Opinion
SUPREME COURT DOCKET NO. 2012-017
07-18-2012
Lashell Williams v. Department of Labor (Hart Hotels/Dorset Hotel Associates, Employer)
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Employment Security Board
DOCKET NO. 10-11-059-06
In the above-entitled cause, the Clerk will enter:
Claimant appeals the decision of the Vermont Employment Security Board denying her claim for unemployment benefits. Claimant was employed by Hart Hotels as a front desk clerk for almost two years when, in August 2011, she stopped working at the hotel. The circumstances of her departure were disputed at the administrative proceedings, and the Board denied benefits based upon its conclusion that she voluntarily left her employ without good cause attributable to her employer. We affirm.
Claimant submitted a "detailed reason" for her alleged discharge on a fact-finding form provided to a claims adjudicator for the Department of Labor. She indicated that she did not know she was supposed to work on August 1, but then called to find out when she was scheduled to work. According to claimant, her supervisors said they needed to talk to her about what was going on, but when she spoke to her manager, he did not know what they would do. Claimant concluded her description of the incident by recounting that she left her supervisors a voicemail saying that they were probably hiding from her and so she was assuming that she was fired.
The claims adjudicator received the employer's version of events through another form and written statements provided by three of employer's personnel. The front desk supervisor and the front office manager indicated that: (1) claimant did not show up for her scheduled work shift on August 1; (2) neither the front desk supervisor nor manager were able to reach her by telephone; (3) claimant called the next morning, August 2, and asked if she was scheduled to work that day; (4) when told that she was and that she had been scheduled the day before as well, she asserted that the schedule must have been changed and she declined to come into work until she talked to the manager; (5) she spoke to the manager on August 4 and scheduled an appointment to meet with him the next day; (6) the next day she arrived late and left without speaking to the manager; (7) she finally met with the manager and general manager on August 9; (8) following the meeting, they told her they would let her know within seventy-two hours what they were going to do; and (9) before the seventy-two-hour period had expired, claimant left a telephone message stating that she was not going to play games anymore and that since they had not called her back, she assumed she was fired. The human resources manager for employer submitted a statement in support of his colleagues' statements.
In short, employer contended that claimant abandoned her job and claimant contended that she was constructively discharged. Based on the parties' statements, the claims adjudicator determined that claimant was not entitled to unemployment benefits because she voluntarily left her employ without good cause attributable to her employer.
A telephonic hearing was held on appeal before the administrative law judge (ALJ). Only claimant appeared for the hearing. Her testimony, in contrast to her initial statement to the claims adjudicator, was that: (1) her employer knew that she knew there were illegal immigrants working for employer; (2) her manager was sexually harassing all of the women employees, including herself, and he knew that she knew he was sexually harassing people and that she was about to report him; (3) somebody told him that she was going to stand up for herself, and then she started seeing her hours cut and not being scheduled to work; (4) after calling and asking her manager if she could come in to talk to him about why her hours were being cut, she met with two of her supervisors, including her manager, and begged them to schedule her for work; (5) they told her they would talk about it and get back to her; (6) her manager told her that he wanted her on the schedule again, but he would have to see what the other supervisor said and then get back to her in two or three days; (7) she received no phone call from employer in the next week and a half; (8) she called her manager three times and left messages but he did not call back; (9) in the last message she asked her supervisors to stop playing mind games with her; and (10) the reason her supervisors stopped scheduling her for work and did not return her calls was because they knew she was going to report that her manager was sexually harassing female employees.
The ALJ questioned claimant based on the statements that employer had provided to the claims adjudicator. Claimant testified, among other things, that she was not scheduled to work on August 1 or 2, that she was not told to come in on August 2, that she did not arrive late for a scheduled meeting with her manager, that neither her manager nor any other supervisor left phone messages for her, and that she did not say in her last message that she assumed she was fired.
The ALJ upheld the claims adjudicator's decision, stating that while employer did not participate in the hearing, the statements it provided gave a credible account of the timeline leading up to claimant's separation from employment. The ALJ concluded that all of claimant's actions, as documented by employer, demonstrated that claimant was not interested in retaining her job. On appeal to the Board, claimant and three of employer's representatives, including two who had previously provided statements to the Department, appeared at a hearing before the Board to give their accounts of what had transpired. After listening to these accounts and questioning the participants, the Board upheld the ALJ's decision, agreeing that none of claimant's actions indicated a sincere desire to return to work. See Rushlow v. Dep't of Emp't & Training, 144 Vt. 328, 331 (1984) (noting that before leaving employment, employee has duty to attempt to resolve any workplace grievance)
The Board warned the parties that it would entertain arguments only and not receive any new evidence. Then, however, the Board allowed the parties to give their own factual accounts of what had transpired with respect to claimant's departure. For the most part, the parties' accounts did not differ significantly from their previous accounts, although claimant now took the position that she made an "honest mistake" by not coming in on August 1 when she was scheduled for work. In Piper v. Dep't of Labor, 2011 VT 32, ¶¶ 15-17, 189 Vt. 417, we found fault with a procedure similar to what occurred here, where the Board stated that it would take no new evidence but then in effect allowed the parties to give unsworn testimony concerning the facts of the case. This practice is not helpful and risks reversal. Claimant does not, however, complain of a Piper violation on appeal and the additional unsworn information presented was little more than repetitive of the evidence presented to the ALJ, and thus warrants no reversal in this case.
On appeal to this Court, claimant argues that the Board's decision cannot stand because the Board relied exclusively on unsworn hearsay statements from interested representatives of employer despite her live testimony directly contradicting those statements. Claimant's argument echoes with the so-called residuum rule, which precludes administrative decisions based solely on hearsay when contradicted by live testimony. See Watker v. Vt. Parole Bd., 157 Vt. 72, 74 (1991) (noting that under residuum rule, even though administrative agency is not bound by rules of evidence, reviewing court must set aside findings not supported by at least some admissible evidence). Although we expressed concern some years ago about "exclusive reliance [in administrative proceedings] on hearsay evidence where it is disputed by the claimant," Harrington v. Dep't of Emp't & Training, 152 Vt. 446, 449 (1989), we have since rejected the residuum rule, like most courts, in favor of a standard of review in which the reliability of the hearsay evidence is considered. Watker, 157 Vt. at 76-77. Thus, "[e]ven in instances where a Board's decision is supported only by hearsay evidence, that evidence may have sufficient indicia of reliability to support the Board's findings." See Bouchard v. Dep't of Emp't & Training, 174 Vt. 588, 590 (2002) (mem.). "Factors to be considered include whether the hearsay was specific and detailed, whether the statements made were consistent, and whether the sources of the hearsay evidence were disinterested persons." Id.
In this case, employer's hearsay statements were specific and detailed. They were also consistent for the most part, notwithstanding claimant's efforts to point out minor discrepancies in the statements. Although the statements were from agents of the employer interested in the outcome, that factor is not disqualifying, particularly when their version is substantially in accord with claimant's initial statement submitted to the claims adjudicator on the point that, after lapses in communication, claimant left a message saying she "assumed" she was fired. Accordingly, there was non-hearsay evidence—claimant's initial statement—to bolster aspects of the employer's hearsay.
Despite the Board's characterization of claimant's initial statement as hearsay, it was admissible as a statement by a party-opponent and was not hearsay. V.R.E. 801(d)(2)(A).
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Moreover, claimant's testimony differed significantly from her initial statement and alleged an unsupported and illogical motive for her firing. Her testimony about sexual harassment and her role as a potential whistleblower, first raised before the ALJ, was absent in her initial statement. Her testimony that the employer was motivated to fire her before she could allege sexual harassment makes little apparent sense since she would remain free, as now, to make that accusation. Claimant's denial of the employer's statement—confirmed by her own initial statement—that she left a message saying she assumed she was fired, could also reasonably lend doubt to her testimony. Claimant understandably disagrees with the Board's credibility assessment, but its credibility conclusion was not untenable. See Cook v. Dep't of Emp't & Training, 143 Vt. 497, 501 (1983) (explaining that weight, credibility, and persuasive effect are for Board to decide, and noting that we will uphold Board's findings if "supported by credible evidence, even if there is substantial evidence to the contrary"). The Board need not explain its decision to credit the employer's hearsay rather than claimant's testimony. See Omega Optical, Inc. v. Chroma Tech. Corp., 174 Vt. 10, 20-21 (2002) (rejecting plaintiff's argument that trial court committed reversible error by failing to make adequate findings on credibility of defendants).
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice