2010-531, Appeal of Ellen St. Louis

Nixon, Raiche, Vogelman, Barry, Slawsky & Simoneau, P.A.

(New Hampshire Department of Employment Security)

No. 2010-531

Department of Employment Security

received good performance reviews. assembly positions, which, at times, required soldering work. She regularly Insight Technology in 2004. Throughout her employment she held various The record supports the following facts. The petitioner began working for

(board) denying her claim for unemployment benefits. We affirm. New Hampshire Department of Employment Security (DES) Appellate Board HICKS, J. The petitioner, Ellen St. Louis, appeals the decision of the

Employment Security. attorney general, on the brief and orally), for the New Hampshire Department of THE SUPREME COURT OF NEW HAMPSHIRE Michael A. Delaney, attorney general (Karen A. Schlitzer, assistant

Simoneau orally), for the petitioner. Manchester (Leslie C. Nixon and Kirk C. Simoneau on the brief, and Mr.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as representative from Insight Technology testified. The tribunal concluded that p. 2 which held a hearing at which both the petitioner and a human resources connection with her work. She appealed to the DES Appeal Tribunal (tribunal), because the certifying officer found that she was terminated for misconduct in The petitioner applied for, but was denied, unemployment benefits

Instructions.” relied upon to produce quality product or perform according to required Work being retrained on soldering. The notice concluded that she was “not able to be stated that she was not retaining the necessary information when she was deviate from proper work procedures and produce poorly soldered work. It also that her conduct was not in line with company policy because she continued to She was terminated on June 24, 2009. The termination notice stated

instructions was producing poor quality work. had performed “flawlessly” in the past; however, her failure to follow soldering poorly. The notice further stated that she was properly trained and that her conduct was not in line with company policy because she was On June 10, 2009, the petitioner received another disciplinary notice

opinions regarding her inability to do soldering work. medical records or doctor’s instructions regarding her breathing problems or indicates, however, that she never provided Insight Technology with any that she informed her supervisor that she could not solder. The record caused her to shake, cough, and have difficulty breathing. She also claims

longer perform soldering work because the fumes caused headaches, and The petitioner claims that when she returned to work she could no

2009, the petitioner’s doctor released her to return to work with no restrictions. obstructive pulmonary disease, sleep apnea, and depression. On May 26, diagnosed with emphysema, chronic obstructive asthma, hypertension, chronic 2 The petitioner took medical leave beginning on March 13, 2009. She was

she take medical leave.

that she was depressed. The human resources representative recommended human resources representative that she was having difficulties breathing and regarding her faulty soldering work. Subsequently, the petitioner informed a be asleep at work and was argumentative when her trainer instructed her that her conduct was not in line with company policy because she appeared to On March 10, 2009, the petitioner received a disciplinary notice stating

began working. standards of conduct. The petitioner was given a copy of this policy when she performance and violations of company rules, safety measures, or accepted Insight Technology has a policy to take disciplinary action for poor p. 3 On appeal, the petitioner argues that Appeal of Lakeview

which was denied. This appeal followed. petitioner’s performance. The petitioner filed a motion for reconsideration, restrictions, which “the employer was entitled to rely on” when judging the that the petitioner was medically released to return to work without board sustained the tribunal’s decision, concluding that the record showed namely, poor performance, does not meet the standard for misconduct. The tribunal made an error of law because the reason given for her termination, The petitioner then appealed to the board arguing, in part, that the

negligence when she did not follow procedure.” Rather, the tribunal found that the petitioner “had repeated instances of

an inability to perform the work. The Chairman therefore finds the claimant’s discharge was not for procedure, and had performed such work flawlessly in the past. needed to follow proper procedure. The claimant was aware of the

The court shall reverse or modify the decision of the appeal appeal tribunal as to the weight of evidence on questions of fact. The court shall not substitute its judgments for that of the

The Chairman considered the claimant was aware she

Judicial review of DES decisions is governed by RSA 282-A:67 (2010):

work is not supported by the evidence. factual finding that she was not terminated because she was unable to do the seek accommodations. In her reply brief, she also asserts that the tribunal’s placed a burden upon her to inform her employer of her medical condition and entitled to benefits. The petitioner also argues that the board improperly employees, such as herself, terminated for conduct outside of their control are condition as impacting her ability to follow work instructions. NeuroRehabilitation Center, 150 N.H. 205 (2003), supports her contention that

Neither the claimant nor her doctor referenced her medical

inability to do the work. Following rehearing, the tribunal found: determine whether her poor performance was the result of negligence or an The petitioner was granted a limited reopening so that the tribunal could

work, which, she argued, is not misconduct under the law. among other things, that she was terminated because she was unable to do the past. The petitioner requested to have her case reopened. She asserted, procedure, which she knew, had been trained on, and had performed in the she was terminated for misconduct, finding that she chose not to follow proper not the decision of the tribunal, stating in her reply brief that “[i]t is this p. 4 The petitioner first asks us to review only the decision of the board, and

(e) Affected by other error of law.

or conclusions of the board. See We do not, however, have the statutory authority to review such rulings

the whole record; or

standard and her eligibility for benefits would be clear.

(d) Clearly erroneous in view of the substantial evidence on

had requested an appropriate accommodation, then the legal underlying medical condition that impacted her performance, and If the Claimant had properly notified the Employer that she had an

(c) Made upon unlawful procedures;

“misconduct” for purposes of ineligibility.

(b) In excess of statutory authority;

the work constitutes “careless or negligent acts” constituting specific guidance on whether or not the mere inability to perform

findings, we must restrict our review to the tribunal’s decision. Id. board here sustained the tribunal’s decision without clarifying or limiting its tribunal. See Appeal of First Student, 153 N.H. 682, 684 (2006). Because the determination, we will confine our review to the findings and rulings of the sustains the tribunal and does not clarify or limit the tribunal’s record or appeal and the relative positions of the parties thereto. Id (a) In violation of constitutional or statutory provisions;. When the board board are significant only insofar as they set forth and clarify the issues on (predecessor of the appellate board)). The findings and conclusions of the (discussing our ability to review conclusions of the appellate division the New Hampshire Supreme Court has not yet provided any Appeal of Kelly, 129 N.H. 462, 466 (1987)

petitioner argues that the board erred when it stated that decision from which [she] appeals, and asks this Court to reverse.” The

inferences, or conclusions are: appellant had been prejudiced because the administrative findings, determined by the court, only if the substantial rights of the

tribunal, or remand the case for further proceedings, as tribunal regarding the weight evidence should be afforded. See p. 5 solder. Nevertheless, we do not substitute our judgment for that of the the company knew she had breathing problems that made her unable to instruction, or produce quality work. In addition, the petitioner testified that petitioner appeared “unable” to retain information, perform according to work tribunal’s factual finding. The petitioner’s termination notice states that the 5

We note that there is some evidence in the record contrary to the

their own.” Id system is in place to aid “those who become unemployed through no fault of petitioner was terminated for misconduct. Our unemployment compensation We finally address whether the tribunal erred by deciding that the

constituted misconduct. See Appeal of Lakeview, 150 N.H. at 208. 659. We use a two-prong test to determine whether an employee’s acts misconduct is ineligible to receive benefits. Appeal of Motuzas, 158 N.H. at

. at 208. As a result, an employee terminated for work

disturb its factual finding. See Appeal of Lakeview, 150 N.H. at 210. condition made her unable to solder. petitioner was not terminated for an inability to do the work, we will not tribunal hearing that she never informed the company that her medical have found, based upon a preponderance of competent evidence, that the performed correctly in the past. In addition, the petitioner stated in the Motuzas We give great weight to the tribunal’s factual findings. See, 158 N.H. 655, 658-59 (2009). Because the tribunal reasonably could notice stated that she was properly trained on the work instructions and had Appeal of experience[d], qualified employee.” The petitioner’s June 10, 2009 disciplinary “[j]ob performance [was] at the fully-competent level expected of an factual finding. The petitioner’s March 2009 performance review noted that her There is competent evidence in the record to support the tribunal’s

have been made. Appeal of Lakeview, 150 N.H. at 210. evidence in the record, upon which the tribunal's decision reasonably could findings of fact will not be disturbed if they are supported by competent H. Sweepstakes Commission, 130 N.H. 659, 665 (1988). The tribunal's

her uncontradicted testimony. that this finding is contrary to the reasons given by Insight Technology and to that her medical condition made her unable to follow procedure. She argues procedure, performed properly in the past, and never claimed to her employer was not for an inability to perform the work” because she knew proper petitioner urges us to reject the tribunal’s factual finding that her “discharge was not terminated because she was unable to perform the required work. The We next address whether the tribunal erred in finding that the petitioner p. 6 Id

business interests of the employer.

a company rule reasonably designed to protect the legitimate sufficient for a finding of misconduct if it is a deliberate violation of

carelessness or negligence, a single instance of misconduct may be

Under the second prong, if there are no recurring acts of

terminated for misconduct, we find no error in the tribunal’s decision. See Because the record supports the determination that the petitioner was

substantial disregard. manifest wrongful intent or evil design or to show intentional and

negligence need not be of such a degree or recurrence as to deviate from instructions and produce poor quality work. stated that she still was not following company policy because she continued to disregard of company policy. Finally, her June 22, 2009 termination notice that she was not following instructions and was producing poor quality work in DALIANIS, C.J., and DUGGAN, CONBOY and LYNN, JJ., concurred. soldered. Three months later, she received another disciplinary notice warning she was argumentative with her trainer, and she allowed units to be improperly Affirmed. she was not observing company policy because she appeared asleep at work, this decision. The petitioner’s March 10, 2009 disciplinary notice stated that re Riendeau, 152 N.H. 396, 399 (2005). she was repeatedly negligent by not following procedure. The record supports In Here, the tribunal decided that the petitioner met the first prong because

negligent acts are enough to constitute “misconduct.” As well, the sufficient for a finding of “misconduct,” but recurring careless or Isolated or inadvertent instances of unsatisfactory conduct are not

. at 208-09 (quotations omitted).

Under the first prong: