Normand Frechette v. Department of Labor (Green Mountain Transit Authority)

VERMONT SUPREME COURT Case No. 23-AP-327
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
JUNE TERM, 2024
Normand Frechette* v. Department of Labor
(Green Mountain Transit Authority)
}
}
APPEALED FROM:
} Employment Security Board
} CASE NO. 05-23-064-01
In the above-entitled cause, the Clerk will enter:
Claimant appeals from the Employment Security Board’s denial of his application for
unemployment compensation benefits. We affirm.
Claimant worked for employer in various capacities for over twenty years. His final
position was as a bus driver. In late December 2022, at his request, claimant moved from a full-
time to a part-time position. Claimant left his employment on February 1, 2023, and sought
unemployment benefits. A claims adjudicator denied his request, finding that claimant left his
employment voluntarily without good cause attributable to his employer. Claimant appealed to
an administrative law judge (ALJ), who reached the same conclusion.
The ALJ made the following findings after a hearing. Claimant allegedly told employer
numerous times that he was bothered by marijuana smoke coming from the bus platform and the
smell of marijuana emanating from passengers. His supervisor said that employer had no policy
that prevented passengers from consuming before boarding the bus or smelling of marijuana.
The supervisor suggested that claimant open the windows to air out the bus.
Claimant alleged that he had been struggling with the issue for several years. He did not
produce any documentation from his medical provider, however, that substantiated a connection
between marijuana and his reported symptoms, which included dizziness, confusion, and
impaired driving.
Claimant primarily resided in Island Pond, Vermont, but he was working in Burlington.
Up to the date of his separation from employment, he was either sleeping in his car or staying
with acquaintances to avoid exorbitant hotel fees.
Based on these findings, the ALJ disqualified claimant from receiving benefits. First, the
ALJ concluded that claimant failed to produce any medical documentation substantiating a
certified health condition that might have precluded the discharge of his duties for employer.
Thus, there was no basis to find a health separation. See 21 V.S.A. § 1344(a)(3) (providing for

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shorter disqualification period “if the Commissioner finds that the individual has left the employ
of the individual’s last employing unit without good cause attributable to the employing unit
because of a health condition, as certified by a health care provider, as defined in 18 V.S.A.
§ 9432(9), that precludes the discharge of duties inherent in such employment”). The ALJ
determined that claimant voluntarily separated from his employment and failed to prove that he
had a sufficient reason to quit attributable to employer.
In reaching his conclusion, the ALJ deemed claimant’s testimony “questionable at best.”
He noted that claimant reported struggling with marijuana odor for several years while working
full-time but employer had few records documenting any complaints during that timeframe. The
ALJ found this to be a significant period of time in which to be dealing with an issue that
claimant asserted led him to resign. The ALJ credited employer’s position that there was little
decisive action it could take with respect to the problem. He found it very unlikely that employer
could successfully enforce a rule that prohibited passengers from smelling like marijuana. The
ALJ further found that claimant was living precariously in Burlington throughout his final days
of employment and had reduced his hours to part-time. The ALJ believed these factors played a
significant role in claimant’s decision to resign. While claimant had valid personal and
subjective reasons for leaving his employment, those reasons were not attributable to his
employer or its business practices. The ALJ thus concluded that claimant was disqualified from
receiving benefits.
Claimant appealed to the Board, which adopted the ALJ’s findings and conclusions. The
Board added that claimant did not introduce evidence of any diagnosis or opinion of a healthcare
provider that claimant’s work environment was detrimental to a diagnosed condition or his
health generally. While claimant testified that he might have some variety of allergy to cannabis
that left him feeling intoxicated by the odor coming from passengers, he did not provide any
medical documentation to support this assertion. Claimant did not allege that passengers were
smoking on the bus, moreover, only that the odor coming from them made him sick. The Board
agreed with the ALJ that employer could not effectively prevent members of the public from
smelling like cannabis or fully isolate claimant from odors in the cabin of the bus. Like the ALJ,
the Board concluded that while claimant might have had sound personal reasons to resign from
his position, those reasons did not constitute good cause attributable to his employer. Claimant
appealed.
Claimant argues that the Board failed to liberally construe the law in his favor. He
asserts that employer did not try to solve the problem he brought to its attention. He reasons that
he was exposed to cannabis in his employment and therefore it is his employer’s fault that he had
to leave his employment to avoid this exposure. Claimant asserts that he did not need to provide
any medical support to show that he was affected in a negative way by the cannabis. He
contends that employer’s suggestion that he open the windows did not meet its obligation to
rectify the problem within its capacity to do so. He suggests that employer should have provided
him with respiratory or other supplies.
At issue is whether, under the facts found by the Board, claimant left his “last employing
unit voluntarily without good cause attributable to the employing unit.” 21 V.S.A.
§ 1344(a)(2)(A). We analyze this question “under the specific facts and circumstances” of
claimant’s case “to determine if [claimant’s] decision was reasonable.” Lynch v. Dep’t of Emp.
& Training, 2005 VT 114, ¶ 4, 179 Vt. 542 (citations omitted). Claimant “has the burden to
prove good cause for quitting,” id., which is assessed under a “reasonable person” standard,
Isabelle v. Dep’t of Emp. & Training, 150 Vt. 458, 460 (1982). On review, we “will uphold the
Board’s factual findings unless clearly erroneous, and its conclusions of law if fairly and

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reasonably supported by those findings of fact.” Bouchard v. Dep’t of Emp. & Training, 174 Vt.
588, 589 (2002) (mem.) (quotation omitted). It is for the Board, rather than this Court, to assess
the weight and credibility of the evidence. Ellis v. Dep’t of Emp. Sec., 133 Vt. 533, 536 (1975).
“[W]hether a resignation is for good cause attributable to the employer is a matter within the
special expertise of the . . . Board, and its decision is entitled to great weight on appeal.” Allen v.
Dep’t of Emp. Sec., 141 Vt. 132, 134 (1982).
We find no error here. The Board’s findings are supported by the record and the findings
support the Board’s conclusions. In reaching its decision, the Board did not err in its
interpretation or application of the law. It did not unfairly deny claimant a remedy. The Board
found that claimant failed to establish that his health issues were caused by his working
conditions. To establish a health separation, the law requires certification of a health condition
by a health care provider. See 21 V.S.A. § 1344(a)(3). The Board further determined that
employer had no ability to ensure that passengers on the bus did not smell like marijuana. While
claimant argues that employer should have taken additional steps, there is no evidence to show
that claimant took the step proposed by employer of opening the windows to air out the bus.
Essentially, claimant wars with the Board’s assessment of the weight of the evidence and this
Court does not reweigh the evidence on appeal. The Board’s conclusion that claimant failed to
show good cause for resigning attributable to his employer is supported by the record.
Affirmed.
BY THE COURT:
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
Nancy J. Waples, Associate Justice