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Gardner v. District of Columbia Department of Employment Services

August 26, 1999

BRUCE E. GARDNER, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.



Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Ruiz, Associate Judge

On Petition for Review of a Decision of the District of Columbia Department of Employment Services

Submitted March 9, 199

Petitioner Bruce Gardner challenges a decision of the Department of Employment Services (DOES) denying him unemployment compensation benefits for the period of June 8, 1997 through June 28, 1997, pursuant to D.C. Code § 46-108 (e) (1996), *fn1 because Gardner's lump sum severance payment, representing four weeks of salary, when divided into weekly sums, exceeded the amount of weekly benefits which Gardner would have been otherwise eligible to receive. Gardner concedes that the severance payment was to have represented one month of salary beginning with his May 30, 1997 termination date. However, he contends that because he did not actually receive the severance payment until July 7, 1997, the deduction provided for in § 46-108 (e) was inapplicable, and he was entitled to unemployment benefits for the requested period. Gardner further argues that because § 46-108 (e) is limited to the benefit week in which he actually get the severance payment, he was additionally eligible for unemployment benefits for the period from July 13, 1997 to August 2, 1997. Finally, Gardner asserts that his failure to receive a hearing before the appeals examiner on the merits of his benefits claim denied him due process. We affirm.

I.

Petitioner Gardner is a former attorney for the District of Columbia whose position was terminated on May 30, 1997. His letter of termination stated that Gardner would "receive a lump sum termination payment that will be equivalent to an additional four (4) weeks salary." On June 13, 1997, after still not having received the promised severance payment, Gardner began to file for weekly unemployment benefits, with the first claim effective the week ending June 8, 1997. *fn2 On his benefits application, Gardner indicated that he would receive severance pay equal to $929 per week for the period between May 30, 1997 and June 28, 1997. Gardner actually received the severance payment in a lump sum on July 7, 1997, almost forty days after he was discharged.

On July 28, 1997, Gardner visited the DOES office to inquire as to why he had not received unemployment benefits for the month of July. At this time, Gardner signed a fact-finding report which stated:

"[T]he severance pay was for a four week period starting with the May 30, 1997 termination date. I received one check for all the severance pay during the 2nd week in July. I am not entitled to any additional severance pay and I have not received claim forms for unemployment since the latter part of June."

To date I have not received any unemployment benefits. *fn3

On August 7, 1997, the claims examiner issued a decision stating that Gardner was not entitled to receive unemployment benefits for the period between June 8, 1997 and June 28, 1997, because pursuant to D.C. Code § 46-108 (e), eighty percent of Gardner's weekly severance pay exceeded the total weekly benefit amount that Gardner had been eligible to receive ($309), plus twenty dollars. *fn4 Gardner appealed the claims examiner's determination, and a hearing on his appeal was scheduled for September 16, 1997. On that date, the hearing took place as scheduled, but Gardner failed to appear. *fn5

As Gardner did not appear to present any additional evidence in support of his claim, the appeals hearing examiner based her decision solely on the claims record and affirmed the claims examiner's determination that the lump sum severance payment had rendered Gardner ineligible to receive unemployment benefits between June 8, 1997 and June 28, 1997. After receiving the September 17, 1997 appeals decision, Gardner mailed a letter to the Office of Appeals and Review (OAR) on September 20, 1997 contesting the appeals hearing examiner's decision and requesting a new appeal. Gardner explained his absence from the hearing:

"I inadvertently thought the hearing date was Friday, September 19th as opposed to Tuesday, September 16th. I realized my error on Thursday, September 18th and brought it to the attention of your office. I was informed the decision had been rendered and I would have any [sic] opportunity to have a new appeal date set."

By proposed final decision dated October 17, 1997, OAR affirmed the decision of the appeals examiner, concluding that her findings of fact and Conclusions of law were supported by substantial evidence in the record. After receiving objections to the proposed final decision from Gardner, *fn6 OAR issued a final order affirming the appeals examiner's decision, concluding that Gardner had received proper notice of the hearing, and that his ...


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