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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-431
= &n= bsp; &nbs= p; = = FEBRUARY TERM, 2005
In re Appeal of Morgan Klarich = &n= bsp; } = APPEALED FROM:
= &n= bsp; &nbs= p; = &n= bsp; &nbs= p; } = Employment Security Board
} DOCKET NO= . 04-04-086-11
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Claimant appeals from an order of the Employment Security Board (ESB) upholding an appeals referee decision disqualifying claimant from unemployment compensa= tion and requiring her to repay over $9,000 in benefits she received. Claimant argues that she was deni= ed due process and that the order lacks evidentiary support. We affirm.
For seven years, claimant worked as a caregiver and manager for Den of the Bea= r, Inc. where she provided 24-hour care, fourteen days per month, for a disab= led man. In the summer of 2003, = she notified her employer that she planned to attend college in the fall and w= ould leave her job on September 1. She intended to work for the rest of the summer to earn money for school. Although claimant contends that s= he was fired after giving her notice, the appeals referee found that she left her employment voluntarily. After leaving her job, claimant applied for, and received, unemployment compensation. Sometime after leaving her job, claimant moved out of state.
Several months after claimant began receiving benefits, the new manager at Den of = the Bear notified DET that claimant had quit her job. DET sent claimant a notice that i= t would convene a telephone hearing to ascertain the facts of claimant’s departure from Den of the Bear. Claimant apparently did not receive the notice because it was sent = to her Vermont address. She the= refore did not participate in the telephone hearing. Following the hearing, DET entered findings against claimant, notified her that she was ineligible for benefi= ts, and ordered her to repay the benefits she had already received. Claimant appealed the decision to= the appeals referee.
The appeals referee scheduled a hearing on the appeal for May 10, 2004. A hearing notice dated April 30, = 2004 was mailed to the parties. T= he notice included essential information about the appeals process, including= a telephone number to call for assistance, a statement that claimant could a= sk the appeals referee to postpone and reschedule the hearing, and an explana= tion about how to obtain subpoenas for witnesses claimant wanted to testify on = her behalf. Claimant did not req= uest a continuance nor did she seek a subpoenas for any witness.
At the May 10 hearing, claimant testified as to her version of the events lea= ding to her departure from Den of the Bear.&nb= sp; Den of the Bear called its new manager and a brother of the disable= d man to testify about the employer’s view of claimant’s departure.<= span style=3D'mso-spacerun:yes'> The parties have completely diffe= rent versions of what happened on the day claimant left her employment. The appeals referee believed the employer’s version and issued a written decision, concluding that claimant quit her job. The a= ppeals referee also found that claimant misrepresented the reasons for her unemployment and ordered her to reimburse DET for the $9,326 in benefits s= he had received. Claimant pursu= ed an appeal to the ESB.
At the ESB, claimant contended that she was denied due process because the ap= peals referee gave her insufficient time in which to prepare her case. Claimant also alleged a violation= of due process because the referee did not subpoena two witnesses who claimant sa= id could corroborate her story about what happened. The ESB found no merit to those arguments. It explained that claimant did not tell the appeals referee that she needed additional time = to prepare, did not request a continuance, and never asked the referee to sub= poena any witnesses. The ESB revie= wed the record and determined that the evidence supported the appeals referee̵= 7;s findings and conclusions. Cl= aimant filed the present appeal.
In appeals from ESB decisions, the Court reviews the record in the light most favorable to the ESB’s conclusions.= Harrington v. Dep’t of Employment Sec., 142 Vt. 340, 3= 44 (1982). The Court will uphol= d the ESB’s conclusions if the findings support them. Id. In turn, findings will be upheld = on appeal if they are supported by the record evidence, even if substantial contrary evidence exists. Cook v. Dep’t of Employment & Training, 143 Vt. 497, 501 (1983).<= /p>
On appeal, claimant reasserts the due process argument she presented to the ESB. She claims that the ESB= denied her due process by giving her only a few days to prepare for the evidentia= ry hearing before the appeals referee. That error was further aggravated by the appeals referee’s fa= ilure to subpoena her witnesses before the hearing. We have no doubt that due process requirements apply to proceedings challenging an individual’s receip= t of unemployment compensation. <= u>Langlois v. Dep’t of Employment & Training, 149 Vt. 498, 501 (1988).<= span style=3D'mso-spacerun:yes'> To fulfill the requirements of due process, the administrative proceeding must provide the claimant with a meaningful opportunity to be heard. Id. In this ca= se, claimant participated in an evidentiary hearing before the appeals referee. She had the opportu= nity to present evidence and cross examine the employer’s witnesses. At no time did claimant ask for m= ore time to prepare. Nor did she= ask the appeals referee to subpoena any witnesses. Under the circumstances, the appe= als referee did not violate claimant’s due process rights.
Claimant also alleges that the appeals referee’s findings, which the ESB uphe= ld, were not based on credible evidence. We find no merit to this argument.= The finding that claimant quit her job is based the testimony of two witnesses for Den of the Bear. Claimant urges us to reverse the&n= bsp; finding, arguing that the employer’s witnesses lacked credibility. The trier of fa= ct has exclusive authority to determine the credibility of witnesses. Kasnowski v. Dep’t= of Employment Sec., 137 Vt. 380, 381 (1979). Because we do not second-guess credibility determinations, the finding that claimant quit her job must be upheld.
BY THE COURT:
Paul L. Reiber, Chief Justi= ce
John A. Dooley, Associate Justice
Frederic W. Allen, Chief Ju= stice (Ret.),