Stugart v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge LEAVITT.

Respectfully, I dissent. Claimant lodged an objection, twice, to the admission of Employer’s questionnaire for the stated reason that it contained false statements. This is sufficient to lodge a hearsay objection. More importantly, I disagree with the majority’s conclusion that Claimant’s testimony corroborated the dis-positive statements in Employer’s questionnaire. Because the questionnaire did not satisfy either prong of Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976),1 there is no substantial evidence to support the Board’s finding that Claimant voluntarily resigned and was not discharged from his job.

Employer did not attend the hearing in question. The Referee sought to admit all of the documents in Claimant’s claim record, including Employer’s questionnaire, which recited Employer’s version of Claimant’s separation from employment and was submitted to the Department of Labor and Industry in response to an inquiry from the Unemployment Compensation Service Center. Claimant objected generally to the truth of the statements in “[sjome of’ the documents. Notes of Testimony, September 11, 2012, at 2 (N.T. -).2 The Referee acknowledged Claimant’s objection with a simple “OK” and then asked, again, if he objected to the entry of the documents into the record. On the third request, Claimant acquiesced. In my view, Claimant’s eventual acquiescence does not change the fact that he objected to the truth of the matters asserted in the claim record documents, which is the same as a hearsay objection.

It is true, as the majority observes, that a referee should not assume the role of an advocate for a claimant who is not represented at the hearing. However, here, the Referee was on notice that Claimant disputed the veracity of statements contained in the documentary record. Later in the hearing Claimant specifically challenged the assertion in Employer’s questionnaire that he was sent home on his last day with the “choice whether to come back on Monday or not.” N.T. 5. It was clear that Claimant and Employer had markedly different versions of the circumstances surrounding Claimant’s separation from employment, and this triggered the Referee’s *616duty to offer “every assistance compatible with the impartial discharge of [her] official duties,” 34 Pa.Code § 101.21(a). At a minimum, the Referee should have ascertained which specific statements Claimant considered false to satisfy her duty under 34 Pa.Code § 101.21(a). Notably, the regulation does not direct a referee to offer assistance to an employer who chooses not to attend the hearing.

Even assuming Claimant did not properly object to the admission of Employer’s questionnaire, the hearsay statements in that questionnaire were not corroborated by Claimant’s testimony. Employer’s questionnaire stated that Claimant’s supervisor informed him on his last day of work that he could “come to work on Monday but he could not talk about government satellite waves or torturing any longer during work hours.” Certified Record (C.R.) Item No. 3, at 4. Claimant testified emphatically that his supervisor “told me not to come back if my opinion didn’t change completely.” N.T. 5, 7.3 There is a qualitative difference between these two versions. Being told not to volunteer an opinion is vastly different from being ordered to change one’s world view.4

Claimant testified to his belief that the government’s neural satellite technology was interfering with production at Employer’s facility. Thus, whenever his supervisors asked him why production was not meeting expectations, Claimant faced a catch-22. In order to respond to his supervisors he had to voice the very opinions Employer sought to quell. The majority observes that Claimant “is the only person who can command what comes out of his mouth.” Majority op. at 613. That is certainly a physiological truth. However, in Claimant’s view, it was because of Employer’s inquiries that he was compelled to speak about his beliefs to his “coworker,” ie., his supervisor.

*617The Referee credited Claimant’s testimony, as was necessary to use it as corroborating evidence. This is not to say that the Referee shared Claimant’s beliefs about what was causing Employer’s production to slow down. Claimant’s unrebut-ted testimony was that he was dismissed from work unless and until he changed his beliefs. It is a dismissal, not a voluntary resignation, when an employer tells an employee not to return to work unless he changes any belief, whether it is the cause of global warming or whether jury commissioners should be abolished.

It was Employer that had a choice in this proceeding. It made the choice not to attend the hearing and present evidence. As a result, the record does not support the Board’s conclusion that Claimant voluntarily quit his employment without a necessitous and compelling reason. Accordingly, I would reverse.

. In Walker, this Court held that "[hjearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of the Board, [i]f it is corroborated by any competent evidence in the record.” Walker, 367 A.2d at 370.

. The majority states that Claimant "lodged an objection about the August 1, 2011 warning.” Majority op. at 609. The relevant exchange was as follows:

[Referee:] Do you have any objection to any of the documents being entered into the record today?
[Claimant:] Yeah. Some of them aren’t completely honest, like, some of the statements I’ve read weren't actually what came out of my mouth.
[Referee:] Okay. And do you have any objections to anything?
[Claimant:] Yeah, some of them weren’t actually facts, like, some of the statements that were stated, and there was also another incident that I was written up for [on August 1, 2011] that wasn’t actually my fault but then documented in there, where someone was involved with lining it incorrectly.

N.T. 2. Claimant’s objection was lodged to "the documents being entered into the record today,” not to a particular document or a particular statement. The reference "another incident that I was written up for [on August 1, 2011] that wasn't actually my fault” was offered as an example of an untruthful statement.

. The UC Service Center’s record of oral interview with Claimant, cited by the majority, also supports Claimant’s version. When asked why he did not return to work on the Monday after he was sent home Claimant responded:

The [supervisor] [J]oe told me not to come back to work unless [I] completely changed my opinion of everything — [I] was told not to come back to work unless [I] completely stop talking about what was happening!.]

C.R. Item No. 4 at 2 (emphasis added). Claimant’s insistence, both before and at the hearing, that Employer expected him to change his "opinion of everything” is directly contrary to the majority’s assertion that ”[t]here is nothing in Claimant’s testimony or the record to show that Employer objected to Claimant merely having these particular beliefs, or that his job was in jeopardy for that reason." Majority op. at 613 (emphasis original).

. Mathis v. Unemployment Compensation Board of Review, 64 A.3d 293 (Pa.Cmwlth.2013), on which the majority relies as "controlling,” is distinguishable. In that case, based upon an examination of the entire record, this Court concluded there was "substantial evidence, in the form of testimony from both Employer and from Claimant himself, ... that on January 23, 2012 Employer in fact offered Claimant a real choice between two alternatives: he could either wear the ID badge as required and continue his employment, or he could leave, and therefore end the work relationship, and Claimant chose to leave.” Id. at 299 (emphasis original). There was no conflict in the evidence about the nature of the choice given to the claimant, and the choice was legitimate: follow the dress code if you want to work.

Here, by contrast, there was a conflict in the evidence about the nature of the choice given Claimant. The only evidence to support Employer’s version was Employer's questionnaire, a hearsay document, submitted to the Department in advance of the hearing. Claimant’s unrebutted testimony was that he was presented with a Hobson’s choice of either changing his world view or not returning to work. Stated another way, Claimant believed he was not able to return to work "because he was asked to do something that he felt was impossible for him to do.” Claimant's Brief at 14.