Tolson v. Dep't of the Interior, 20-AA-189
| Decision Date | 27 May 2021 |
| Docket Number | No. 20-AA-189,20-AA-189 |
| Parties | Katherine M. TOLSON, Petitioner v. DEPARTMENT OF THE INTERIOR, Respondent. |
| Court | D.C. Court of Appeals |
Paul J. Sampson, Washington, DC, for petitioner.
Derek S. Hammond, Assistant United States Attorney, for respondent. Michael R. Sherwin, Acting United States Attorney, and R. Craig Lawrence and Jane M. Lyons, Assistant United States Attorneys were on the brief for respondent.
Before Glickman, Easterly, and Deahl, Associate Judges.
"The purpose of the District's unemployment compensation statute [ D.C. Code § 51-101 to 127 ] is to protect employees against economic dependency caused by temporary unemployment and to reduce the need for other welfare programs." Nwokwu v. Allied Barton Sec. Serv. , 171 A.3d 576, 582 (D.C. 2017). To that end, unemployment benefits are presumptively available to all qualifying employees who lose their job. An employer may rebut the presumption that an employee is entitled to benefits by showing that, based on all the circumstances surrounding the employee's departure, the employee assumed the risk of unemployment and left their job of their own free will. But the fact that the burden of proof and persuasion is placed on the employer to show the employee left voluntarily does not alter the proper focus of the voluntariness inquiry, namely, the state of mind of the employee.
This court has previously recognized, consistent with the unemployment regulations, that an employee does not leave their job voluntarily if they reasonably believe they are about to be fired. Here, the employer communicated to the employee that a "final" decision had been made that she was "unsuitable" for her job, and the employee believed she was about to be fired. But because of other procedural requirements, termination was not in fact imminent. The Office of Administrative Hearings Administrative Law Judge determined that the objective reality—the fact that termination procedures had not yet commenced—was dispositive and concluded that the employee resigned from her position of her own volition. But the employee's reasonable understanding of her circumstances controls. Because the record evidence indicates that the employee reasonably believed she was about to be fired, we reverse and remand.
Katherine Tolson began working as an administrative support assistant in human resources at the U.S. Department of the Interior in 2011. In 2017, the Department initiated a security "reinvestigation" of Ms. Tolson, with which Ms. Tolson cooperated. She was informed of the conclusion of the reinvestigation in a three-page document dated October 1, 2019, with the subject "Notification of Determination and Referral." The document detailed both "Adjudicative Findings" and the "Adjudicative Conclusion." In the latter section, the document informed Ms. Tolson that she had been found "unsuitable for Federal service." The first sentence of the penultimate paragraph of the document stated that "[a] copy of this final determination is being provided to your organization[’]s Employee & Labor Relations Branch who will work with your supervisor to initiate an appropriate administrative action which includes your removal from Federal service ." (emphasis added). The second sentence of this paragraph "advised that this unfavorable suitability determination is final and is not subject to further appeal."
A second "Notification of Determination and Referral" was generated ten days later. This October 11, 2019, document was a duplicate of the October 1, 2019, document—it had the same number of pages and paragraphs, with the same page breaks, and the same content—with two exceptions. At the beginning of the notification, the security designation for Ms. Tolson's position as Non-Sensitive/Moderate Risk was corrected to Non-Sensitive/Low Risk. And at the end of the notification, the first sentence of the penultimate paragraph was abridged so that it stated only that the Department's "Employee & Labor Relations Branch ... will work with your supervisor to initiate an appropriate administrative action" and made no reference to "removal from Federal service." Nothing in the notification called attention to either of these alterations.
On October 22, 2019, Ms. Tolson submitted a two-sentence letter to the Department of the Interior stating that she was resigning and identifying her last day of work. Thereafter, she applied for unemployment benefits with the Department of Employment Services. A DOES claims examiner acknowledged Ms. Tolson's explanation that "she quit work because her employer was going to terminate her," but concluded that her departure was voluntary based on the Department's representation that she had "quit her job due to ... personal reasons and she did not receive any Notice of Proposed Removal." The claims examiner then concluded that because Ms. Tolson had not proved that she left "for good cause connected with the work,"1 she was not entitled to unemployment benefits.
Ms. Tolson appealed this determination to OAH. Human resources specialist Elizabeth Poore appeared for the Department of the Interior at the hearing before the OAH ALJ. The essence of Ms. Poore's testimony was that at the time Ms. Tolson resigned, she had not yet been formally terminated by the Department. Although she had received a letter informing her she was unsuitable for federal service, she resigned before the Department initiated the discharge process. Ms. Poore acknowledged that the unsuitability notification, dated October 1, 2019, had included a reference to "removal from federal service" as a consequence of the unsuitability determination.
Testifying on her own behalf, Ms. Tolson explained that she had been working since she was sixteen, and that she had twenty-five years of service in the federal government, nine of them at the Department of the Interior. She stated that she had resigned from the Department "[b]ecause I was being removed." She elaborated that she believed she was being terminated "[b]ecause of my security clearance"—apparently a reference to her unsuitability determination2 —and she noted that "[a]t the bottom of the letter it said I couldn't appeal." She had spoken to Human Resources after she received the unsuitability notification, and someone (she could not remember who, even though she worked in HR) told her to "go ahead and resign" and keep a "clean record."3 She also testified that she believed "they w[ere] going to have an action process for me," meaning "[a] removal action." She explained that she
After Ms. Tolson testified, her counsel recalled Ms. Poore for further questioning. Ms. Poore then mentioned for the first time that Ms. Tolson had been issued two unsuitability notifications, the first on October 1, 2019, referencing her "removal from Federal service," and the second on October 11, 2019, with the "removal" language deleted.4 Ms. Poore explained the second unsuitability notification was generated because the first one "made it sound like removal was a foregone conclusion," when in fact Ms. Tolson had a separate right to notice of her proposed termination and the opportunity to challenge that action.
In response to counsel's questions, Ms. Poore conceded that Ms. Tolson was not advised in the unsuitability notification of her separate rights to notice and an opportunity to be heard with respect to an adverse action such as termination. Ms. Poore also conceded that there was no other position Ms. Tolson could have filled at the Department with an unsuitability determination, and based on her twenty-five years working in human resources, she opined that it was "highly unlikely" someone deemed unsuitable could keep their job.
Ms. Tolson was not recalled to the stand after Ms. Poore testified for the second time, and the hearing concluded. The ALJ subsequently issued a written order. In her findings of fact, the ALJ explained that, independent of the suitability assessment, the "Employer's discharge process require[d the] Employer to initiate an administrative action to separate an employee"; the employee had a right to notice and an opportunity to be heard before a final decision was made; and the employee also had a right to appeal to the U.S. Merit Systems Protection Board. The ALJ further found that "[a]t the time [Ms. Tolson] resigned, [the Department of Interior] had not initiated an administrative action to remove [her], nor had [the Department] issued [her] a notice of proposed removal, which is necessary to discharge an employee from federal service." The ALJ then concluded the Department had carried its burden to show that Ms. Tolson "resigned voluntarily, and not in the face of imminent termination." The ALJ explained that the Department "had not initiated an action to remove [her] based upon the suitability determination," and she did not credit Ms. Tolson's testimony that "employees in human resources told her that a discharge action would be taken." The ALJ also stated she was "not persuaded by [Ms. Tolson's] assertion that her separation was a for[e]gone conclusion because she had been found unsuitable for continued federal employment," noting "Ms. Poore could not state definit[ively] that [Ms. Tolson] would be separated as a result of the suitability determination." Because the fact that she "might be separated ... at some point in the future ... is not sufficient cause to resign," the ALJ concluded, Ms. Tolson "jumped the gun."
The ALJ also addressed whether Ms. Tolson had demonstrated that she resigned for good cause connected with the work such that she would still qualify for unemployment benefits. Although she found that Ms. Tolson "testified credibly ... that she resigned because she believed[ ] that she was going to be fired and that it would be better for her to resign so that she would have a clean...
To continue reading
Request your trial