Nwokwu v. Allied Barton Security Service, 101917 DCCA, 15-AA-22

Docket Nº:15-AA-22
Opinion Judge:Easterly, Associate Judge
Party Name:Uzochukwu J. Nwokwu, Petitioner, v. Allied Barton Security Service, Respondent.
Attorney:David A. Reiser, with whom Jacob Schuman, and Jonathan H. Levy, Legal Aid Society of the District of Columbia, were on the brief for petitioner.
Judge Panel:Before Blackburne-Rigsby and Easterly, Associate Judges, and Reid, Senior Judge.
Case Date:October 19, 2017
Court:Court of Appeals of Columbia District

Uzochukwu J. Nwokwu, Petitioner,


Allied Barton Security Service, Respondent.

No. 15-AA-22

Court of Appeals of Columbia District

October 19, 2017

Submitted March 10, 2016

On Petition for Review from the Office of Administrative Hearings, 2014-DOES-1630.

David A. Reiser, with whom Jacob Schuman, and Jonathan H. Levy, Legal Aid Society of the District of Columbia, were on the brief for petitioner.

Before Blackburne-Rigsby [*] and Easterly, Associate Judges, and Reid, Senior Judge.

Easterly, Associate Judge

Petitioner Uzochukwu Nwokwu seeks review of a decision by an Office of Administrative Hearings (OAH) Administrative Law Judge (ALJ) determining that Mr. Nwokwu was ineligible for unemployment benefits. The ALJ concluded Mr. Nwokwu had voluntarily quit his job with his employer, Allied Barton Security Services, when he was removed from an assignment at a third party location and failed to timely contact Allied Barton for a new one. The ALJ reasoned that Mr. Nwokwu "had a duty to take steps to preserve his employment, " and that he had breached this duty with his inaction.

We reverse. Under our employment benefits statute, which we interpret in favor of awarding benefits in light of its humanitarian purpose, a claimant is presumed to have left his job involuntarily unless the employer proves otherwise. To carry this burden, the employer must present evidence that the former employee affirmatively acted to end the employment relationship, or at least affirmatively acted in such a way that his desire to end the relationship may be reasonably inferred. It is not enough for an employer to show that a claimant precipitated his termination by his failure to do work or make himself available to do work. Rather, it must be apparent that the claimant actually, voluntarily, quit. Because Allied Barton did not prove that Mr. Nwokwu voluntarily quit his job-the only theory of ineligibility it pursued before OAH-we reverse and remand the case to OAH with directions to award the unemployment compensation benefits due to Mr. Nwokwu under the law.

I. Facts

Mr. Nwokwu was employed by Allied Barton, a security services company. In August 2012, he was assigned to work at a building occupied by the Federal Deposit Insurance Corporation (FDIC). A year later, on August 7, 2013, Allied Barton removed Mr. Nwokwu from that work site after a supervisor reported that he had been sleeping at his post.1 What happened next is subject to some dispute, not only because Mr. Nwokwu and Allied Barton gave differing accounts, but also because Allied Barton took inconsistent positions in the course of litigating Mr. Nwokwu's claim for unemployment benefits.

Allied Barton's initial position before a Department of Employment Services (DOES) claims examiner was that Mr. Nwokwu was ineligible for benefits because it had "discharged" him from its employ for misconduct after the sleeping incident. But when Mr. Nwokwu challenged the determination denying him benefits on that basis and requested a hearing by an OAH ALJ, Allied Barton provided a different justification for Mr. Nwokwu's ineligibility: it claimed that, after it notified Mr. Nwokwu that he could no longer work at the FDIC work site, he voluntarily quit by failing to timely contact Allied Barton, as instructed, for a new assignment.2

In support of this narrative, Allied Barton presented testimony from one witness, its project manager at the FDIC worksite, Barry Leese. Mr. Leese testified that Mr. Nwokwu "was notified to contact our HR [Human Resources] Department to look for other positions he may be able to fulfill." Mr. Leese did not "personally" communicate this message to Mr. Nwokwu, but he identified a "Disciplinary/Counseling Statement" representing that, after the sleeping incident, Mr. Nwokwu had "been instructed to contact HR/recruiting to determine suitability for placing at another site."3 The signature line for Mr. Nwokwu on the statement was blank. The statement did not specify a required timeframe for reporting or a point of contact.

In response to an inquiry from the ALJ about whether there was a "deadline where [an employee] is considered [to have] abandoned" his position at Allied Barton, Mr. Leese testified that "[t]he rule of thumb is three days." But the excerpts of its policy manual that Allied Barton put into evidence did not memorialize this "rule of thumb, " and Allied Barton presented no evidence that Mr. Nwokwu had notice of this alleged rule.

Regarding the proper point of contact at HR, Mr. Leese testified that Mr. Nwokwu should have called Allied Barton's recruiter, Cory Plummer. Mr. Leese was asked how he, a project supervisor at the FDIC worksite, knew that Mr. Nwokwu had not in fact contacted Mr. Plummer. Mr. Leese indicated that he did not know but only inferred that Mr. Nwokwu had not done so because he never received a notification from HR that Mr. Nwokwu was being transferred to another worksite.

Mr. Leese testified that Allied Barton next heard from Mr. Nwokwu on October 7, 2013 when Mr. Nwokwu called Amanda Gaudard in Allied Barton's HR department. Mr. Leese read into the record an email Ms. Gaudard had sent Mr. Leese memorializing the call and asking him to advise her about Mr. Nwokwu's status: Mr. Nwokwu called this afternoon inquiring about returning to work from leave. However, he is active in the system with no absences entered for FMLA or leave. He stated he was out for 2 months taking care of business for a relative in another country. Can you please advise on the status of Mr. Nwokwu?

The record is silent as to how Mr. Leese responded to Ms. Gaudard's inquiry.

Mr. Leese acknowledged that the date of submission on the Termination Change of Status form regarding Mr. Nwokwu's termination of employment with Allied Barton was January 23, 2014, more than three months after this email exchange.4 The form indicates that the reason for Mr. Nwokwu's "resignation" was "job abandonment (EE Failed to maintain contact)" and contains a brief statement in the comment section that "Officer Nwokwu was removed from this contract for sleeping and sent to ABSS Corporate for disposition. No indication Officer Nwokwu followed up with Corporate appointment." Mr. Leese acknowledged that there was no specific reference in the Change of Status form to Mr. Nwokwu's failure to contact Allied Barton between August 7 and October 7, 2013. Allied Barton presented no evidence that it ever sent this or any other document to Mr. Nwokwu informing him that his employment with Allied Barton had been terminated.5

After Allied Barton presented its case, Mr. Nwokwu testified and gave a different account of the conclusion of his employment relationship with Allied Barton. He testified that on August 7, 2013, he received a call directing him not to report to the FDIC6 and to "go to the office and be given another [work]site." He did this on or about August 10. But when he went to the office, "nobody at HR knew anything about [his] case." When Mr. Nwokwu tried to press for more information, the individual to whom he was speaking "got angry and pushed [him] out of the - told me to go out." Mr. Nwokwu testified he was "scared of going back to that office because of the way I was treated that day."

Thereafter Mr. Nwokwu testified that he made multiple phone calls to HR.7At some point he was given the name of a woman to talk to, Lisa McClaren, but he was never able to get through to her. Mr. Nwokwu also spoke to Mr. Plummer, asking him for "another [work] site." Mr. Nwokwu testified that he eventually returned in person to the HR office and spoke to Ms. Gaudard.8


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