Zastoupil v. Dept of L & I

2024 MT 125N

Opinion

06/11/2024

DA 23-0471 Case Number: DA 23-0471

IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 125N

BRENDA ZASTOUPIL,

Petitioner and Appellant,

v.

DEPARTMENT OF LABOR & INDUSTRY, UNEMPLOYMENT INSURANCE APPEALS BOARD, AND RYAN RESTAURANT CORPORATION,

Respondents and Appellees.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Rosebud, Cause No. DV 2023-05 Honorable Nickolas C. Murnion, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Brenda Zastoupil, Self-represented, Forsyth, Montana

For Appellee Department of Labor & Industry:

Quinlan L. O’Connor, Chief Legal Counsel, Aleea K. Sharp, Agency Counsel, Montana Department of Labor & Industry, Helena, Montana

Submitted on Briefs: May 22, 2024

Decided: June 11, 2024

Filed:

Vor-64w—if __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Brenda Zastoupil appeals from the June 21, 2023 Order Re: Petitioner’s Request for

Judicial Review entered by the Sixteenth Judicial District Court, Rosebud County, which

affirmed the decision of the Unemployment Insurance Appeals Board (Board) that held

Zastoupil was not entitled to additional unemployment compensation after she failed to

accept an offer from her former employer to return to suitable work without good cause.

We affirm.

¶3 Zastoupil worked for Ryan Restaurant Corporation (Ryan), which operated an

Applebee’s Restaurant, but was laid off when the restaurant temporarily closed during the

COVID-19 pandemic. Her last day of work was March 15, 2020. Zastoupil filed a claim

for unemployment compensation and received benefits for the weeks ending March 28,

2020 through June 26, 2020. Zastoupil called her employer several times in the weeks

following her layoff, but the restaurant did not reopen its dining room for customer service

until May 4, 2020.

¶4 On May 21, 2020, Ryan sent a letter advising Zastoupil that it had reopened its

dining room “in compliance with the Governor’s guidance and local health department

guidelines.” The letter stated, “[a]s a result, store management reached out to you the week 2 of April 27th regarding your scheduled return to work. Please contact your department

manager or general manager regarding your rehire.” In response to Ryan’s letter, Zastoupil

sent a letter to Ryan dated June 15, 2020, discussing the spread of the COVID 19 virus,

and stating:

[T]herefore, person-to-person spread of COVID-19 is likely to continue to occur under the current conditions in compliance with Governor Bullock’s guidelines which continues to pose a health endangerment risk to my position as a server at Applebee’s.

Therefore, based on Governor Bullock’s directive and my position as a server which poses a health endangerment risk as stated to Dave Roller and store management expressing positions being filled with full-time employees with health insurance and there is a reduced seating capacity, my position was not eligible for rehire.

I appreciate your guidance and support at Applebee’s. I wish you and the company the best success in the future.

¶5 In response to an inquiry from the Unemployment Insurance Division (UID)

regarding Zastoupil’s claim for benefits, Ryan acknowledged it had laid off Zastoupil due

to the temporary closing of its restaurant, but explained: “However, we definitely needed

her back. On May 11, 2020 Dave, [the] manager called her to ask her to return to work

(she was serving roughly 20 hours per week before the shut down) and she told Dave she

would not be returning – she said it was due to health concerns but did not provide other

detail.”

¶6 On November 15, 2021, UID issued a Determination that Zastoupil was disqualified

from receiving further benefits. The decision explained that Zastoupil was “offered an

opportunity on 5/11/21 to return to employment after your employer opened back up after

the Covid-19 shutdowns. The position offered paid the prevailing rate of pay for the area 3 and was work you were qualified to perform.” The Determination found that Zastoupil

had not taken the offered work “because of Covid-19 concerns,” but that good cause for

her refusal had not been established in that Zastoupil had not shown there was a medical

reason she could not return to work. Zastoupil then requested a Redetermination. UID’s

Redetermination decision found that it could not establish that Zastoupil had affirmatively

refused to return to work prior to her letter of June 15, 2020, and therefore correspondingly

extended her eligibility for benefits. However, it denied continuing benefits because good

cause had not been established for Zastoupil’s failure to return to work, as likewise found

in the initial Determination.

¶7 Zastoupil appealed from the Redetermination and a hearing was conducted by a

Hearing Officer on November 14, 2022. In his decision entered on November 22, the

Hearing Officer found that the evidence disproved Zastoupil’s assertion that she had not

been offered work because she had been told that Ryan would be rehiring only employees

who had worked at least one year and had health insurance, and stated, “[w]hether

Applebees initially planned to rehire a limited number of employees does not change that

by May 21, 2020, there was an offer to contact Applebees about returning to work.

Similarly, whether the restaurant was reopening with limited capacity does not change that

May 21, 2020 is a clear statement Ryan Restaurant Corp. was offering Zastoupil work.”

Regarding the health risk, the Hearing Officer reasoned that “Zastoupil argues the work

presented a risk of COVID-19 infection, but did not present evidence Applebees was not

following CDC or local health guidelines,” or otherwise demonstrate that “the work was

4 unsuitable or could not be performed while observing COVID-19 emergency declarations

or directives.” The Hearing Officer thus affirmed UID’s Determination.

¶8 Zastoupil appealed to the Board, which conducted a review with the parties on

January 4, 2023, and issued its decision on January 9. The Board noted that Zastoupil had

provided “an exhaustive analysis of COVID-19’s impact and her interest not to return,”

but that, “[w]hile her concerns regarding COVID-19 were just, they were not attributable

to the employer, and Zastoupil made her own decision not to return out of concern for her

health.” The Board expressly considered that the standards for compensation eligibility

“were applicable to everyone in those conditions at that time” and concluded there was

substantial, credible evidence that Zastoupil failed to return to work as found by the

Hearing Officer.

¶9 Zastoupil petitioned the District Court for judicial review of the Department’s final

decision. The District Court methodically addressed the eligibility requirements and found

that substantial evidence supported the Department’s finding that Ryan had offered

Zastoupil a position for returning to work that was suitable and that she had refused. It

considered Zastoupil’s phone record evidence of calls she had made to Ryan, but noted

that there was no evidence of any calls made to Ryan after Ryan’s letter offering Zastoupil

the opportunity to return to work. The court concluded that the Department had properly

construed Zastoupil’s June 15, 2020 letter “as a rejection of the offer of work,” noting

Zastoupil’s statement therein that, “I wish you and the company the best success in the

future,” and concluding that “Petitioner failed to accept Applebee’s offer of employment.”

The court noted the Hearing Officer’s citation to Emergency Rule V(2), adopted during the 5 pandemic, which similarly provided that a claimant may not refuse “to return to work if

requested by the employer and suitable work can be performed in compliance with the

emergency declarations and directives.” Montana Administrative Register 24-11-357.

Finally, the District Court considered the record and rejected Zastoupil’s argument that the

Department and Ryan had engaged in fraud by concealing documents. Zastoupil appeals.

¶10 “When reviewing the finality of a decision on claims for unemployment benefits

made by the Unemployment Insurance Appeals Board, this Court must apply a statutory

standard of review. Pursuant to § 39-51-2410(5), MCA, ‘the findings of the board as to

the facts, if supported by evidence and in the absence of fraud, are conclusive and the

jurisdiction of the court is confined to questions of law.’ More specifically, the findings of

fact must be supported by substantial evidence.” Crouse v. State, 2017 MT 254, ¶ 15, 389

Mont. 90, 403 P.3d 1260 (citations omitted). “Substantial evidence is ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion . . . . It is

more than a scintilla, but less than a preponderance of the evidence.’” Crouse, ¶ 15

(citations omitted).

¶11 Zastoupil states seven sub-issues on appeal, but they all converge within the

question of whether the Department erred by finding that she did not satisfy the eligibility

criteria for continued benefits. She argues the District Court’s order was erroneously

entered based upon “proven false findings” by the Hearing Officer and Board, that fraud

was committed by Ryan and the Board, without which there would not be sufficient

documentation to support the Department’s decision, and that she sustained a constructive

discharge that should qualify her for unemployment benefits. 6 ¶12 However, a record review indicates very clearly that there was sufficient evidence

to support the findings, including Zastoupil’s own decision not to pursue a return to suitable

work with Ryan, explained in her letter of June 15, 2020, and, despite her arguments, by a

failure to prove with evidence that the work conditions implemented by Ryan for restaurant

operations during the pandemic violated health guidelines or subjected her to an

unreasonable personal health risk. This record does not support a claim of constructive

discharge, but an individual decision not to return to work. “An individual is disqualified

for benefits if the individual fails without good cause to: . . . (ii) accept an offer from a

former employer or a new employer of suitable work that the individual is physically able

and mentally qualified to perform.” Section 39-51-2304(1)(a)(ii), MCA; see also Admin.

R. Mont. 24.11.455(1)(b) Refusal of Work (“Pursuant to 39-51-2304(1), MCA, a claimant

is disqualified for benefits if the claimant fails without good cause to: . . . (b) accept an

offer of suitable work which the individual is physically able and mentally qualified to

perform.”). It is clear that Zastoupil was capable of performing her former work itself, and

she does not contend otherwise, except for the health risks she perceived. Though she may

have asserted those risks sincerely and in good faith, Zastoupil did not show that

Applebee’s was not in compliance with emergency declarations and directives when it

requested her return to work.

¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s interpretation and application of the 7 law was correct, including its determinations that the Department’s findings were

sufficiently supported by the evidentiary record, and no fraud was committed.

¶14 Affirmed.1

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ INGRID GUSTAFSON

1 Zastoupil’s arguments make several references to an “overpayment” issue, i.e., requesting dismissal of the case because “the Department of Labor & Industry, UI Division’s Decision requesting Statement of Benefits Overpayment because this case is fraudulent.” However, as the Department notes, the issue of a claimed overpayment of benefits was not raised or litigated before the Department at any stage of the proceeding, and no decision addressed it.