Bowen v. D.C. Dept. of Employment Services, 83-506.

• Decision Date: 09 January 1985
• Docket Number: No. 83-506.,83-506.
• Citation: 486 A.2d 694
• Parties: Gilbert S. BOWEN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

486 A.2d 694

Gilbert S. BOWEN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 83-506.

District of Columbia Court of Appeals.

Submitted November 26, 1984.

Decided January 9, 1985.

Harry Heller, Washington, D.C., was on brief for petitioner.

N. Denise Wilson-Taylor, Washington, D.C., was on brief for respondent. Grace Lockett Rosner, Washington, D.C., also entered an appearance for respondent.

Before MACK and TERRY, Associate Judges, and PAIR, Associate Judge, Retired.

TERRY, Associate Judge:

Petitioner asks us to reverse a decision by the Department of Employment Services that he is ineligible for unemployment benefits. We reject all his arguments and affirm the decision under review.

I

Petitioner resigned from his position as a program auditor with the General Accounting Office (GAO) on December 10, 1982, and applied for unemployment compensation three days later. His application included a signed statement that he "voluntarily left [his] employment there [at GAO] due to medical [and] personal reasons." The medical reasons involved foot and back problems of undetermined origin which, he said, were "aggravate[d]" by his job. He did not elaborate on the "personal" reasons, but the claims deputy found that they were based on his failure to gain a promotion. Concluding that petitioner had resigned voluntarily without good cause connected with his work, she ruled him ineligible for benefits.

When petitioner appealed from the deputy's ruling, a hearing was held before an appeals examiner.¹ Petitioner testified that he resigned because his supervisor told him in September 1982 that he "was going to be discharged." He and his supervisor worked out an agreement whereby he would immediately submit a written resignation, to take effect in December. He admitted, however, that the supervisor did not say when he would be fired if he did not resign: "There was no time frame." Questioned about his signed statement that he had quit voluntarily, petitioner conceded that he could have continued working at GAO, but he implied that this option would have been unpalatable: "I had been with GAO for four years and . . . I had received no promotions, no step increases and . . . in order to be transferred from New York State to Washington I had to file a . . . discrimination complaint." He also confimred that he had a medical reason for resigning, but he admitted that no doctor had advised him to quit work; his efforts to resign on the ground of disability had been unsuccessful. Further, he acknowledged that his "personal" reason for resigning was simply the fact that he had failed to receive either a promotion or a salary increase.

The appeals examiner found that petitioner had resigned "after being told that he faced involuntary separation at some unspecified future date if he did not do so. He was not threatened with imminent discharge at the time of his resignation." The examiner also found that petitioner's resignation "was substantially influenced by medical problems and failure to receive a promotion," but that he "was not advised to leave his job for reasons of health." Thus the examiner concluded that petitioner had voluntarily resigned from his job without good cause:

Although he understood that he faced termination proceedings at some indefinite future time, he was in no immediate danger of discharge at the time of his resignation, nor was he medically advised to leave his job for reasons of health. Under the circumstances, it would have been more prudent for him to retain the security of the job he had [as] long as he could or until he found a better one.

The claims deputy's denial of unemployment benefits was therefore affirmed.

Petitioner appealed to the Office of Appeals and Review (OAR). With his appeal he enclosed a letter from the GAO's regional manager stating that petitioner "had been advised his performance was not of an acceptable level and that if his performance continued at that level, management would begin termination action. After having been informed of this situation, [petitioner] signed a resignation. . . ." When the OAR proposed to affirm the decision of the appeals examiner, petitioner again enclosed the same letter with his objections to the proposed ruling. The OAR then issued a final decision affirming the appeals examiner's determination, noting that petitioner's objections had been considered.

In this court petitioner contends that the presumption that his resignation was involuntary was not overcome, that in fact it was involuntary, and that the appeals examiner erred in concluding that it would have been "more prudent for him to retain" his job until he found a new one. All of these arguments boil down to a challenge to the sufficiency of the evidence on which the Department based its decision. The only question presented to the court, then, is a familiar one: whether the decision was supported by substantial evidence.

II

Appellant's claim for benefits is governed by section 10(a) of the District of Columbia Unemployment Compensation Act, D.C. Code § 46-111(a) (1981), as amended by the Unemployment Trust Fund Revenue and Conformity Act of 1982, D.C. Law 4-147, § 2(h), 29 D.C.Reg. 3347, 3355-56. That section, at the time of petitioner's resignation, provided in pertinent part:

[A]ny individual who left his most recent work voluntarily without good cause connected with the work, as determined under duly prescribed regulations, shall not be eligible for benefits until he has been employed in each of four subsequent weeks (whether or not consecutive) and has earned remuneration equal to not less than four times the weekly benefit amount to which he would be entitled pursuant to [D.C. Code § 46-108(b) (1981) J.

This provision, like its successors,² effectively prevents those who leave their work voluntarily with no good job-related reason from ever collecting unemployment benefits during the course of that unemployment. See Brice v. District of Columbia Department of Employment Services, 472 A.2d 406 (D.C.1984).

Under applicable regulations, one who claims unemployment benefits is presumed to have left his job involuntarily "unless the claimant acknowledges that the leaving was voluntary or the employer presents evidence sufficient to support a finding by the [Department] that the leaving was voluntary." 18 DCRR § 4612.3 (1982). Further, a finding of voluntariness depends upon evidence "that the leaving was voluntary in fact, within the ordinary meaning of the word `voluntary.'" 18 DCRR § 4612.2 (1982) (emphasis in original). If "the employee's action was compelled by the employer rather than based on the employee's volition," it was not taken voluntarily. Hockaday v. D.C. Department of Employment Services, 443 A.2d 8, 10 (D.C.1982). Thus this court has reversed the denial of benefits to claimants who resigned in the face of imminent discharge. Carpenter v. District Unemployment Compensation Board, 409 A.2d 175 (D.C.1979); Thomas v. District of Columbia Department of Labor, 409 A.2d 164 (D.C.1979). On the other hand, if an employee's resignation "was the product of his own volition and not compelled by his employer, it was voluntary within the meaning of the statute and the regulations." Gopstein v. District of Columbia Department of Employment Services, 479 A.2d 1278, 1280 (D.C.1984) (citation omitted).

The most imposing evidence that petitioner's resignation was voluntary in fact is the written statement he made in his application for unemployment benefits. On that application he wrote that he had resigned "voluntarily" for "medical [and] personal reasons." He did not even suggest that he had been ordered to resign. While the mere use of the word "voluntarily" is not very probative — even a truly forced resignation is voluntary insofar as the act of termination is that of the employee and not the employer — the reasons he gave for his resignation strongly support a finding of voluntariness.

Petitioner argues, however, that he repudiated the statement in his application when he testified before the appeals examiner and that, in any event, he did not appreciate its legal significance when he made it; thus, he maintains, he cannot be said to have "acknowledged" that he resigned voluntarily. While this argument raises an interesting question as to the meaning of the word "acknowledges" in 18 DCRR § 4612.3, it can hardly support the conclusion that his statement should be disregarded. Ignorance of the legal significance of such a statement is not a bar to its use against the person who made it. While petitioner was free to contradict his earlier statement in his testimony before the appeals examiner, as he did, the appeals examiner was entitled to consider both in making his findings.³ Otherwise, the interview with the claims deputy would be no more than a dry run for claimants, allowing them to refashion their stories...