Castro v. Sec. Assurance Mgmt.

Decision Date26 May 2011
Docket NumberNo. 09–AA–807.,09–AA–807.
PartiesHernan B. CASTRO, Petitioner,v.SECURITY ASSURANCE MANAGEMENT, INCORPORATED, Respondent.
CourtD.C. Court of Appeals

OPINION TEXT STARTS HERE

Hernan B. Castro, pro se.No brief was filed and no appearance was entered on behalf of respondent.Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.PER CURIAM:

Hernan D. Castro has asked this court to review an order of an Administrative Law Judge (ALJ) of the Office of Administrative Hearings (OAH), issued on June 18, 2009, denying Castro's claim for unemployment compensation. The ALJ found that Castro's employer, Security Assurance Management, Inc. (Security), did not terminate Castro's employment; that both before and after October 26, 2008, Castro's last day of work for Security, Castro had declined work offered to him by his employer; and that because Castro had left his employment voluntarily, he was not entitled to compensation. The ALJ's order reversed an earlier decision by a claims examiner of the District of Columbia Department of Employment Services (DOES), in which the examiner held that Castro had in fact been laid off for lack of work and that he was therefore eligible to receive benefits.

Before this court, Castro first contends that the ALJ abused his discretion in declining to issue a subpoena for a proposed witness. He next asserts, in part on the basis of certain documentary evidence which was not introduced before the ALJ, which is not a part of the administrative record, but which Castro nevertheless included, without objection, in an Appendix to his brief, that the ALJ erred in finding that Castro was not terminated by Security and is therefore ineligible for unemployment compensation.

We conclude, even assuming, solely for the sake of argument, that the requested subpoena should have been issued, that any error in that regard was harmless. We also hold, for the reasons stated in the concurring opinion, that the ALJ's finding that Security did not terminate Castro is supported by substantial evidence and that Castro's Appendix, not being a part of the administrative record, is not properly before us. Accordingly, we affirm. 1 SCHWELB, Senior Judge, concurring in the judgment:

I agree with the court that the decision of the OAH is supported by substantial evidence in the record and that it should be affirmed. In my opinion, however, two of the issues, one relating to the denial of Castro's motion for a subpoena, and the other concerning Castro's unorthodox (but unopposed) Appendix,2 warrant more detailed discussion. Before reaching these issues, I set forth in greater detail the context in which they arise.

I.FACTUAL AND PROCEDURAL BACKGROUND

In April, 2008, Castro was hired by Security as a Special Police Officer. In late June of that year, Castro was granted a leave of absence to visit his ill father in Peru. He returned to his home in Annandale, Virginia in late September of that year, and he resumed his employment with Security shortly thereafter.

The parties are in agreement that upon his return to the area, Castro worked for two or three days at a warehouse in northeast Washington, filling in for a vacationing employee named Officer McCullen Pitts. The precise dates of this assignment are unclear. Carlos A. Martinez, the Operations Manager for Security, testified that Castro “had an issue with” one of the employees at the warehouse, and that the client asked Security “not to have him back there.” Accordingly, some brief period later, Castro was assigned to the Embassy of Saudi Arabia to replace an officer named Charles Arnewt, who was then on compassionate leave for two weeks on account of the death of his daughter.

Between October 13 and October 26, Castro worked at the Saudi Embassy, but the accounts of the two parties diverge as to exactly what occurred. Both Martinez and Nathan S. Rudolph,3 Castro's immediate supervisor at Security, testified that during the second week of this period, Castro stated that he would be unable, on several days, to work the hours requested of him because these hours would conflict with his (unspecified) other job. According to Castro, on the other hand, he worked the full two weeks at the Saudi Embassy, and he did not have any other employment at that time. Castro testified that the sole occasion on which he turned down work occurred before he was assigned to the Saudi Embassy, and that it involved a last-minute request by Rudolph that Castro work at the Embassy of Qatar for a single night because another employee had failed to show up.4

The parties also gave conflicting versions of what happened after October 26, which was Castro's last day of work at the Saudi Embassy. Martinez and Rudolph both testified that Rudolph called Castro twice during the week of October 27 to offer him further work at the Saudi Embassy 5 and that Castro “said he couldn't do it.” Martinez added that

after we call a person, he doesn't respond, and, in addition, he doesn't even give us notice that hehe cannot do our full-time assignment, you know, we didn't call him any more and he didn't call us any more either.(Emphasis added.) Martinez indicated that we also [were] upset [with Castro] over these issues,” but that nevertheless we're still open to give him employment.”

According to Castro, on the other hand, Rudolph told him ahead of time that October 26 would be his last day of work at the Saudi Embassy, and that he would be placed “on call” thereafter. Castro testified that he made numerous calls to Security and to Martinez in the days following the completion of two weeks at the Saudi Embassy, that he left several messages, but that [n]obody called me, [n]obody at all.... I can ensure [sic] 6 my phone company listing record, [if] you want.” It is this telephone company document that Castro has placed in his pro se Appendix, which is not a part of the administrative record, but on which Castro seeks to rely in this court to secure reversal of the ALJ's decision.

Crediting Security's witnesses but not Castro with respect to the principal disputed issues of fact, the ALJ ruled in Security's favor. After accurately summarizing the applicable law,7 the ALJ concluded:

Employer has met its burden of demonstrating that Claimant was not laid off for lack of work. The evidence of record demonstrates that in October 2008, after training Claimant on the job, Employer twice offered Claimant job assignments to work at the Embassy of Saudi Arabia, and that twice Claimant declined the assignments. On at least one job assignment, i.e., for the period Tuesday, October 21, 2008, through Friday, October 24, 2008, Claimant told Employer that he could not work at the Embassy of Saudi Arabia because he had another job. The evidence further demonstrates that around the last week of October 2008, Employer offered Claimant a job assignment to work at a building located at 1627 K Street, NW, Washington, D.C., and that Claimant declined that job assignment. The evidence demonstrates that at no time was Claimant laid off for lack of work, and that Employer did not terminate Claimant's employment.

At the hearing, Claimant testified that his last day of work at the Embassy of Saudi Arabia was October 26, 2008, and that at that time Mr. Rudolph told Claimant that he would be put on call. Claimant further testified that no more job assignments were offered to him after he finished his assignment at the Embassy of Saudi Arabia. I do not find Claimant's assertions credible for the following reasons. First, Mr. Rudolph credibly testified that he did not tell Claimant that his last day of work at the Embassy of Saudi Arabia would be October 26, 2008. Second, both Mr. Martinez and Mr. Rudolph testified in a credible manner that Claimant declined work at the Embassy of Saudi Arabia on two occasions in October 2008. Third, the evidence shows that, after Claimant worked at the Embassy of Saudi Arabia on Sunday, October 26, 2008, Claimant was offered, on or around the last week in October 2008, a job assignment to work at a building located at 1627 K Street, NW, Washington, D.C. Claimant declined the job assignment.

For the foregoing reasons, I find that Employer has met its burden of proving, by a preponderance of the evidence, that Claimant declined job assignments from Employer, and was not laid off for lack of work. Accordingly, the Claims Examiner's Determination is reversed. D.C. Official Code § 51–111(e); OAH Rule 2820.3. Claimant is disqualified from receiving unemployment compensation benefits.

II.CASTRO'S MOTION FOR A SUBPOENA

Castro contends that the ALJ erred by denying Castro's request for a subpoena to Charles Arnewt. I agree with the court that reversal is not warranted on that ground. In my view, however, the issue warrants further discussion, for the ALJ's somewhat mechanical construction of the applicable regulation, if followed, might well preclude claimants for unemployment compensation, most of whom appear pro se and lack legal sophistication, from introducing probative evidence supporting their claims.

Castro, who was representing himself at the time,8 filed the motion for a subpoena for Arnewt pro se. Apparently attempting to comply with the Scheduling Order, which is not in the record but which required a party requesting a subpoena to explain the relevance of the proposed witness' testimony,9 Castro wrote that Arnewt's testimony would be relevant “because I replace[d] him for 2 weeks because he was on leave of [absence] for [a] family situation and when he [got] back to work, I had no site work to go, being placed on call by the manager, Mr. Nathan Rudolph.” (Emphasis in original). The ALJ, however, was not persuaded:

Claimant's subpoena request fails to comply with the Scheduling Order and OAH Rule 2822.2, in that the request does not explain why the testimony of the proposed witness is relevant. Claimant states that Mr. Arnewt will...

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