Berkley v. D.C. Transit, Inc.

• Decision Date: 19 June 2008
• Docket Number: No. 07-AA-297.,07-AA-297.
• Citation: 950 A.2d 749
• Parties: Ruth E. BERKLEY, Petitioner, v. D.C. TRANSIT, INC., Respondent.
• Court: D.C. Court of Appeals

950 A.2d 749

Ruth E. BERKLEY, Petitioner, v. D.C. TRANSIT, INC., Respondent.

No. 07-AA-297.

District of Columbia Court of Appeals.

Submitted May 22, 2008.

Decided June 19, 2008.

Barbara McDowell and Eric Angel, Legal Aid Society of the District of Columbia, for petitioner.¹

Before REID and FISHER, Associate Judges, and NEBEKER, Senior Judge.

REID, Associate Judge:

Petitioner, Ruth E. Berkley, seeks review of a decision of the Office of Administrative Hearings ("OAH") affirming a determination of the District of Columbia Department of Employment Services ("DOES") disqualifying her from receiving unemployment compensation benefits. Ms. Berkley, who proceeded pro se before the OAH, claims that the Administrative Law Judge ("ALJ") inadequately and erroneously explained the employer's burden of proof, and improperly suggested that she had to testify to satisfy her "burden," even though the employer did not appear at the hearing and offered no proof as to whether she voluntarily quit her job. She also claims that OAH improperly analyzed the "voluntary leaving" or "voluntary quit" issue, and further contends that the record does not support a finding that she did not have good cause to leave her position. We reverse OAH's decision and remand this matter to OAH for findings and conclusions not inconsistent with this opinion.

FACTUAL SUMMARY

The record shows that petitioner, Ruth E. Berkley, filed a request with DOES for unemployment benefits. On February 22, 2007, DOES issued its written notice denying benefits.² Four days later, Ms. Berkley appealed the claims examiner's determination to OAH.³ As "reasons for appeal," she stated: "[The owner of D.C. Transit and his partner] gave me a bounce[d] check, plu[s] he was only giv[ing] me (4) four hrs. or no work at all[;] shudles [sic] was getting short." OAH scheduled Ms. Berkley's hearing for March 16, 2007. On that day, the respondent did not appear. Ms. Berkley was present, but was not represented by counsel.

At the beginning of the hearing, the ALJ informed Ms. Berkley that there were two issues to be addressed in the hearing: (1) jurisdiction, or "whether this Administrative Court has the power and authority to hear this case today"; and (2) "whether [Ms. Berkley] voluntarily left [her] job, and if ... so, [whether she had] good cause connected with the work." As to the first issue, the ALJ informed Ms. Berkley that her appeal was timely.

With respect to the second issue, the ALJ advised Ms. Berkley that the general rule is an unemployed individual is eligible for benefits, unless the "[c]laimant voluntarily left work."⁴ He explained that "if the [c]laimant did voluntarily leave work, the [c]laimant can come forward and explain the reasons why she left work, and if they are good reasons ... connected with the job itself, then that overcomes the exception and the [c]laimant will qualify for benefits." The ALJ acknowledged that the respondent, D.C. Transit, was not present and then declared:

It's initially the [e]mployer's burden to establish that the [c]laimant voluntarily left work. However, you have the right to testify today, although you're not obliged to do so. But if you choose to testify, you can meet your burden of explaining if you did, in fact, voluntarily quit work, that you did it for a good reason connected with work.

Immediately following the court's declaration, the following exchange occurred.

Ms. Berkley: Yes, sir.

ALJ: Okay. Do you have any questions about — so far for the court?

Ms. Berkley: No; I guess I'm going to go ahead and state my case.

ALJ: Okay. Well, the way we'll conduct the proceeding today is, you will be provided an opportunity to state your case. You can present any relevant testimony.... Nothing that has been provided to the DOES is part of the record. And I can't use anything other than what you say today and the documents you admit into the record to form my opinion. Your testimony will be under oath, and I will be able to ask you questions.

Ms. Berkley: Okay.

ALJ: The reason why you need to present all your evidence today and documents is because the Office of Administrative Hearings is an independent agency, and we do not have the record from the DOES in front of us today. Are you ready to begin?

Ms. Berkley: Yes, sir.

The ALJ then posed questions to Ms. Berkley, and she responded. Her responses provided the following information. Ms. Berkley, who has a disability⁵ and received disability benefits from the Social Security Administration, obtained employment with D.C. Transit, Inc.⁶ through the "Ticket to Work" program. She commenced her duties with the respondent on June 19, 2006, as a driver's assistant.⁷ She worked full-time, usually from 6:00 a.m. to 3:00 p.m., or sometimes longer, until the first week of August when she was involved in a verbal exchange with a company dispatcher over a client who had been taken to the Washington Hospital Center, but was not picked up for the return trip. Ms. Berkley had informed the dispatcher that she and the driver had to pick up children in Silver Spring, Maryland, and had to take them to a doctor's appointment, and hence would not be able to make the pick up time for the return trip from the hospital. Following this incident, Ms. Berkley did not receive assignments for approximately two weeks.⁸

Around the first of September, Ms. Berkley returned to a regular work schedule. However, she testified that "some days ... he didn't have no where for us to go." On one occasion, she accompanied "some disabled kids (clients)" to Ocean City. But, her hours were curtailed. She would, for example, be assigned or paid for only several hours of work and then would be sent home. In addition, Ms. Berkley was transferred to another driver who would make unscheduled stops and run personal errands; also, there was, generally, "a whole lot of carrying on" with the company, and the company's business was declining. "[P]eople started leaving and everything." Ms. Berkley apparently worked some days in October: "we were just driving and we was working and we was getting off — we was getting off at 9:00 and 10:00 at night, and all of a sudden they had this meeting ... [.][I]t was November 5th to November 11th."

Earlier, the ALJ had inquired, "Can you explain to me what caused the separation from D.C. Transit?" Ms. Berkley responded: "He won't give — he won't giving me no work, ... he didn't have no work for me." When the ALJ asked Ms. Berkley to "[e]xplain that a little bit, because I think that's the key issue in the case," Ms. Berkley said that around November 5 to 11, the company held a meeting "because people weren't getting paid when they supposed to be getting paid," and she "wasn't making no money." Around November 22, 2006, Ms. Berkley overheard the owner of D.C. Transit informing a lady about a job opportunity at Independent Living, an assisted living company. The lady declined to pursue the job, but Ms. Berkley asked the owner to take her to the job site for an interview.⁹ Mr. Johnson transported Ms Berkley to the interview on November 23. She was given a position. When the ALJ asked, "what's the connection with D.C. Transit and the Assisted Living," Ms. Berkley answered:

[D.C. Transit's owner] just said he met this lady, ... and that she needed somebody to work, and that they were paying $90 a day, and that you had to stay out there for a week, and it sounded all right, so I went on and took — took that position. And he took me out there for an interview.... [S]he gave me the job, and I started that Sunday, the 26th.

In response the ALJ asked: "And that was after you had left D.C. Transit?" Ms. Berkley answered: "Because he didn't have — he didn't have nothing else for me." However, in response to another question from the ALJ concerning whether her last day at D.C. Transit was November 19th, Ms. Berkley said, "Yeah, around November, between the 15th and the 19th ... [,][t]hat week of the 20th because we [ ] got our last check on the 24th." Ms. Berkley could not say whether the owner of D.C. Transit knew it was her last pay check, but again asserted that "he didn't have no work for me."¹⁰

In its final order OAH's ALJ stated, in part:

Claimant chose to testify in the absence of [e]mployer but her testimony was vague and at times confusing. She was unable to provide specific dates and did not offer any relevant documentation relating to the number of trips she had been assigned, the hours she was asked to work, or even whether her income dropped substantially prior to her leaving the job. It is clear however that she became generally dissatisfied with her job in that she did not like the new driver to whom she had been assigned and was not happy with the late hours she was working in November.

Employer did not appear at the hearing and thus presented no testimony or discussion to carry his burden of establishing that [c]laimant voluntarily left her job. Nonetheless, [c]laimant acknowledges that she voluntarily left her job for a new one and thus her testimony effectively proved [e]mployer's case on that point. 7 DCMR 311.3. However, [c]laimant failed to establish, as she is required to do, that she left her job for good cause connected with the work. 7 DCMR 311.4; Perkins v. D.C. Dep't of Employment Servs., 482 A.2d 401 (D.C. 1984). General dissatisfaction with the job is insufficient cause. 7 DCMR 311.6(e).

Further, based on the record as a whole, I find that [c]laimant's decision to leave her job in mid-November, 2006, was not the response of a "reasonable and prudent person in the job market." Gunty [v. Department of Employment Services], 524 A.2d [1192] at 1199 [(D.C. 1987)].

I have considered whether a reasonable employee in [c]laimant's position would not have done more to seek assistance from management to schedule trips at more convenient times and be assigned to another driver. See Freeman v. D.C. Dep't of Employment Servs., 568 A.2d 1091, 1093 (D.C.1990) (an...