Carpenter v. District Unemployment Comp. Board, 13136.

• Decision Date: 13 November 1979
• Docket Number: No. 13136.,13136.
• Citation: 409 A.2d 175
• Parties: Yvonne CARPENTER, Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.
• Court: D.C. Court of Appeals

Page 175

409 A.2d 175

Yvonne CARPENTER, Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.

No. 13136.

District of Columbia Court of Appeals.

Argued November 28, 1978.

Decided November 13, 1979.

Dalton Howard, Washington, D. C., with whom Wanda D. Foster, Washington, D. C., was on the brief, for petitioner.

Norma Denise Wilson, Washington, D. C., with whom Russell L. Carter and Bill L. Smith, Washington, D. C., were on the brief, for respondent.

Before GALLAGHER and HARRIS, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:

This petition for review¹ challenges a decision of the District Unemployment Compensation Board² (the Board) which disqualified the petitioner from unemployment benefits for six weeks. The disqualification was based upon a determination that petitioner on June 30, 1977, voluntarily resigned her position at the Federal Trade Commission (the F.T.C.) without good cause.³ We conclude from our review of the record that the Board's decision is without support in substantial evidence and reverse.

The material facts are not in dispute. Petitioner, the mother of three children, had been employed at the F.T.C. for about eight years. On June 30, 1977, she resigned and on July 7, 1977, filed a claim for unemployment benefits. In processing the claim several forms were completed, presumably by a Claims Deputy. Although to some extent illegible, the forms contain statements attributed to petitioner, some written above and some below her signature which appears at various places on the forms. As nearly as can be determined, the statements were to the effect that (1) petitioner "voluntarily resigned in lieu of termination due to absenteeism", (2) she resigned "because my child is sick and I need to be at home", and (3) "I am able, available, and actively seeking full time work." A copy of the claim form was sent to F.T.C. requesting as provided by 5 U.S.C. § 8506(a), information respecting petitioner's termination of her federal employment.⁴ There is, however, no showing in the record that F.T.C. ever responded to the request as provided by 20 C.F.R. § 609. Nor is there any showing that F.T.C. at any time put in issue petitioner's claim for benefits. Cf. Salas v. District Unemployment Compensation Board, D.C.App., 387 A.2d 1107 (1978); Smith v. District Unemployment Compensation Board, 140 U.S.App.D.C. 361, 367, 435 F.2d 433, 439 (1970).

Nevertheless the Claims Deputy determined that petitioner resigned her job for personal reasons saying: "All prudent measures to maintain work were not taken. Good cause for leaving full time available work has not been established. You are therefore disqualified for the period shown."

Petitioner appealed to the Board and pursuant to D.C.Code 1973, § 46-311(c) an appeals examiner conducted a hearing⁵ at which there was testimony by petitioner in substance as follows.

Commencing in March 1977, petitioner was confronted with a series of family problems which required absences from her employment. Her youngest child, a boy, developed bronchial and eye infections. Because petitioner was the only adult in her household, she frequently took leave to take the child for medical treatment. Later it became necessary to have the child hospitalized for surgery involving the removal of an eye. After the child was discharged from the hospital, petitioner took additional leave, when required, to care for him and to return him to the hospital for out-patient treatment. At some time during this period, it was reported to petitioner that the older children, two girls, were not attending school regularly. Aware of her responsibility to maintain the girls' attendance in school, petitioner again took leave so as to confer with school authorities.

Petitioner's absences from her work were, with a few exceptions, covered by authorized leave. On occasions when an emergency situation arose in her home she was absent without leave.⁶ For some time the absences were indulged, no doubt because petitioner's supervisor was informed of the nature of the family problems. However, when the absences continued the supervisor began to harass petitioner and finally, according to the hearing transcript, the following transpired:

CLAIMANT: Well on June the 29th, Mr: Jack Odom and Miss Muriel Randall called me in the office — in Jack Odom's office for a conference, and they told me that I was given an ultimatum either to be fired or resign. And I told them, that you know — that they couldn't do this. Cause I wasn't going to resign at that time. And then they said that they had already taken action with the personnel office and it was already in effect that they were going to fire me, so at that time I left for the day, and the next day I went and talked to. . . .

* * * * * *

And I asked him was — you know was it possible that they could do this to me, you know just give me an ultimatum to resign or be fired. So he told me yeh that they already — he had talked to Mr. Odom and they had already made arrangement for me to be fired. So he said — but he told me, said now it would look better on your part if you just — by your son being sick, if you'd just go ahead and say — if you'd resign because your son was in the hospital and you needed some time to be with him. He said because you . . . to find a better job, cause if you be fired you won't you know be able to get a job. So I said okay then, so I said okay I'll just go ahead and resign. . . .

The Board's appeals examiner found the facts to be substantially as set forth above and made what he termed a "conclusion", which reads:

Conclusion: For the purpose of benefits, it is incumbent on the claimant to justify resigning from suitable, full-time work. In this case, the claimant acknowledged that she resigned from her employment in lieu of being discharged for absenteeism. In justification of her unsatisfactory attendance, the claimant acknowledged that she was repeatedly absent from her work because her children were either ill or experiencing difficulty in school.

Although, it is presumed that a child's illness is sufficient to justify being absent from work; the other matters alleged by the claimant are insufficient to sustain such a presumption. Inasmuch as the claimant acknowledged having notice that the employer would no longer approve her absences, it was incumbent on the claimant to establish that the school related difficulties were compelling in nature and required that she be absent from her work. In the absence of substantive evidence, it will not be presumed that the claimant's absences were justified.

* * * * * *

Thus, the Examiner finds that the claimant resigned in lieu of being discharged for absenteeism. Resigning in lieu of discharge is not good cause to quit for the purpose of benefits.

The Board, "find[ing] no error as to either fact or law," affirmed the determination of the appeals examiner.

In the factual setting disclosed by this record, the function of the Board's appeals examiner was to determine from evidence adduced at the hearing whether petitioner's resignation was voluntary and without good cause and, if not, whether she had been guilty of disqualifying misconduct.⁷ See Thomas v. District of...