Keren Sita v. Department of Labor

VERMONT SUPREME COURT Case No. 24-AP-284
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

JUNE TERM, 2025

Keren Sita* v. Department of Labor } APPEALED FROM:
} Employment Security Board
} CASE NO. 12-23-020-01

In the above-entitled cause, the Clerk will enter:

Claimant Keren Sita, self-represented, appeals an Employment Security Board order
concluding that she was ineligible to receive unemployment compensation benefits for a one-
week period during which she failed to participate in required reemployment services. We
affirm.

At issue in this appeal is 21 V.S.A. § 1343(a), a provision of Vermont’s Unemployment
Compensation Law setting forth conditions a claimant must satisfy to “be eligible to receive
benefits with respect to any week.” Among other things, a claimant must be “available for
work” and “participate[] in reemployment services, such as job search assistance services, if the
individual has been determined to be likely to exhaust regular benefits and needs reemployment
services pursuant to a profiling system established by the Commissioner” of the Department of
Labor. Id. §§ 1343(a)(3)(A), (a)(6), 1301(2). “In determining the availability of any individual
for work during any week,” the Commissioner or his authorized representative “may
require . . . that the individual participate in reemployment services.” Id. §§ 1343(a)(3)(A),
1301(2). Pursuant to § 1343(a)(3)(B), a claimant who fails to participate in such services
“without good cause . . . shall be ineligible for each week the failure continues.”

Under this provision, a Department claims adjudicator concluded that claimant was
ineligible for benefits in the week ending on November 25, 2023. The determination explained
that claimant was scheduled to complete a mandatory online Re-Employment Services and
Eligibility Assessment (RESEA) program orientation assessment by November 20, 2023, but did
not do so until November 29, 2023, resulting in a weeklong period of ineligibility.

Claimant appealed the adjudicator’s determination to an administrative law judge (ALJ),
who held an evidentiary hearing. Claimant did not object to the admission of exhibits provided
by the Department, and each was entered into the record. Claimant initially testified that she was
not notified of the RESEA orientation assessment requirement until after the November 20
deadline had passed and her claims had been denied based on her failure to participate. The ALJ
asked claimant about one of the Department’s exhibits—observing that this “claimant inquiry
notepad” appeared to reflect that claimant called the Department on November 13, 2023, and
indicated that she was upset by the requirement that she participate in RESEA to receive
benefits. Claimant responded that during this call, she was attempting to ensure that she was not
selected to participate in the program for biased or discriminatory reasons. The ALJ asked
claimant to clarify when she learned of the requirement, noting that the exhibit seemed to reflect
that the Department had given claimant advance notice of her selection and the November 20
deadline. In response, claimant stated that she could not recall when or how she learned of the
orientation assessment requirement and corresponding deadline. She ultimately testified that the
reason she did not complete the orientation assessment before November 20 was because she
needed additional time to determine whether the RESEA selection process was fair before fully
committing to the program.

The ALJ subsequently issued a written decision finding that claimant was required to
complete the RESEA orientation assessment by November 20, 2023, but did not do so until
November 29, 2023, because she had concerns of racial discrimination. The ALJ concluded that
timely completion of the orientation assessment was a prerequisite for claimant’s continued
receipt of benefits under § 1343(a)(3) and (6), and therefore affirmed the denial of her claims for
the one-week period at issue.

Claimant appealed to the Board, where she argued that her delay in completing the
orientation assessment was necessary to accommodate her investigation of the RESEA selection
process. After reviewing the record evidence, the Board adopted the ALJ’s findings and
conclusions. In its decision, the Board recognized the serious nature of claimant’s concerns
about the selection process but found no evidence of discrimination or bias in the record and, as a
result, no basis to backdate claimant’s eligibility. In other words, the Board effectively
concluded that on this record, claimant’s desire to perform an investigation before engaging with
the RESEA program did not constitute “good cause” for her failure to satisfy the orientation
assessment deadline within the meaning of § 1343(a)(3)(B). This appeal followed.

“Our review of Board decisions is limited.” Blue v. Dep’t of Lab., 2011 VT 84, ¶ 6, 190
Vt. 228. This Court will uphold the Board’s factual findings unless clearly erroneous, and its
conclusions if reasonably supported by those findings. Worrall v. Dep’t of Lab., 2022 VT 46,
¶ 11, 217 Vt. 240. We generally defer to the Board’s interpretations of the statutes it is charged
with administering and presume that decisions within its expertise are correct absent “a clear
showing to the contrary.” 863 To Go, Inc. v. Dep’t of Lab., 2014 VT 61, ¶ 8, 196 Vt. 551.

Claimant first argues that the Department violated her state and federal constitutional
rights to procedural due process by failing to provide her with clear, accessible, written
information about the RESEA orientation assessment and the deadline for its completion,
resulting in a denial of benefits based on her failure to fulfil an obligation of which she was
allegedly unaware. She further suggests that the lack of adequate notice may have been
intentional and discriminatory in nature.

Claimant did not, however, raise this issue below. To preserve an issue for our review on
appeal, a party must first present it to the administrative agency “with specificity and clarity in a
manner which gives the agency a fair opportunity to rule on it.” Pratt v. Pallito, 2017 VT 22,
¶ 16, 204 Vt. 313 (alteration and quotation omitted). Claimant’s argument before the ALJ that
she lacked appropriate notice was abandoned on appeal to the Board and, in any event,
insufficiently specific to preserve the procedural-due-process claim she seeks to raise on appeal.
See, e.g., State v. Ben-Mont Corp., 163 Vt. 53, 61 (1994) (holding that mere mention of fair
warning below was insufficient to preserve due-process claim for appeal and therefore declining
to address it). To the extent claimant seeks to raise a separate notice argument—independent of

2
her procedural-due-process claim—this argument is likewise unpreserved: before the Board,
claimant argued only that she did not complete the orientation assessment because she needed
additional time to investigate her concerns of discrimination and bias. She did not renew her
contention that she lacked notice. Because these arguments are therefore unpreserved, we do not
address them.* Pratt, 2017 VT 22, ¶ 16.

The same is true of claimant’s argument that the Department abused its discretion and
engaged in “administrative gaslighting” by allegedly dismissing her inquiries about the RESEA
selection process and orientation requirements. Because claimant did not raise this contention
before the agency below, it is not preserved for our review on appeal. Id.

Finally, claimant contends that the Board’s decision should be reversed because the
record suggests that the Department engaged in unlawful discrimination by selecting her for
participation in RESEA based on her status as a Black woman experiencing housing insecurity.
Claimant does not, however, identify any specific portion of the record supporting this assertion.
See V.R.A.P. 28(a)(4)(A) (requiring that appellant’s principal brief include argument containing
“appellant’s contentions and the reasons for them—with citations to the authorities, statutes, and
parts of the record on which the appellant relies”); see also Pcolar v. Casella Waste Syst. Inc.,
2012 VT 58, ¶ 19, 192 Vt. 343 (explaining that self-represented litigants must satisfy minimum
briefing standards of Rule 28(a)(4)). The only record evidence we can identify regarding the
basis for claimant’s selection is her own testimony before the ALJ, in which she explained that
she determined the profiling process was fair:

[O]nce I . . . took the steps to figure out that this was a fair and
non-discriminatory way that I was selected, that’s when I fully
participated. . . . I do believe that I reserve the right to determine
that there was fairness in the selection criteria. And once I
determined that[,] I engaged actively and actually had no problem
and felt like the program was rewarding. But I had to determine
that they weren’t selecting me for their own discriminatory
reasons.

Because the record does not support the factual predicate on which claimant’s argument is based,
we do not reach her related legal contentions.

To the extent claimant seeks to raise additional arguments—for example, through
reference to unspecified “procedural irregularities” below—we are unable to address them
because they are inadequately briefed. See V.R.A.P. 28(a)(4)(A); Pcolar, 2012 VT 58, ¶ 19.

*
We observe, however, that inherent in the Board’s finding that claimant did not timely
complete the orientation assessment because she had concerns of bias is a finding that claimant
had actual notice of this requirement and the accompanying deadline. See Bouchard v. Dep’t of
Emp. & Training, 174 Vt. 588, 589 (2002) (mem.) (“In reviewing the Employment Security
Board’s action, this Court must, if possible, construe the Board’s findings so as to support the
judgment.”). This finding is supported by record evidence. As discussed above, claimant’s
testimony on this point was, at best, equivocal. And as the ALJ pointed out at the hearing, the
“claimant inquiry notepad” submitted by the Department—and admitted without objection—
reflected that claimant had timely notice of the orientation assessment requirement, the deadline
for its completion, and the consequences for failure to meet that deadline. The weight,
credibility, and persuasive effect of this evidence was for the Board in its role as factfinder.
Cook v. Dep’t of Emp. & Training, 143 Vt. 497, 501 (1983).
3
Claimant has identified no basis to disturb the Board’s decision that she was ineligible for
benefits during the one-week period at issue.

Affirmed.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

4