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08/30/91 ABRAMSON ASSOCIATES v. DISTRICT COLUMBIA

August 30, 1991

ABRAMSON ASSOCIATES, INC., PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. MICHELLE BOYD, INTERVENOR



Petition for Review of an Order of the District of Columbia Department of Employment Services

Ferren and Farrell, Associate Judges, Belson, Senior Judge.*

The opinion of the court was delivered by: Belson

Petitioner Abramson Associates, Inc., (AAI) contests a decision by the Director of the Department of Employment Services (DOES) determining that AAI discharged intervenor Michelle Boyd (Boyd) from employment in retaliation for her attempt to claim worker's compensation under the District of Columbia Worker's Compensation Act (the Act), D.C. Code §§ 36-301 to 36-345 (1988), and ordering that AAI reinstate Boyd to her former position and pay her back wages and interest on accrued benefits. We sustain the finding that Boyd attempted to claim compensation under the Act when she orally informed AAI that she suffered from work-related stress and that she wished to take leave to recuperate. We cannot, however, sustain the final order of the Department because the Hearing and Appeals Examiner failed to indicate whether she placed the burden of proceeding on AAI after Boyd had presented a prima facie case or whether she placed the ultimate burden of persuasion on AAI. If the former, then the Examiner erred in ruling that AAI had failed to carry that burden; if the latter, the Examiner misallocated the burden. Accordingly, we reverse and remand for further proceedings. *fn1

I.

Boyd supervised AAI's word processing department with a staff of four. In March of 1987, Boyd began to suffer from symptoms of stress, including sleeplessness and headaches, due to the work pressure of supervising a department that was understaffed as the result of a layoff and the resignations of three employees. Boyd sought treatment in July 1987 from Dr. Yussef Akbari, her personal doctor, who referred her in mid-August 1987 to Dr. Barton Kraff, a psychiatrist, who treated her for depression. Boyd visited Dr. Kraff initially on August 21st, followed by psychotherapy sessions on August 24th and 27th and September 1st, 8th, and 14th. Dr. Kraff informed Boyd that her symptoms were work-related and recommended that she change jobs or take some time off. At the August 27th session, Dr. Kraff gave Boyd a letter to show to AAI documenting that she was being treated for depression with medication and psychotherapy. Upon returning to work that day, Boyd showed the letter to her supervisor Richard Dufek, told him that her depression was work-related, and requested time off. Dufek, however, persuaded Boyd not to take any time off. On that same day, Dufek requested another employee to calculate Boyd's accrued leave, which showed 88.25 hours of vacation time available and 5.5 hours of sick leave available. At the end of the next day, August 28th, Dufek fired Boyd. Dufek told Boyd on August 31st that she was fired because of her bad attitude and poor management skills.

As early as November 1986, AAI began to notice that Boyd's performance had begun to deteriorate. Dufek testified that he noticed that Boyd had developed a bad attitude shortly after a non-work related injury in November 1986. Abramson testified that he thought Boyd's attitude changed at about the time that he asked her to lay off one of the employees in her department. He, however, had difficulty remembering any specific incidents, did not remember receiving more or different complaints about Boyd than before, and did not remember who supervised Boyd during that period.

A memorandum of August 4th to Boyd from Steve Blum, her supervisor before August 18th, noted for the first time that others were complaining about her attitude and stated that there must be immediate improvement and that her progress should be evaluated on September 1st. An August 21st memorandum to Boyd from Dufek reiterated that Boyd's bad attitude was not justified by the pressure she was under and requested her to prepare a report by the end of the quarter comparing AAI's word processing department to at least three other firms, to place an ad for a part time word processing employee, and to prepare a memorandum by August 27th outlining the strengths and weaknesses of the person whom she had assigned to be her backup. The next memorandum in Boyd's file informed personnel that she had been terminated as of August 28th.

Although Dufek did not prepare a memorandum of his August 28th meeting with Boyd at which he had fired her, he did prepare two memoranda of his August 31st meetings with Boyd at which he had explained to her that she had been fired because of her inability to manage, her failure to do any of the items requested in his August 21st memorandum by their August 27th meeting, and her increasingly bad attitude. Boyd did not receive either of the August 31st memoranda.

The hearing examiner found that Boyd was a "good employee," that her personnel file made no mention of any problem with her work attitude until August 4th, and that the August 4th memorandum made no mention of termination. She credited Boyd's testimony that Boyd informed AAI on August 27th that Dr. Kraff was treating her for work-related stress but did not credit Dufek's testimony that AAI fired Boyd on August 28th because of her bad attitude and bad management skills. The hearing examiner further noted the internal inconsistency between Abramson's testimony that Boyd had an attitude problem and his inability to recall when it started or any specific manifestations of it, and also stated that Boyd's personnel file made no mention of any problems. From the evidence presented, the hearing examiner determined that Boyd had shown that AAI's decision to fire her was motivated by animus and that AAI had failed to meet "its burden of showing a non-retaliatory reason for the discharge" and had "not offered sufficient credible evidence to justify claimant's termination." The Director of DOES affirmed, and adopted and incorporated by reference the compensation order of the Hearing and Appeals Examiner.

II.

To establish a prima facie case for retaliatory discharge under D.C. Code § 36-342 (1988), an "employee must prove that she made or attempted to make a claim for worker's compensation" and that her employer discharged her in retaliation for making the claim. Lyles v. District of Columbia Dep't of Employment Servs. (Lyles II), 572 A.2d 81, 83 (D.C. 1990). AAI contended that Boyd never attempted to make a claim before she was fired because she had not formally filed a claim and she was unaware of her rights to claim compensation under the Act. The hearing examiner found that Boyd had attempted to file a claim when she reported her work-related stress to AAI. The Director agreed. When we review a decision of the Director, we defer to the Director's interpretation of the Act unless it is "unreasonable in light of the prevailing law, inconsistent with the statute, or plainly erroneous." Dyson v. District of Columbia Dep't of Employment Servs., 566 A.2d 1065, 1067 (D.C. 1989) (citation omitted).

Recently, we made clear that an employee's attempt to make a claim under the Act is neither confined to the formal filing of a worker's compensation claim nor limited to claims for money. Lyles II, supra, 572 A.2d at 83; Dyson, supra, 566 A.2d at 1067. We noted, nevertheless, that not "every act by an employee ostensibly in pursuance of compensation benefits constitutes a claim or attempted claim for compensation." Dyson, supra, 566 A.2d at 1067. *fn2 In this instance, Boyd orally informed AAI that she suffered from work-related stress and requested time off to recuperate. *fn3

It is frequently the case that the first step an employee takes in attempting to claim worker's compensation is to report a work-related injury to his or her employer, and often that initial report will be oral. In fact, the Act requires that an employee notify his or her employer (as well as the Department of Employment Services) in writing of a work-related injury within thirty days of that injury, D.C. Code § 36-313 (a)-(b) (1988), and then permits the employee to file a formal claim with the Department of Employment Services within a period of one year following the injury. D.C. Code § 36-314 (a) (1988). An employee's failure to notify her employer of a work-related injury in writing does not automatically preclude her from receiving worker's compensation. The Act permits an employee to claim compensation even though she has failed to provide her employer written notice of her work-related injury "if the employer . . . had knowledge of the injury . . . and its relationship to the employment and . . . has not been prejudiced by failure to give such notice." D.C. Code § 36-313 (d)(1) (1988).

Although Boyd had not given written notification to AAI of her work-related stress prior to her termination, she had shown Dufek the letter from Dr. Kraff that stated that he was treating her for depression and she had told Dufek that her depression was work-related. The firing of an employee for informally reporting an injury, as Boyd did in this case, would deter employees from utilizing the worker's compensation system in much the same manner as would the firing of an employee for formally reporting an injury. Thus, the recognition of an employee's informal reporting of her own work-related injury as an attempt to claim compensation, although a fairly expansive interpretation of the Act, see Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 655 (D.C. 1987) (Act to be construed liberally for employee's benefit), advances the purpose of the Act by preventing employers from taking action in retaliation for an employee's use of the worker's compensation system. Cf. Buckner v. General Motors Corp., 760 P.2d 803, ...


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