Cindy Campney v. Department of Labor (HBH Holdings, LLC)

VERMONT SUPREME COURT Case No. 2021-038
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
OCTOBER TERM, 2021
Cindy Campney* v. Department of Labor
(HBH Holdings, LLC)
}
}
APPEALED FROM:
} Employment Security Board
} CASE NO. 08-20-323-01
In the above-entitled cause, the Clerk will enter:
Claimant appeals a decision of the Employment Security Board concluding that she left
her employment voluntarily without good cause attributable to her employer. We affirm.
Claimant worked for employer HBH LLC for nearly five years. Her last day of work was
May 14, 2020. Claimant applied for unemployment compensation, stating that she quit because
she was being sexually harassed at work and employer did not adequately respond to the
complaint. The claims adjudicator determined that claimant had voluntarily quit and that she had
good cause attributable to her employer because she was harassed by a coworker and employer
failed to correct the situation.
Employer appealed to an Administrative Law Judge (ALJ). Claimant was notified about
the hearing before the ALJ but did not attend. At the hearing, an owner and claimant’s
supervisor testified for employer. The owner testified that on several occasions during
claimant’s employment she had at times threatened to leave if employer did not discharge
various other employees. Owner explained that for a few months before leaving, claimant had
issues with a particular coworker, who was also her relative’s neighbor. In May 2020, there was
an incident in which claimant asserted that the coworker threw a putty knife at her. Employer
disputed this version of events, alleging that the knife was thrown at the ground. In any event, in
response to the incident, employer reprimanded the coworker and sent him home without pay.
Employer discovered that claimant was video recording the coworker outside of work and the
coworker reported that claimant called him names. On May 14, 2020, claimant informed her
supervisor that she would quit if the coworker was not dismissed. Her supervisor stated that if
claimant wished to leave, that was fine with him.
The ALJ reversed the adjudicator’s decision, finding that much of the difficulty between
claimant and her coworker arose due to claimant’s behavior, particularly using inappropriate
language toward him and video recording his actions outside of work. The ALJ found that
claimant had not demonstrated that her working conditions were intolerable or that employer

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failed to respond to her concerns in a reasonable manner, noting that employer had reprimanded
the coworker after the knife incident.
Claimant appealed to the Board. The Board held a hearing which the owner attended.
Claimant was not present. The Board adopted the findings of the ALJ and upheld the ALJ’s
decision that claimant left her employment voluntarily without good cause attributable to her
employer. Claimant appeals.
On appeal, claimant first argues that the Board erred in finding that she voluntarily quit.
She asserts that she did not walk off the job; rather, employer told her not to come back.
Claimant argues that her employer made false accusations surrounding the facts related to her
leaving and that she was dismissed because her employer was afraid that she would sue.
An employee is disqualified from unemployment benefits if the employee leaves
voluntarily without good cause attributable to the employer. 21 V.S.A. § 1344(a)(2)(A). “In
determining whether a separation from employment is a discharge or a voluntary quit, we look to
the intent of the parties at the time of the separation.” Kelley v. Dep’t of Lab. (Maple Leaf Farm
Ass’n, Inc.), 2014 VT 74, ¶ 10, 197 Vt. 155. Our review of the Board’s decision is deferential
and the Board’s findings will be upheld “unless they are clearly erroneous.” Id. ¶ 6. Here, the
owner testified that claimant indicated that she would leave if her coworker was not terminated,
then left the building and did not come back. Although claimant presents a different
understanding of the facts, the Board did not err in crediting employer’s version of events over
claimant’s. The facts support a finding that claimant’s intent was to quit her employment.
Claimant also contends that she had good cause to quit because her coworker was
sexually and verbally harassing her at work and employer did not adequately address the
situation. Where the sole issue is whether there is good cause attributable to the employer, this
Court gives great weight to the decision of the Board. Cook v. Dep’t of Emp. & Training, 143
Vt. 497, 501 (1983). The burden of proving good cause attributable to the employer is on the
employee. Skudlarek v. Dep’t of Emp. & Training, 160 Vt. 277, 280 (1993). Good cause to quit
is determined by considering “what a reasonable person would have done in the same
circumstances.” Isabelle v. Dep’t of Emp. & Training, 150 Vt. 458, 460 (1988) (citation
omitted). Before leaving, “an employee must make some effort to remedy alleged poor working
conditions or demonstrate that such effort would be unavailing.” Bombard v. Dep’t of Lab.
(Fisher Auto Parts, Inc., Emp.), 2010 VT 100, ¶ 10, 189 Vt. 528 (mem.).
Here, claimant has raised accusations in her filings to the Department and this Court
about the behavior of other employees and the lack of response from employer, but she did not
testify at the hearing before the ALJ and consequently the evidence of any harassment she
experienced and the degree to which claimant notified employer of her coworkers’ behavior was
limited. To the extent that claimant’s statements in her filings conflicted with employer’s
evidence, the Board did not abuse its discretion in crediting employer’s version of events over
claimant’s. The evidence supported the Board’s findings that claimant contributed to the poor
relationship with her coworker by calling him names and video recording him outside of work,
and that employer responded to claimant’s complaints about her coworker when those issues
were raised. These findings in turn support the Board’s conclusions that claimant did not have
good cause to quit on the basis that her work conditions were intolerable and her employer failed
to respond to her concerns in a reasonable manner.
Claimant’s final argument concerns the telephone hearing before the ALJ that was held
on November 19, 2020. The Board found that all interested parties were provided notice of the

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hearings before the ALJ and the Board. This finding is supported by the record, which includes
the hearing notices for the ALJ and Board hearings that they were sent to all parties including
claimant. The notice for the telephone hearing before the ALJ provided detail instructions on
how to participate. Claimant concedes that she received the ALJ hearing notice, but argues that
some other email communication she received implied that no additional hearing before the ALJ
would take place. She also asserts that she was not contacted for the ALJ hearing, but it is
unclear whether she followed the instructions in the hearing notice to ensure she would be called.
Because claimant did not raise this issue on appeal to the Board, the record on this issue is
limited, and we defer to the Board’s determination. Because we conclude that claimant received
notice of the hearing, and the record does not establish any facts that undermined that notice, we
conclude claimant’s due-process rights were satisfied. See Perry v. Dep’t of Emp. Training, 147
Vt. 621, 624 (1987) (holding that procedural due process requires notice and opportunity to be
heard before depriving claimant of unemployment benefits). To the extent that claimant was
unsure of the process or purpose of the hearing, it was her responsibility to follow up with the
Department. Claimant has failed to demonstrate that she followed the directions in the hearing
notice and that her lack of participation was caused by the Department. Therefore, there are no
grounds to reverse.
Affirmed.
BY THE COURT:
Beth Robinson, Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice