Division of Employment Security- R-8 worker had reason to fear Mike Johnson

In a decision handed down February 3, 2012, an appeals tribunal for the Missouri Division of Employment Security said former Joplin R-8 environmental control worker Luther Hunt had every reason to fear retaliation from former Buildings, Grounds, and Transportation Director Mike Johnson.

Not only did Hunt's documentation convince the tribunal to overturn the denial of unemployment benefits for Hunt, but none of Hunt's accusations were denied by R-8 Administration during the hearing.

.In a Turner Report post from January 23, the 10-page letter sent by Hunt to Superintendent C. J. Huff, outlining his problems with Johnson, who is now in charge of the R-8 building projects, is included.

When Huff and Human Resources Director Tina Smith failed to take any action and Johnson retaliated against Hunt, Hunt submitted his resignation. He was denied unemployment benefits, but as part of his evidence during a tribunal hearing, Hunt provided a thorough account of events that occurred following Huff's receipt of his letter.


The Division of Employment Security tribunal's decision is printed below:

A deputy determined under the Missouri Employment Security law that the claimant was disqualified for benefits until the claimant has earned wages for insured work after November 30, 2011, equal to 10 times the claimant's weekly benefit amount, on a finding that the claimant left work voluntarily on that date without good cause attributable to the work or the employer. The claimant filed an appeal from that determination.

After due notice to the interested parties, the Appeals Tribunal heard the appeal by means of a telephone conference originating from Springfield, Missouri on February 1, 2012. The claimant testified. Two witnesses testified for the employer.

FINDINGS OF FACT

Claimant worked as a bus driver for four months and then in environmental control and utility for over four years. His last wage was $17.48 per hour. His last day present and working was November 30, 2011. Claimant worked from 6:30 a.m. to 3 p.m. Monday through Friday.

Claimant's testimony and employer's witness' testimony was, in part, contradictory. Claimant's evidence concerning his prior director is credible because he had personal knowledge of the events and employer did not refute most of the evidence. Employer's evidence regarding their investigation was credible. Claimant has received no reprimands or disciplinary actions.

On August 13, 2011, claimant wrote a letter to the superintendent of schools, explaining his concerns with his director. The letter included the following testimony:

Claimant's director exhibited erratic, threatening, and unprofessional conduct, with mood swings from giddy to furious. Claimant observed the director smash a student desk, rip his telephone out of the wall more than once, and repeatedly screaming and berating employees in fits of anger. Claimant observed the director using profanity, derogatory terms, and name calling. The director bragged about delaying work orders to punish principals. The director intentionally bumped the back of claimant's vehicle twice, laughing. He told employee that he was just joking. The director displayed no fear of being caught or disciplined for his actions.

The director repeatedly exaggerated his own knowledge and demonstrated contempt for rules, regulations, and laws in other areas. The director ordered digging to begin without calling Dig-Rite to determine the location of underground lines. Specifically, claimant recalled an incident when they followed such an order and almost hit a gas line.

Claimant advised the director of a citation for storing bales of straw and gasoline containers in a room with electric heaters. The director told claimant that he didn't care what the fire marshal had to say. The director told claimant that he was overstating claimant's hours to receive more money on an insurance claim. The director ordered herbicides sprayed by unlicensed employees in violation of EPA regulations. Claimant's director told him not to perform pre-trip inspections on his bus prior to stepping in as a substitute school bus driver.

The director, through a supervisor, suggested that if claimant pushed any matter concerning compliance with federal regulations that his employment and that of his co-worker would be terminated. The director required claimant to perform asbestos removals without having the required medical screening. The EPA visited and found the asbestos program to be inadequate- including the lack of medical screening. The director ordered unsafe practices regarding asbestos abatement and directed the workers not to inform claimant, who was to keep all records of all such abatements. One such example was the removal of suspect tiles with hammers.

In the letter, claimant questioned whether the director was able to deceive his superiors or the behavior was allowed. The letter was given to human resources for investigation. On September 2, 2011, the director of human resources called claimant and asked for a copy of asbestos documents pursuant to the superintendent's request. Claimant supplied the documents on September 6, 2011.

On September 8, 2011, claimant and the director of human resources met. He explained that he was concerned that the administration condoned his director's behavior. Claimant also told her that he was concerned about retaliation because he believed that the superintendent and claimant's director were friends, based on others' knowledge of them attending athletic events in a number of cities. They discussed his concerns and the director advised claimant that they were investigating the matter and that he should take a wait and see approach.

On September 26, 2011, claimant's director announced that he was being transferred to another area for construction projects due to the May 22 tornado in Joplin. A new director took his place on November 7, 201. However, the prior director retained his old physical office. Claimant heard from other employees that the prior director was still running the show.

On November 15, 2011, claimant received a letter from his new director that he and the other asbestos worker would be working four 10-hour days and on weekends starting November 29. The employee delivering the letter told claimant that he knew that the letter had come from the prior director, which was logical since it pertained to demolition of buildings due to tornado damage. Claimant perceived this action as retaliatory.

Next, another employee called claimant and the other asbestos worker in to ask them to go into a structurally unsound school building to assess accessibility to the band room for asbestos testing. Claimant and his partner deemed the assignment unsafe, declined to perform the task, and days later escorted an outside contractor to the building. The contractor used a protective suit and mask and found asbestos contamination on 16 of 20 samples taken from settled dust. Claimant construed this as a continuation of prior unsafe directives.

On November 16, 2011, claimant gave notice that he was quitting effective November 30, 2011. Claimant addressed the notice to his new director, but did not talk with him regarding the reasons for his quitting. The final incidents causing claimant to decide to quit was when work hours were changed to include weekends, he was told that the prior director was still in control, and he was sent to a dangerous environment for asbestos sampling.

Claimant reasonably believed that the issues would continue because he observed his bosses working together, showing a sense of entitlement or privilege, and leaving his prior director with the ability to retaliate. To validate his concerns about the wrongful behavior of his director, claimant cited a pending wrongful termination lawsuit filed by a former custodial supervisor against the director. He also heard rumors of a settlement of back pay plus punitive damages of $98,000 in favor of a former lead carpenter against the school and involving the director. Employer did not object to this evidence, or refute it. Claimant recalls the director of human resources smiling when claimant spoke of the settlement.

After a section reviewing the law, the following decision was made:

Claimant voluntarily left his job on November 30, 2011. The issue is whether he left for good cause attributable to his work or to his employer. The claimant bears the burden of proving good cause.

On the whole record the competent and substantial evidence shows that claimant had legitimate concerns about his director, communicated those concerns to employer, and that employer transferred the director to another position, However, when claimant's hours were changed to perform duties which fell under his prior director's responsibility, it was reasonable for claimant to conclude that the problem would continue. When his working hours were changed, other employees directly stated that the director was still in control and claimant was asked to put himself in danger, it was not unreasonable for claimant to conclude that these directions could be retaliation from his prior director. Although claimant could have given the administration more time to address his concerns, considering the magnitude of the issues and the director being moved into another position with control over claimant, his decision to quit was reasonable.

Claimant demonstrated good faith by sharing his concerns with his employer. He could not do so sooner because of the power that the director appeared to have in the administration. Claimant could see that if the complaint did not yield results that he would have to leave or be at risk for retaliation.

Claimant's decision to leave was reasonable and done in good faith. His reasons were directly attributable to his work and to his employer. Claimant has met his burden or proving good cause.

The Appeals Tribunal concludes that claimant voluntarily left his employment on November 30, 2011, with good cause attributable to his work or to his employer.

The deputy's determination is reversed. The claimant is not disqualified for benefits by reason of the claimant's voluntary separation from work on November 30, 2011.

Dated and mailed at Jefferson City, Missouri, this third day of February 2012.

T. L. Hacker
Referee

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