Wisniewski v. Department of Labor, Licensing and Regulation

• Decision Date: 01 September 1996
• Docket Number: No. 1881,1881
• Citation: 700 A.2d 860,117 Md.App. 506
• Parties: Terry WISNIEWSKI v. DEPARTMENT OF LABOR, LICENSING AND REGULATION. ,
• Court: Court of Special Appeals of Maryland

Page 506

117 Md.App. 506

700 A.2d 860

Terry WISNIEWSKI v. DEPARTMENT OF LABOR, LICENSING AND REGULATION.

No. 1881, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 30, 1997.

LLewellyn Woolford, Jr., Towson, for appellant.

Andrew D. Auerbach, Asst. Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Submitted before HOLLANDER and SONNER, JJ., and ROBERT F. FISCHER, Judge (retired), Specially Assigned.

Hollander, Judge.

This case arises from a decision denying unemployment insurance benefits to Terry A. Wisniewski, appellant. The Board of Appeals of the Department of Labor, Licensing and Regulation ("the Board"), appellee, concluded, pursuant to Md.Code (1993, 1996 Supp.), § 8-1001 of the Labor and Employment Art. ("L.E."), that appellant was ineligible for benefits because she voluntarily quit her employment as a bartender, without good cause or valid circumstance. Appellant sought review of the Board's adverse decision in the Circuit Court for Baltimore County, which also affirmed. She has timely noted her appeal and presents the following issues for our review, which we have reordered:

1. Did the employer fail to meet its burden of showing by substantial evidence that Ms. Wisniewski voluntarily quit without good cause or valid circumstances?

2. Did the hearing examiner violate his duty to inquire into all of the relevant facts and fully develop the record?

3. Did the Board of Appeals act arbitrarily and capriciously when it refused to reopen Ms. Wisniewski's case?

We are of the view that the Board had substantial evidence before it from which it could reasonably conclude that appellant voluntarily quit her employment without good cause or valid circumstances. Further, we conclude that the Hearing Examiner adequately inquired into the facts of the case, consistent with his duty. We are also satisfied that the Board did not abuse its discretion in declining to reopen appellant's case. Therefore, we shall affirm.

Factual Background

Janet Ewing ("Ms.Ewing") and Ron Ewing ("Mr.Ewing") owned J.F. Ewing, Inc. (the "Employer"), which operated a bar and restaurant called Steamers. Appellant worked at Steamers from October 1994 to August 4, 1995.

On August 27, 1995, appellant filed a claim for unemployment insurance benefits with the Maryland Department of Economic and Employment Development ("DEED"). ¹ She contended that her employer placed her on a leave of absence because she had become pregnant and was unable to tend bar for "fear [of] getting hurt," even though she was otherwise able to work. When Mr. Ewing told appellant that he did not have any other position for her, she "stated O.K." In its response to the claim, the Employer contended that appellant quit her employment due to the pregnancy, and did not provide "a doctor's verification." Moreover, the Employer asserted that appellant declined its offer to work two nights a week managing the bar, because she claimed she could not be on her feet.

The claims examiner found:

THE CLAIMANT QUIT EMPLOYMENT WITH J R EWING INC. ON 080595 BECAUSE THE CLAIMAN [sic] FELT SHE COULD NO LONGER HANDLE HER JOB DUTIES AS A BARTENDER DUE TO HEALTH REASON CONNECTED WITH HER PREGNANCY. INSUFFICIENT INFORMATION HAS BEEN PRESENTED TO PROVE THAT THE QUIT WAS EITHER WITH GOOD CAUSE OR DUE TO A VALID CIRCUMSTANCE. THEREFORE, IT IS DETERMINED THAT THE CLAIMANT VOLUNTARILY QUIT WITHOUT GOOD CAUSE WITHIN THE MEANING OF SECTION 8-1001 OF THE MARYLAND UNEMPLOYMENT INSURANCE LAW.

After appellant appealed this decision, an administrative hearing was held on October 3, 1995, at which neither party was represented by counsel. Both parties received written notice advising them of the hearing, which contained the following information on the front of the form: "This hearing is the last step at which either the claimant or the employer has the absolute right to present evidence. The decision will be made on the evidence presented." The reverse side of the notice further stated, in pertinent part:

The Hearing Examiner will try to develop all of the facts of this case in order to give a fair hearing to all parties, but the Hearing Examiner will not conduct an investigation, contact witnesses not brought to the hearing or obtain documents which are not brought into the hearing by the parties.

* * * *

A party may be represented by an attorney, or other authorized agent. However, they are responsible for any cost incurred. Attorneys representing a claimant may not charge more than the fee approved by the Board of Appeals.

* * * *

Each party should arrange for all necessary witnesses to attend the hearing, and for all necessary documents to be presented at the hearing. If witnesses will not appear or documents will not be produced voluntarily, you may request a subpoena from the Appeals Division.

At the hearing, it was uncontested that appellant began working at Steamers in October 1994 as a bartender. Although appellant primarily worked as a bartender, she also managed the restaurant in the absence of the Ewings. Appellant became pregnant in the spring of 1995, and notified the Ewings that, because of health concerns related to her pregnancy, she would be unable to continue to tend bar.

Appellant testified that she and the Ewings mutually agreed that she would cease bartending duties and that, after a two-week vacation from August 5th to August 18th, she would return to work as a hostess, two nights per week. Appellant also testified:

I went back periodically to see when I would start hostessing. And a couple of times I was---well, Ron kind of didn't want to talk about it.... And then they changed their mind cause they just couldn't afford it. That's what I was told, when I had went and discussed [employment] the last time.

Appellant explained that, both during her vacation and immediately afterward, she repeatedly attempted to talk to Mr. Ewing about being placed on the work schedule. She also testified that around August 18th, she applied for food stamps, and went to the restaurant after August 18th to have papers signed for her food stamp application. ²

Ms. Ewing was the sole witness for the Employer. She testified that appellant notified them that her last management shift would be July 3, 1995. She also testified that appellant continued to tend bar two nights per week and, about two weeks prior to August 5th, "she gave us notice that that would be her last bartending shift." ³ According to Ms. Ewing, appellant telephoned the Ewings on three occasions, and during each of those calls they made appointments to meet with appellant, but appellant "did not show up" for any of those appointments. She further testified:

Terry could not give us an answer. She was offered management shift. She was offered two evenings per week. And, prior to her leaving as a bar tender [sic] she refused to do any management shift. She said, the bar tending's too much of a strain on her physically. And I can understand that. And we were willing to give her [a] management position, which I thought was less demanding on her physically. And she did not want to do that either.

Appellant vigorously contested Ms. Ewing's version of events, denying that she quit and asserting, inter alia, "I never gave them notice." After Ms. Ewing testified, appellant submitted an affidavit from a patron of the restaurant, which she had earlier declined to offer in evidence because it would not remain confidential. The affidavit stated:

This is to clarify, I Diana Sincavage, was present when Terry Wisniewski discussed keeping her managing and hostess position for Ron and Janet Ewing, since physically she could not continue her bartending duties. Their response was favorable and to go into effect following her vacation.

On October 20, 1995, the Hearing Examiner issued his findings of fact, which were in accord with Ms. Ewing's version of events. The Hearing Examiner determined that the claimant gave notice that her last day of work in "any capacity" would be August 4, 1995, and that she would return from vacation on August 18, 1995. Upon returning from her vacation, he found that appellant "made no direct effort to contact the employer, thought [sic] the employer tried on three occasions to set up and [sic] appointment with her to discuss her future employment." In addition, the Hearing Examiner noted that, at about the time she returned from vacation, appellant applied for food stamps. As appellant had conceded, the Hearing Examiner found that appellant was able and available to work. Based on his findings, the Hearing Examiner concluded:

The evidence in this case makes clear that this was a voluntary quit. The burden of proof is upon the claimant to show that there was a voluntary quit with good cause or valid circumstances. That burden has not been met. The result can only then be a finding of a voluntary quit without good cause or under valid circumstances.

Therefore, he affirmed the claims examiner's decision denying unemployment compensation to appellant.

Thereafter, appellant appealed to the Board. On December 7, 1995, the Board denied appellant's petition for review, without a hearing. Subsequently, appellant obtained counsel and, on December 14, 1995, she filed a detailed request with the Board asking it to reconsider her case. In support of the request, she attached affidavits from three witnesses who had not earlier testified, but all averred that they would testify if another hearing were scheduled. Her counsel also sought to identify numerous errors in the findings of fact made by the Hearing Examiner. Additionally, counsel commented on Mr. Ewing's absence from the hearing. Counsel also noted that appellant attended a Steamers employee party on August 21, 1995, which the Ewings also attended, thereby irrefutably disproving their claim that they had no contact with appellant after she returned from vacation on August 18, 1995.

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