the principle of deference to Board decisions. 
¶ 26.         Furthermore,
the cases cited by the majority, Przekaza
v. Department of Employment Security, 136 Vt. 355, 392 A.2d 421 (1978), and
Chamberlin v. Department of Employment Security, 136 Vt. 571, 396 A.2d
140 (1978), are inapposite insofar as they are not gross-misconduct cases and
do little to inform consideration of the work-performance relationship question
raised by employer here: when is an employee’s off-site, off-duty conduct
“directly related to the employee’s work performance”? 
¶ 27.         For
this reason, I would reverse and remand for further findings and analysis of
the issue raised by FAHC’s appeal, the question of the work-performance
relationship, and for this reason dissent.
 

¶        
   



 


 


 


Chief Justice

 
 









[1] 
As discussed more fully infra, ¶ 19, the ALJ’s decision regarding
the simple misconduct provision is not on appeal, and we express no judgment on
whether it was correct.  Contrary to the dissent’s implication, post,
¶ 1, our opinion should in no way be interpreted as endorsing the ALJ’s
reading of the simple misconduct provision.


[2] 
The dissent’s argument that the ALJ’s and Board’s decisions required further
factual findings was not raised by FAHC, and we see no need for the case to be
remanded for further findings.
 


[3] 
The only difference is that the current statute is gender inclusive.
 



