Green v. District of Columbia Dept. of Emp., 84-1364.

CourtCourt of Appeals of Columbia District
Citation499 A.2d 870
Docket NumberNo. 84-1364.,84-1364.
Decision Date21 October 1985
499 A.2d 870
Randolph J. GREEN, Jr., Petitioner,
No. 84-1364.
District of Columbia Court of Appeals.
Argued July 9, 1985.
Decided October 21, 1985.

Page 871

James E. Turner, Washington, D.C., for petitioner.

N. Denise Wilson-Taylor, Washington, D.C., for respondent.

Before NEBEKER, FERREN, and BELSON, Associate Judges.

BELSON, Associate Judge:

Petitioner seeks review of the decision of the District of Columbia Department of Employment Services (DOES) disqualifying him from receiving unemployment compensation on the ground that he had left his most recent work voluntarily without good cause connected with the work. D.C.Code § 46-111(a) (1984 Supp.). The record bears out petitioner's assertion that DOES misallocated to him the burden of proof on the question of the voluntariness of his leaving. We rule that the burden of proving voluntariness, in cases where the issue is disputed, resides with the employer, not with the claimant. Accordingly, we reverse and remand for further proceedings.

Page 872


Petitioner resigned his position as a stock clerk with the Hecht Company in May 1984, ending 3 years of employment there. In his Termination Report/Exit Interview the reasons he stated for his termination were that he had been "[v]ery unhappy, not treated right in so many ways, no salary increase for last 8 months, no future." Shortly thereafter he applied to DOES for unemployment compensation. On his application he indicated that he resigned because he had been dissatisfied with his job. The Claims Examiner determined that petitioner's resignation had been voluntary and without good cause, and disqualified him from benefits. When he appealed that decision and requested a hearing, petitioner indicated for the first time that he had quit because he was going to be fired.

A hearing was then conducted by an Appeals Examiner. In attendance were petitioner and Ms. Pat Wright, the employer's personnel director. Ms. Wright introduced documentary evidence showing that during the 5 months prior to his resignation petitioner had been admonished four times for absenteeism, tardiness, and leaving work without authorization. After the second incident petitioner had been placed on 30-day probation; after the third he had been put on "final warning"; and after the fourth he had been informed that "If this happens again termination will be recommended." Wright testified that, on the day petitioner resigned, his supervisor was preparing papers on yet another charge, again concerning petitioner's attendance and punctuality.

Petitioner insisted repeatedly at the hearing that he did not leave voluntarily but rather quit because he was about to be fired. He testified that his supervisor told him to resign first before he got fired because a dismissal would look bad on his record. Petitioner proceeded to the Personnel Office and there asked Ms. Wright whether he was "on the verge of getting fired." He testified that she replied that "she couldn't tell me nothing right then." She explained, he said, that a final decision about his dismissal was for her to make. Petitioner then asked her whether or not he should resign. Wright responded that it was his personal decision to make as an employee and that she could not steer him in one direction or another on a voluntary resignation. Petitioner then went back and inquired of his supervisor, who told him that he "was on the verge of getting fired." With that, petitioner resigned. As he signed the termination papers, petitioner stated to Wright that "I want to resign before you fire me." Petitioner subsequently sought, without success, to withdraw his resignation.

Wright's account of her conversation with petitioner on the day of his termination differed from his in two crucial respects. Contrary to petitioner's express denial on this matter, Wright testified that, in reply to petitioner's question whether he was about to be fired, "I said a decision has not been made on that at this point. Reminding you that were you [sic] on termination notice of final warning." Wright further testified that, when petitioner asked whether or not he should resign, she told him that "considering your length of services [sic] with the company . . . you should give this serious consideration." This, too, petitioner denied.

Upon cross-examination by Wright at the hearing, petitioner recounted that during the month prior to his termination he had held several conversations with Wright in her office. Petitioner had been unhappy about his position and had requested a transfer to another department. Wright counseled him that promotions and transfers were based on performance and that his past record was not such as to permit consideration of petitioner for a transfer. Wright explained to him, however, that if he performed well and was dependable and prompt he would be considered in the future for a transfer.

The Appeals Examiner affirmed the decision of the Claims Examiner disqualifying petitioner from benefits on the ground that

Page 873

he voluntarily quit his job without good cause connected with the work. The Appeals Examiner concluded that petitioner

was not terminated by employer, but elected to voluntarily resign in light of the poor work record that he had recently developed, and with an eye towards avoiding having a negative employment record, should he have been fired. However, there is no firm indication in the record that he was in fact going to be fired, although his performance was less than expected.

The Office of Appeals and Review affirmed, stating: "As of the time of claimant's leaving, there was no showing of any imminence of termination. Claimant acted prematurely. Further, there was no showing claimant was in a position of having to quit or risk being fired."


Petitioner assigns as error the statement by the Appeals Examiner, made at the outset of the hearing, that "the burden of proof in voluntary quit cases rests solely on the claimant . . ." Petitioner contends that this statement constituted a misallocation of the burden of proof in contravention of the applicable DOES regulation which provides that

A leaving shall be presumed to be involuntary unless the claimant acknowledges that the leaving was voluntary or the employer presents evidence sufficient to support a finding by the Director that the leaving was voluntary.

18 DCRR § 4612.3 (1983).

The term "burden of proof" is ambiguous, encompassing two separate burdens: the burden of production and the burden of persuasion. See generally McCORMICK ON EVIDENCE § 336 (E. Cleary 3d ed. 1984); 9 J. Wigmore, EVIDENCE §§ 2485-2488 (Chadbourn rev. 1981). The former refers to the burden of coming forward with satisfactory evidence of a particular fact in issue. McCORMICK, supra, at § 336. The latter constitutes the burden of persuading the trier of fact that the alleged fact is true. Id. The phrase "burden of proof" is generally interpreted to mean burden of persuasion. See People's Counsel v. Public Service Commission, 474 A.2d 835, 837 n. 5 (D.C. 1984); see also Nader v. de Toledano, 408 A.2d 31, 48 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). We read the Appeals Examiner's remarks to have referred to the burden of persuasion.

In our leading case on the issue of voluntary leaving, Thomas v. District of Columbia Department of Labor, 409 A.2d 164 (D.C. 1979), we stated unequivocally that a claimant does not have the burden of proving involuntariness. Id. at 174. The burden, rather, lies with the employer to prove the leaving was voluntary where voluntariness is contested. The DOES regulation in effect at the time Thomas was decided, predecessor of the present 18 DCRR § 4612.3, supra, provided that "Ordinarily a leaving will be presumed to be involuntary on the part of the claimant unless the facts clearly indicate otherwise." 18 DCRR § 301.1(a) (1970) (emphasis in original). Although the language of the current regulation differs somewhat from that of the old, we discern no departure sufficient to compel a contrary conclusion about the allocation of the burden of proof.1

Page 874

The regulatory presumption that a claimant's separation from work was involuntary is a rebuttable one. Perkins v. District of Columbia Department of Employment Services, 482 A.2d 401, 402 (D.C. 1984); Harris v. District of Columbia Department of Employment Services, 476 A.2d 1111, 1112-13 (D.C.) (per curiam), cert. denied, ___ U.S. ___, 105 S.Ct. 200, 83 L.Ed.2d 132 (1984); Hockaday v. District of Columbia Department of Employment Services, 443 A.2d 8, 10 (D.C. 1982); see Carpenter v. District Unemployment Compensation Board, 409 A.2d 175, 178 (D.C. 1979); Thomas, 409 A.2d at 173-74. This simply means that the party against whom the presumption operates, viz. the claimant's former employer, may introduce proof in contradiction. McCORMICK, supra, § 342. However, under the so-called "bursting bubble" theory of presumptions, once the opponent offers evidence against the fact presumed, the presumption vanishes. Davis v. Altmann, 492 A.2d 884, 886 (D.C. 1985); Legille v. Dann, 178 U.S.App. D.C. 78, 82-84, 544 F.2d 1, 5-7 (1976); see generally McCORMICk, supra, § 344(A); 9 WIGMORE, supra, §§ 2487, 2491, 2493a. In other words, the presumption places on the opponent only the burden of production of evidence. This theory had been described as being "the prevailing view, to which jurists preponderantly have subscribed." Legille, 178 U.S.App.D.C. at 83, 544 F.2d at 6.

Nevertheless, the courts of this jurisdiction do recognize exceptions to the "bursting bubble" theory. In Altmann, we recently observed that "`some presumptions are founded in part upon exceptionally strong and visible policies, which have been said to persist despite proof rebutting the factual basis for the presumption.'" 492 A.2d at 886 (quoting Legille, 178 U.S.App. D.C. at 84...

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