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Appeal of Casey B. Moore

August 21, 2012

APPEAL OF CASEY B. MOORE (NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY)


The opinion of the court was delivered by: Lynn, J.

Department of Employment Security

Argued: June 7, 2012

The petitioner, Casey B. Moore, appeals a decision of the appeal tribunal (tribunal), as affirmed by the appellate board, of the New Hampshire Department of Employment Security (DES) finding him ineligible for unemployment benefits because he voluntarily left his job without good cause. See RSA 282-A:32, I(a) (2010). We affirm.

The record supports the following facts. Moore began working as an arborist in 2008 for Guillemette Tree Services (GTS), a small business owned by Ken Guillemette. He worked part-time at a rate of $31.25 per hour, sometimes getting paid as an employee of GTS and sometimes as an independent contractor. On Thursday, July 15, Moore and Guillemette had a dispute about when Moore would be paid for work he had previously

performed. The following Saturday, Moore met with Guillemette to collect his wages, which Guillemette paid partially by cash and partially by check. He also issued Moore a written warning for failing to show up at work on the previous day. Moore, however, claimed he was unaware that he had been required to work that day.

The next Monday, Moore arrived at Guillemette's house early in the morning to begin that day's work. Before they started work, however, Moore told Guillemette that he wanted to "finish our conversation from Saturday," and stated that he wished to continue working for GTS as a subcontractor for $51.25 per hour. Guillemette expressed frustration and said, "I'll have to think about it." He then asked Moore, "So what's going on for today?" Moore responded that he would work as soon as Guillemette hired him as a subcontractor. Moore then left, and there was no further contact between them.

Moore thereafter applied for unemployment benefits, but DES denied his application based upon its finding that he voluntarily left his job at GTS without good cause. See RSA 282-A:32, I(a). Moore appealed and the tribunal held a hearing at which only Moore and his attorney appeared. The tribunal affirmed the denial of benefits because it also concluded that Moore voluntarily left his job. Moore then filed a motion to re-open the tribunal hearing, which was denied. He subsequently appealed to the appellate board, which affirmed the tribunal's ruling. The appellate board denied his timely motion for reconsideration, and this appeal followed.

On appeal, Moore argues that the appeal tribunal erred by failing to assign the burden of proof to GTS to show that Moore left work voluntarily. The State, on the other hand, argues that whether a claimant voluntarily quit or was fired is a factual inquiry to be made in the first instance by DES. Moore also argues that, whatever the burden of proof, the tribunal erred in concluding that he left work voluntarily.

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

The court shall not substitute its judgment for that of the appeal tribunal as to the weight of the evidence on questions of fact. The court shall reverse or modify the decision of the appeal tribunal, or remand the case for further proceedings, as determined by the court, only if the substantial rights of the appellant had been prejudiced because the administrative findings, inferences, or conclusions are:

(a) In violation of constitutional or statutory provisions;

(b) In excess of statutory authority;

(c) Made upon unlawful procedures;

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


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