Thomas v. Dist. of Col. Dept. of Labor, 13907.

CourtCourt of Appeals of Columbia District
Citation409 A.2d 164
Docket NumberNo. 13907.,13907.
PartiesPatricia THOMAS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF LABOR, Respondent.
Decision Date13 November 1979

G. William Scott, III, Neighborhood Legal Services Program, Washington, D. C., for petitioner.

Russell L. Carter, Washington, D. C., with whom D. Kevin Dugan and N. Denise Wilson, Washington, D. C., were on the brief, for respondent.

Before GALLAGHER and HARRIS, Associate Judges, and PAIR, Associate Judge, Retired.

HARRIS, Associate Judge:

Petitioner challenges a decision by what was then known as the District Unemployment Compensation Board which disqualified her from receiving unemployment benefits for a period of five weeks.1 The Board had affirmed determinations by both a claims deputy and an appeals examiner that petitioner voluntarily had left her last job without good cause.2 We reverse and remand the case for further proceedings.


Petitioner last was employed as the night switchboard operator at the Veterans Administration Hospital (a federal agency). She held that job from December 1974 until she resigned on December 10, 1977, under the circumstances to be discussed.

A few days later, petitioner applied for unemployment compensation benefits, telling the claims deputy that she had left her employ because of "family problems with my children . . . needed position during day." At the follow-up benefit rights interview, petitioner elaborated on this theme as her reason for resigning. Her former employer subsequently filed the requisite form with the Board; it indicated that petitioner had resigned to seek other employment. On this cursory evidence the claims examiner understandably ruled that petitioner had "voluntarily left available work due to personal reasons. This is not good cause for leaving available work." She accordingly was disqualified from benefits for seven weeks.

Petitioner timely appealed, and a hearing before an appeals examiner was conducted. Though notified of the hearing, no representative of the former employer appeared. The hearing was conducted with only petitioner and her counsel present. Petitioner testified at length concerning her heavy domestic responsibilities which had been depriving her of regular sleep at home, and which caused her to be late for work and to fall asleep on the job on occasions. She testified further concerning certain difficult conditions under which she worked as the hospital's lone night switchboard operator.

Based upon her obviously less than ideal conduct, petitioner had received a few admonitions and a suspension. Upon her request, sometime in late 1977 her weekly schedule was changed so that she no longer worked ten consecutive nights followed by four nights off. However, she apparently became confused by her new schedule and stayed away from work one night when she should have been on duty. Soon thereafter, she heard from a supervisor that disciplinary action was going to be taken against her. She then was called into her supervisor's office and told something to the effect that (1) based on her latest slip-up and her generally spotty prior performance record she could be removed, (2) she should contact her union representative, and (3) she might consider the alternative of resigning in return for the hospital's destroying any record of her poor performance.

The union representative agreed to explore the situation for her. Several days later, he gave her a discouraging report. According to petitioner, her union representative suggested that she resign because there was a proposal to remove her and the personnel department intended to achieve that result. It was his opinion that she could not successfully challenge the proposal to terminate her, and that she should accept their offer to purge her bad record (including the proposal to remove her) in return for her resignation. In the meantime, petitioner was assigned the duty of helping to train the woman who apparently had been hired to replace her.

Petitioner decided to agree to her employer's proposal, and gave two weeks' notice of her resignation. On the separation form, her employer had her fill in "to seek employment elsewhere," and the hospital gave this as the reason for separation on the ES-931 form which was filed with the Board following petitioner's initial application for unemployment compensation benefits. Petitioner testified, however, that the "real reason" she resigned was "because I was afraid I was going to get fired from the government. I wanted to keep my status and my career conditional."

The appeals examiner made brief (though accurate) findings of fact, and expressed the following conclusions:

Claimant voluntarily left her work December 10 and a suitable period of disqualification must therefore be assessed unless her evidence establishes good cause for leaving. What is good cause depends on the facts and circumstances of each case and the action of a reasonable and prudent individual in the labor market. Application of this requirement leads to the conclusion that the evidence does not establish good cause. Claimant's contention that her leaving should be construed as involuntary because of the possibility that separation proceedings would be instituted by the employer is not persuasive because the imminence of such proceedings was not established. Furthermore, if and when they were claimant had the right to challenge them both through her agency and the Civil Service Commission. In view of the extenuating circumstances adduced at the hearing however a minimum period of disqualification appears adequate.

The period of disqualification thus was reduced by the appeals examiner to five weeks. The Board affirmed, and petitioner brought this appeal.3


We note preliminarily that although the Board is empowered to issue subpoenas in the discharge of its duties,4 there is no requirement that the Board issue a subpoena to a party in any given case. In fact, 18 D.C.R.R. § 303.4 (governing the conduct of Board hearings) provides in its subsection (c) that:

In the event that any party fails to appear at the scheduled time of hearing, the examiner . . . may continue the case to another time or may order the taking of such testimony as is available and proceed with a determination of the appeal on the basis of the record then and there available.

Thus we are not persuaded by the argument that the Board must be overturned ipso facto, either because petitioner's former employer, although properly notified, did not appear, or because the employer was not subpoenaed to appear. We cannot say that the examiner abused his discretion in going forward without the presence of a representative of the hospital. While it is obviously preferable for the employer to be represented at such a hearing, it appears that here the Board could and did discharge its statutory function on the basis of petitioner's testimony and the other available evidence of record.

Further, the appeals examiner correctly did not take as final and conclusive the reason for separation ("to seek other employment") assigned by the employer in the ES-931 form which it filed with the Board. Such "findings" by federal employers no longer are entitled to be given special weight by the Board,5 and the examiner properly based his findings on his own inquiry into the matter.

We now turn to our review of the Board's conclusion on the merits. Under D.C.Code 1978 Supp., § 46-312, our review of unemployment compensation cases is governed by the District of Columbia Administrative Procedure Act (DCAPA). Specifically, "[f]indings of fact and conclusions of law shall be supported by and in accordance with the reliable, probative, and substantial evidence."6 This court may hold unlawful and set aside any action or findings and conclusions found to be unsupported by such evidence in the record.7 Hawkins v. Unemployment Compensation Board, D.C.App., 381 A.2d 619, 622 (1977); Washington Post Co. v. Unemployment Compensation Board, D.C.App., 377 A.2d 436, 439 (1977). Inherent in the "substantial evidence" test of the DCAPA are three requirements: (1) that the agency make findings of fact on each contested issue; (2) that each basic finding be supported by evidence sufficient to convince reasonable minds of its adequacy, and (3) that these findings, taken together, rationally lead to the agency's conclusions of law (or "ultimate facts"), thus supporting the agency's decision. See Citizens Association of Georgetown, Inc. v. Zoning Commission, D.C.App., 402 A.2d 36, 41-42 (1979); Kober v. Unemployment Compensation Board, D.C.App., 384 A.2d 633, 636 (1978).

Additionally, we are to defer to an agency's interpretation or construction of a statute which it is charged with administering unless it is "unreasonable either in light of the record or prevailing law." Billings v. Unemployment Compensation Board, D.C. App., 367 A.2d 116, 118 (1976), citing Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153-54, 67 S.Ct. 245, 91 L.Ed. 136 (1946). While this is true, we are not obliged to stand aside and affirm an administrative determination which reflects a misconception of the relevant law or a faulty application of the law. This court has an overriding decisional responsibility in those realms. Volkswagenwerk Aktiengesellschaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); SEC v. Cheney Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

We conclude that the Board, while affirming the appeals examiner, erred in rejecting, on the unrebutted facts of this case, petitioner's argument that her separation should be construed as a "constructive discharge," and hence that it should be classified as "involuntary" for unemployment compensation purposes. We recognize our limited scope of review over the Board's findings of basic fact. Here, however,...

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