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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 19-AA-52

                              JENINE EVANS, PETITIONER,

                                         V.

 DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

                                        and

  COMMUNITY PARTNERSHIP FOR PREVENTION OF HOMELESSNESS, INTERVENOR.

                      On Petition for Review of an Order of
                      the Office of Administrative Hearings
                                (DOES-2226-18)
(Submitted January 3, 2020                                Decided August 6, 2020)

      Jenine Evans, pro se.

      O’Neil S. King was on the brief for appellee.

      Before THOMPSON and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.
      Opinion for the court by Associate Judge THOMPSON.
      Dissenting opinion by Associate Judge MCLEESE at page 11.


      THOMPSON, Associate Judge: Pro se petitioner, Jenine Evans, seeks review

of a decision of the Office of Administrative Hearings (“OAH”) affirming a

determination of the District of Columbia Department of Employment Services
                                         2

(“DOES”) disqualifying her from receiving unemployment insurance benefits. Ms.

Evans, who also proceeded pro se before the OAH, acknowledges that she

voluntarily quit her position with intervenor Community Partnership for Prevention

of Homelessness (“CPPH”), but contends that the Administrative Law Judge

(“ALJ”) erred in finding that she did so without good cause connected with the

work. Concluding that the ALJ’s conclusion does not flow rationally from the

findings of fact, we reverse.




                                         I.




      Ms. Evans was employed for about a year and a half by the CPPH as a shift

manager at a homeless shelter. Ms. Evans resigned on September 27, 2018, to

accept another job. However, about a month after starting the new job, Ms. Evans

was terminated (on the ground that she was not sufficiently interactive with the

autistic child with whom she worked in that job). She applied for unemployment

insurance benefits, but her claim was denied on the ground that she voluntarily left

her job with CPPH without good cause connected with the work. Ms. Evans

appealed to OAH, which held a hearing on January 8, 2019.
                                          3



        At the hearing, Ms. Evans testified that she voluntarily quit her job with

CPPH after finding another job because she had learned that CPPH would be

“closing down” the shelter where she worked. She testified that no one at CPPH

had told her that she was “going to be let go[,]” but explained that “[n]o one told us

anything, I wasn’t told anything.”      She further testified that by the time she

actually quit, the two floors on which she worked “were already closed down.”

She testified that at a staff meeting, “it was said that no questions should be asked

about the building shutdown[,]” so that was when she started applying for other

jobs.   After she was let go from the new job, she called the CPPH Human

Resources office to ask whether she could return to CPPH, but received no

response.



        In his testimony at the hearing, Delano Hayles, CPPH’s representative and

one of petitioner’s former supervisors, explained that CPPH had discharged seven

employees on September 7 and informed other employees that CPPH “would let

them know if they were being discharged once the time was appropriate.” Mr.

Hayles acknowledged that the CPPH homeless shelter where petitioner worked did

close at the end of October.
                                        4

      The ALJ issued a final order on January 10, 2019. He found that “[d]uring

September 2018, [CPPH] laid off seven employees in anticipation of its changing

needs and the likely shutdown of the homeless shelter where [c]laimant worked.”

He further found that “[w]hile [c]laimant, and all of the employees at the shelter

where [c]laimant worked were at risk of being laid off during the next several

months, [CPPH] had not told [c]laimant that she was being laid off and [c]laimant

was not under threat of imminent discharge.” He further found that petitioner

“resigned to accept another job in light of the lack of job security with . . .

[e]mployer”.



      The ALJ acknowledged that petitioner “rightfully perceived that her position

with [e]mployer was at some risk[,]” but relying on Gomillion v. District of

Columbia Dep’t of Emp’t Servs., 447 A.2d 449 (D.C. 1982), concluded that

petitioner left her position with employer voluntarily, “and without good cause

connected with the work.”       He therefore affirmed the claims examiner’s

determination that petitioner was “disqualified from receiving unemployment

compensation benefits[.]” This petition for review followed.




                                         II.
                                         5




      “[A]ny individual who left [her] most recent work voluntarily without good

cause connected with the work, as determined under duly prescribed regulations,

shall not be eligible for [unemployment insurance] benefits . . . .” D.C. Code § 51-

110(a) (2014 Repl. & 2020 Supp.). “The test of voluntariness is whether it appears

from all of the circumstances that an employee’s departure was ‘voluntary in fact,

within the ordinary meaning of the word ‘voluntary.’’”         Cruz v. District of

Columbia Dep’t of Emp’t Servs., 633 A.2d 66, 70 (D.C. 1993). “[A]n employee’s

resignation is ‘voluntary’ if it was based on [her] own volition, and not compelled

by the employer.” Id. The determination of “good cause connected with the

work,” D.C. Code § 51-110(a), “is factual in nature and should be judged by the

standard of a reasonably prudent person [in the labor market] under similar

circumstances.” Kramer v. District of Columbia Dep’t of Emp’t Servs., 447 A.2d

28, 30 (D.C. 1982). “In order to constitute good cause, the circumstances which

compel the decision to leave employment must be real, not imaginary, substantial,

not trifling, and reasonable, not whimsical; there must be some compulsion

produced by extraneous and necessitous or compelling circumstances.” Cruz, 633

A.2d at 72 (internal quotation marks omitted).
                                        6



                                       III.




      CPPH urges us to uphold the ALJ’s determination that petitioner’s

“deci[sion] to quit work in order to accept a new position with another company

[was] a personal decision that [was] not related to the work the claimant was

performing,” thus disqualifying her from receiving unemployment insurance

benefits.



      As noted, the ALJ relied on this court’s decision in Gomillion. The facts

there were that the claimant left his old job to pursue another job with “the

expectation of earning higher wages” at the new job. Gomillion, 447 A.2d at 451.

Unlike in the present case, Gomillion did not involve a threat that the employee’s

current job would disappear. The instant case is more similar to Cruz, 633 A.2d

66, and to Beynum v. Arch Training Ctr., 998 A.2d 316 (D.C. 2010).



      In Cruz, we remanded the case to DOES for further proceedings on the

following rationale:

            If Mr. Cruz had left UPO only because he had accepted a
            better offer, recovery would be foreclosed under our
                                          7

             decision in Gomillion. . . . This case is unlike Gomillion,
             however, in that Mr. Cruz alleged that he voluntarily left
             UPO, at least in part, because UPO’s financial instability
             seriously threatened his job security, . . . [a reason that]
             merit[s] scrutiny under the ‘reasonable and prudent
             person’ test . . . . [However, the] hearing examiner . . .
             made no attempt at the hearing to elicit facts relevant to
             the complainant’s allegations as to the situation existing
             at UPO. We do not know if the employer was, in fact, in
             financial peril, or if Mr. Cruz reasonably believed that it
             was. . . . We do not suggest that an employee’s concerns
             about possible discharge on account of his employer’s
             actual or perceived financial straits, . . . would
             necessarily constitute “good cause connected with the
             work” within the meaning of the statute. . . .
             Nevertheless, given the points raised by Mr. Cruz, we
             cannot say that the hearing examiner made a finding on
             each relevant issue of fact, or that the agency’s decision
             was based on substantial evidence in the record as a
             whole.


Cruz, 633 A.2d at 71-72. We also remarked that “the sufficiency of a claimant’s

asserted justifications must be considered in light of the remedial purposes of the

statute.” Id. at 71.



      Similarly, in Beynum, we remanded for further proceedings because the ALJ

should have been alert “to the possibility that petitioner’s decision to leave Arch

was motivated by the uncertain future of her position with Arch and her desire to

seek improved job security in the marketplace.” Beynum, 998 A.2d at 320. We

reiterated our comment in Cruz that whether an unemployment insurance claimant
                                          8

has sufficiently shown “good cause connected with the work” for voluntarily

leaving her job is to be considered in light of the remedial and humanitarian

purposes of the statute. Id. (internal quotation marks omitted).



      The “‘good cause connected with the work’” standard is not “an easy

standard . . . to meet,” Cruz, 633 A.2d at 72, but, as described above, in the instant

case, the ALJ found that petitioner “rightfully perceived that her position with

[e]mployer was at some risk[.]” The ALJ also found that CPPH “laid off seven

employees in anticipation of its changing needs and the likely shutdown of the

homeless shelter where [petitioner] worked.”          In addition, the ALJ heard

petitioner’s uncontradicted testimony that “[b]y the time [she] actually left[] [her

job with CPPH, her] two floors, 4 and 5, were already closed down.” Mr. Hayles

confirmed in his testimony that the shelter “closed at the end of October,” just a

few weeks after petitioner resigned. He gave no assurance that petitioner would

have been moved to another position if she had remained in CPPH’s employ,

explaining that if petitioner had not quit, “and we needed that position, she would

have been retained for one of our hotel sites.” Further, petitioner testified that

prior to her departure “no one was giving [employees] information of when [the

shelter] was closing down or if anybody was getting moved to another site” and

employees were told “that no questions should be asked about the building
                                          9

shutdown.” Mr. Hayles confirmed that employees were told that “we would let

them know if they were being discharged once the time was appropriate” because

there were still families in the shelter and CPPH “didn’t want to cause all the

employees to think that they’re going to be discharged so everyone quits and then

we have . . . no one to serve those families.” And what petitioner described as

HR’s non-response to her inquiry about returning to CPPH after she lost her

subsequent job (which supports an inference that no positions were available, or at

least that none were being held for petitioner) indicates the reasonableness of

petitioner’s anticipation that her job was not secure.         Finally, the evidence

supported petitioner’s testimony that she “didn’t quit [CPPH] just not to have a

job” — showing, we think, that this is not a case involving a claim that is contrary

to the intent of the unemployment insurance statute to withhold payment from

“‘the shirker, the slothful or the indolent[.]’” Cruz, 633 A.2d at 69.



      We conclude that the foregoing evidence taken together compelled the ALJ

to conclude that, in voluntarily leaving her job at CPPH, petitioner behaved as a

reasonably prudent person in the labor market would have behaved under similar

circumstances. His conclusion that petitioner did not leave her job for good cause
                                         10

connected with the work does not “flow rationally from [his] findings” 1 about

petitioner’s “rightful[] perce[ption]” that her job with CPPH was at risk or from the

substantial evidence in the record supporting that finding. And while the ALJ

emphasized that no one told petitioner that she faced imminent discharge, Mr.

Hayles candidly acknowledged that CPPH intentionally withheld that lack-of-job-

security information from employees to deter them from leaving for other jobs; in

that circumstance, we conclude, the absence of notice of imminent discharge

should not preclude qualification for benefits.      For all these reasons, we are

constrained to reverse the ALJ’s decision. 2 See Barnett v. District of Columbia


      1
          Cruz, 633 A.2d at 70 (internal quotation marks omitted).
      2
          This case is different from Cruz and Beynum, in which we concluded that
remands for further proceedings rather than full-stop reversals were in order. As
we observed in Beynum, in Cruz, “the employee alleged that his employer was in a
financial crisis, that employees had been furloughed, and that he believed that his
position was at risk,” but “the hearing officer did not address this allegation in her
findings[.]” 998 A.2d at 320 (internal quotation marks and brackets omitted).
That is, the ALJ had made no findings about whether “the employer was, in fact, in
financial peril, or if Mr. Cruz reasonably believed that it was.” 633 A.2d at 71-72.
The Cruz court concluded that the employee was “entitled to have these issues
adequately explored and then resolved by reasonably specific findings.” 633 A.2d
at 72.

      Similarly, in Beynum, we said that while the employee’s hearing testimony
“lacked specificity,” the claims examiner’s original determination that the
employee had been laid off for lack of work “should have alerted the ALJ to the
possibility that [the employee’s] decision to leave [her job] was motivated by the
uncertain future of her position . . . and her desire to seek improved job security in
the marketplace.” 998 A.2d at 320. But the ALJ had “fail[ed] to consider the
                                                                        (continued…)
                                          11

Dep’t of Emp’t Servs., 491 A.2d 1156, 1164 (D.C. 1985) (remanding to the agency

“for the calculation and award of benefits to petitioner”).



      Wherefore, the order of the OAH disqualifying petitioner for benefits is



                                               Reversed.




      MCLEESE, Associate Judge, dissenting: I agree with the court that we should

not affirm the order concluding that Ms. Evans is disqualified from receiving

unemployment-compensation benefits. In my view, however, the court should

remand the case, as this court did in both of the cases on which the court primarily


(…continued)
employee’s testimony that she quit to take another job after her employer’s
executive director expressed uncertainty about “what was going to happen” after a
second session of the (under-enrolled) class the employee was teaching. Id. at 319.

       Here, by contrast, the ALJ considered the relevant issue and made specific
findings: that CPPH had laid off seven employees; that at the time petitioner
resigned, the shelter where she worked was likely to shut down; that “all of the
employees at the shelter where [petitioner] worked were at risk of being laid off”;
that petitioner “rightfully perceived” that her job was in jeopardy; and that
petitioner “resigned to accept another job in light of the lack of job security.”
Nevertheless, the ALJ concluded that petitioner did not leave her job for good
cause connected with the work — a conclusion that we conclude is legally
erroneous on this record.
                                        12

relies: Beynum v. Arch Training Ctr., 998 A.2d 316 (D.C. 2010), and Cruz v.

District of Columbia Dep’t of Emp’t Servs., 633 A.2d 66 (D.C. 1993). As in those

cases, I think it would be preferable for the ALJ (a) to make additional findings on

disputed and relevant circumstances, such as the precise nature of the discussions

between Ms. Evans and her employer; and (b) to determine in the first instance

whether, in light of those findings, Ms. Evans had good cause to quit, because she

had sufficient reason to believe that she would imminently be laid off. I therefore

respectfully dissent from the court’s decision to reverse the order of the OAH

outright.
