Savage–Bey v. La. Petite Acad., No. 11–AA–502.

• Decision Date: 30 August 2012
• Docket Number: No. 11–AA–502.
• Citation: 50 A.3d 1055
• Parties: Rochelle V. SAVAGE–BEY, Petitioner, v. LA PETITE ACADEMY, Respondent.
• Court: D.C. Court of Appeals

50 A.3d 1055

Rochelle V. SAVAGE–BEY, Petitioner,

v.LA PETITE ACADEMY, Respondent.

No. 11–AA–502.

District of Columbia Court of Appeals.

Submitted March 27, 2012.

Decided Aug. 30, 2012.

John C. Kenney, Jr., and David A. Young for petitioner.

Respondent did not file a brief.

Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

THOMPSON, Associate Judge:

Petitioner Rochelle Savage–Bey seeks review of a March 31, 2011, Final Order on Remand of the Office of Administrative Hearings (“OAH”) dismissing as untimely her appeal from a Department of Employment Services (“DOES”) claims examiner's determination that she was disqualified from receiving unemployment compensation benefits because she was “discharged from [her] job ... for improper conduct.” Savage–Bey argues (1) that the OAH Administrative Law Judge (“ALJ”) erred in treating her appeal as untimely, or (2) in the alternative, that her failure to file her appeal within 15 days after the mailing date certified by the claims examiner falls with the “good cause” and “excusable neglect” exceptions created by a recent amendment to the District of Columbia's unemployment compensation statute. In addition, Savage–Bey argues that this court can determine as a matter of law that the grounds offered by the employer for her termination did not amount to misconduct within the meaning of the unemployment compensation regulations. We reverse the ruling dismissing Savage–Bey's appeal as untimely and remand on the misconduct issue.

I. Procedural History

This matter is before us for the second time. Savage–Bey initially petitioned for review of an April 17, 2009, OAH Final Order, in which the ALJ, after a hearing, dismissed her appeal from the claim's examiner's determination on the ground that the appeal had not been filed within ten days after the Determination denying her claim (the “Determination”) was mailed. While the petition was pending before this court, the Council of the District of Columbia passed the Unemployment Compensation Reform Amendment Act of 2010, D.C. Law 18–192 (July 23, 2010), amending D.C.Code § 51–111(b). As amended by that legislation, § 51–111(b) provides in relevant part that:

The Director [of DOES] shall promptly notify the claimant and any party to the proceeding of its determination, and such determination shall be final within 15 calendar days after the mailing of notice thereof to the party's last-known address or in the absence of such mailing, within 15 calendar days of actual delivery of such notice. The 15–day appeal period may be extended if the claimant or any party to the proceeding shows excusable neglect or good cause. The exception for good cause or excusable neglect shall apply to all claims pending on July 23, 2010, including those in which an appeal has been filed in the Office of Administrative Hearings or in which a petition for review has been filed in the District of Columbia Court of Appeals.

Thus, § 51–111(b) now provides for a fifteen-day (rather than the former ten-day) window for filing an appeal from an adverse claims examiner determination, and it authorizes an extension of the time to appeal upon a showing of excusable neglect or good cause. In an August 3, 2010, Memorandum Opinion and Judgment, we disposed of Savage–Bey's initial petition by vacating OAH's initial Final Order and remanding the case for a determination as to whether Savage–Bey's appeal could proceed under the amended statute. On March 31, 2011, having determined that no additional hearing was necessary,¹ the ALJ issued a Final Order on Remand, in which she again dismissed Savage–Bey's appeal as untimely. The instant petition for review followed.

II. The Factual Background Pertinent to Timeliness and the Final Order on Remand

Savage–Bey applied for unemployment benefits on August 15, 2008, after respondent La Petite Academy, a pre-school, terminated her employment as a cook/food service manager. In the Final Order on Remand, the ALJ found that DOES mailed the Determination denying Savage–Bey's claim on September 15, 2008. The ALJ based that finding on the following statement at the bottom of the Determination: “I certify that a copy of this document was mailed to the claimant and to the employer named herein at the above address on 09/15/2008.” ² In light of that certification, the ALJ found that Savage–Bey's appeal, which was not filed until December 5, 2008, was “late.”

Generally crediting Savage–Bey's testimony, the ALJ also found that when Savage–Bey applied for benefits, “[a] DOES staff person told Claimant Savage–Bey that she would receive something in the mail”; that Savage–Bey thereafter had “regularly received bi-weekly claim forms in the mail” and was still receiving them in early December 2008; that Savage–Bey “talked to friends who had received unemployment compensation benefits in the past” and who “advised her to wait for DOES to send the Determination”; that “[i]n late October or early November 2008,” Savage–Bey “called DOES to inquire about the status of her application”; that on December 4, 2008, when Savage–Bey went to the Naylor Road office, “[a] DOES staff person told [Savage–Bey] that DOES had mailed the Determination to her on September 15, 2008; that a DOES staff person gave a faxed copy of the Determination to Savage–Bey on December 5, 2008; and that Savage–Bey filed her appeal letter in person on the same day.

The ALJ specifically found that Savage–Bey “did not receive the Determination in the mail[.]” However, the ALJ concluded that “[t]he record contains no evidence which rebuts the mail date on the certificate of service.” Citing Thomas v. Nat'l Children's Ctr., Inc., 961 A.2d 1063, 1066 (D.C.2008), the ALJ therefore went on to consider whether Savage–Bey “(a) had actual notice of the proceedings; (b) acted in good faith; (c) took prompt action; and (d) presented an adequate defense.” The ALJ stated that Savage–Bey “candidly and credibly testified that she could not remember most of the specific dates on which she pursued her application for benefits,” but had “estimated that the first time she called DOES to check the status of her application for benefits was in late October or early November, at least two months after she applied for benefits.” The ALJ found that Savage–Bey had then “waited another month and a half, until approximately December 4, 2008, to follow up.” The ALJ found that “[t]hese two calls, made more than two months after the appeal period expired and three months after [Savage–Bey] first applied for benefits, do not match the prompt and persistent follow-up demonstrated in Thomas and Frausto [ v. U.S. Dep't of Commerce, 926 A.2d 151, 154 (D.C.2007) ], and thus do [not] constitute prompt action on her application.” The ALJ reasoned that she therefore could not find that the evidence “rebuts the presumption that DOES mailed the Determination to the correct address on the date on the mail certification.”

The ALJ next considered whether Savage–Bey had shown “good cause” or “excusable neglect” within the meaning of § 51–111(b), as amended. The ALJ cited the test for “excusable neglect” articulated in Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Having cited Pioneer, however, the ALJ went on to compare the duration of the delay in Savage–Bey's case to the duration in various civil and criminal cases from this and other jurisdictions. By comparison to those cases, the ALJ found, “Savage–Bey's three month delay while she was ‘having patience’ based upon friends' advice” did not qualify as excusable neglect. Accordingly, the ALJ dismissed the appeal for lack of jurisdiction (observing that the “15–day period for appeals of DOES Determinations is jurisdictional”).

Savage–Bey now argues that the ALJ erred in finding that “DOES established the mailing presumption” and that her appeal was untimely; that the ALJ failed, in applying the good cause and excusable neglects standards, to give proper consideration to Savage–Bey's lack of knowledge that the Determination had been issued, her repeated efforts to follow up on the resolution of her claim, and her good faith actions once she learned of the Determination; and that this court should reverse the denial of benefits on the merits since the record contains “no evidence of intentional disregard of the employer's interests” as is required for a finding of misconduct.

III. Analysis

Our review of OAH decisions is limited, and we must affirm unless the decisions of the OAH are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Thomas, 961 A.2d at 1065 (citation and internal quotation marks omitted). We must be satisfied that the ALJ “(1) made findings of fact on each material, contested factual issue, (2) based those findings on substantial evidence, and (3) drew conclusions of law which followed rationally from the findings.” Walsh v. District of Columbia Bd. of Appeals & Review, 826 A.2d 375, 379 (D.C.2003) (citation and internal quotation marks omitted). Applying those criteria, we agree with Savage–Bey that the ALJ's decision on timeliness cannot be sustained. As to the misconduct issue, OAH has yet to “ma[k]e findings of fact on each material, contested factual issue,” and thus we must remand.

A. Timeliness³

Our case law recognizes a “presumption that correspondence mailed and not returned to the agency is received.” McCaskill v. District of Columbia Dep't of Emp't Servs., 572 A.2d 443, 445 (D.C.1990); see also Kidd Int'l Home Care, Inc. v. Prince, 917 A.2d 1083, 1087 (D.C.2007) (describing the “rebuttable presumption that a letter properly addressed, stamped, and mailed, and not returned to the sender, has been delivered to the addressee”). As we have cautioned, however, “a certificate of service attached to a DOES claims determination is insufficient proof of the date DOES mailed the determination in light of a claimant's...