Lott v. Washington Legal Clinic For The Homeless, 123120 DCCA, 18-AA-963

Docket Nº18-AA-963
Opinion JudgeWASHINGTON, SENIOR JUDGE
Party NameDea C. Lott, Petitioner, v. Washington Legal Clinic for the Homeless, Respondent.
AttorneyDea C. Lott, pro se. Mary Lenahan was on the brief for respondent. John Cartwright, admitted pro hac vice.
Judge PanelBefore Beckwith and McLeese, Associate Judges, and Washington, Senior Judge.
Case DateDecember 31, 2020

Dea C. Lott, Petitioner,

v.

Washington Legal Clinic for the Homeless, Respondent.

No. 18-AA-963

Court of Appeals of The District of Columbia

December 31, 2020

Argued January 16, 2020

Petition for Review of the District of Columbia Department of Employment Services (2018-DOES-853)

Dea C. Lott, pro se.

Mary Lenahan was on the brief for respondent. John Cartwright, admitted pro hac vice.

Before Beckwith and McLeese, Associate Judges, and Washington, Senior Judge.

WASHINGTON, SENIOR JUDGE

Petitioner, Dea Lott, has asked this court to review an order of an Administrative Law Judge (ALJ) of the District of Columbia Office of Administrative Hearings (OAH), denying Ms. Lott's claim for unemployment compensation. The ALJ determined that Ms. Lott left her job voluntarily and failed to meet her burden of demonstrating that her resignation was for good cause connected with the work. Finding no error, we affirm.

I.

Petitioner was employed as a staff attorney at the Washington Legal Clinic for the Homeless (the Legal Clinic), a non-profit legal services and advocacy organization, from July 2014 until April 30, 2018. The Legal Clinic does not have a traditional hierarchical structure; instead it has a flat structure with a group of staff attorneys led by an executive director, Patty Fugere. Petitioner asserts that beginning in early 2017 she was subjected to a series of incidents at the Legal Clinic which, when considered cumulatively, amounted to racial discrimination that would have caused a reasonable person in her position to resign.

The first of these incidents occurred in June 2017, when petitioner contends that a co-worker, Staff Attorney Scott McNeilly, reprimanded her in front of the Legal Clinic's Volunteer Coordinator, Kelsey Vaughn, thereby "undermin[ing]" petitioner's perceived authority over her. Petitioner believes race "might have influenced" Mr. McNeilly's decision to handle the situation as he did. After notifying Ms. Fugere of her concerns, petitioner met with Mr. McNeilly a second time, during which she "walked through [things] for him from [her] perspective," at which point Mr. McNeilly became upset and asked petitioner how she could believe his response was motivated by race. McNeilly later apologized to petitioner for becoming upset when she questioned him, explaining that at the time he "was angry that [she] had questioned [his] morality and . . . integrity" but "wanted to apologize . . . so that [they] could move forward."1 The second incident involved the delay by one month of an anti-racism training for Legal Clinic employees organized by petitioner. Petitioner alleged this delay was due to a "lack of mandate or direction from the Legal Clinic's management that . . . gave individual staff members the option to decline training dates for any reason." The third incident cited by petitioner involved efforts by the management of the Legal Clinic to repeatedly thwart her efforts to recruit and secure a partnership between the Legal Clinic and Unity Health Care in Anacostia, which petitioner again attributed to the "lack of mandate or direction by the Legal Clinic's management." Petitioner also expressed concern over heightened tensions between herself, Volunteer Coordinator Kelsey Vaughn, a Caucasian woman, and triage attorney Akela Crawford, an African American woman. Petitioner contends that the fact that she is an African American played a role in Ms. Vaughn's unprofessional treatment of her especially after she observed petitioner being reprimanded by Mr. McNeilly. Additionally, petitioner complained of the lack of an office policy governing promotions and lateral transfers at the Legal Clinic. Specifically, petitioner claims that she was overlooked for a lateral staff attorney position, for which she had expressed an interest, in favor of a white co-worker.

On April 13, 2018, petitioner submitted her letter of resignation to the Legal Clinic's executive director. In the letter, she questioned the commitment of the management and staff to their anti-racism efforts; suggested that she was not given due respect as a professional and seriously considered for opportunities for professional growth as part of the Legal Clinic; and stated that her "work at the Legal Clinic" was impacting her personal health, life, and happiness. Petitioner's resignation took effect on April 30, 2018.

Subsequently, petitioner filed a claim for unemployment benefits. The claim was denied by a Claims Examiner on April 29, 2018, on grounds that petitioner had voluntarily resigned from her place of employment. Petitioner sought review of the Claims Examiner's decision before an ALJ of the OAH who affirmed the Claim Examiner's decision, concluding petitioner voluntarily resigned from her position at the Legal Clinic and failed to demonstrate that her resignation was for good cause connected with the work. This appeal followed.

II.

Under District of Columbia law, it is presumed that an unemployed individual left work involuntarily and is eligible to receive unemployment benefits "'unless the claimant acknowledges that the leaving was voluntary or the employer presents evidence sufficient to support a finding . . . that the leaving was voluntary.'" Nwokwu v. Allied Barton Sec. Serv., 171 A.3d 576, 582 (D.C. 2017) (quoting 7 DCMR § 311.2-.3). An employer meets its burden of showing that an employee voluntarily resigned by demonstrating that the "employee affirmatively acted to end the employment relationship." Id. However, even if an employee voluntarily resigns, the employee is still eligible to receive unemployment insurance benefits if the employee can prove by a preponderance of the evidence that he or she left their most recent employment for good cause connected with the work. See Green v. District of Columbia Dep't of Emp't Servs., 499 A.2d 870, 877 (D.C. 1985) (internal citations omitted). This determination "is factual in nature, and turns on what a reasonable and prudent person in the labor market would do under similar circumstances." Consumer Action Network v. Tielman, 49 A.3d 1208, 1211 (D.C. 2012) (internal citation and quotation marks omitted).

This court reviews decisions of the OAH under the substantial evidence standard, and we must affirm an OAH decision when "(1) OAH made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) OAH's conclusions flow rationally from its findings of fact." Castro v. Security Assurance Mgmt., Inc., 20 A.3d 749, 756 (D.C. 2011) (Schwelb, J. concurring) (quoting Rodriguez v. Filene's Basement Inc., 905 A.2d 177, 180-81 (D.C. 2006)). In other words, "'we must uphold the agency action if it is supported by substantial evidence even if there is substantial evidence to support a contrary conclusion.'" Castro, 20 A.3d at 756 (quoting Combs v. District of Columbia Dep't of Emp't Servs., 983 A.2d 1004, 1009 (D.C. 2009)).

III.

As a threshold matter, petitioner contends the ALJ erred in concluding the Legal Clinic met its burden of establishing that she voluntarily resigned from her position. More specifically, petitioner argues that she did not voluntarily resign but was constructively discharged, and that the ALJ should have considered her evidence of racial discrimination as part of its voluntariness inquiry as opposed to using it to determine whether her resignation was for good cause connected with her work. We disagree. In unemployment cases we have recognized one exception to the general rule that an employee who voluntarily resigns is not eligible to collect unemployment benefits. That exception is where an employee is forced to choose between resigning or being immediately discharged. Under those circumstances, the choice to resign is not considered a voluntary quit but a constructive discharge. Petitioner contends that we should also look at her resignation as a constructive discharge. However, the situations are not analogous. See Green, 499 A.2d at 876 ("[t]his court deems involuntary a resignation in the face of imminent discharge"). Here, petitioner was not facing an imminent discharge from her position as a staff attorney. Instead, she contends that she was forced to resign from her employment because of intolerable working conditions at the Legal Clinic. To prevail on that type of claim, petitioner has to show that a reasonable person facing similar working conditions would also have resigned. See, e.g., Wright v. District of Columbia Dep't of Emp't Servs., 560 A.2d 509, 513 (D.C. 1989) (burden on employee to demonstrate "she resigned for 'good cause' connected with her employment"). Here, there was no evidence presented by petitioner that she faced any imminent discharge or even any threat of discharge from her employer and therefore, the ALJ properly rejected petitioner's claim that she was constructively discharged in this case and thus eligible for unemployment benefits. In sum, the ALJ's determination that petitioner voluntarily resigned is supported by sufficient evidence in the record.

(See petitioner's resignation letter submitted on April 13, 2018.2)

IV.

Alternatively, petitioner argues that she has proven by a preponderance of the evidence that she was a victim of racial discrimination and unlawful retaliation, 3 and that the improper conduct also aggravated an existing known illness. Therefore, she contends that the ALJ erred in finding that her resignation was not for good cause connected to the work.4 In response, the Legal Clinic offered testimonial and other evidence to refute petitioner's claims that she was the victim of racial discrimination and further offered evidence that the incidents complained of were not sufficiently egregious that they would cause a...

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