Petition for Review of a Decision of the District of Columbia Department of Employment Services (98-1947-UI)
Before Terry, Schwelb, and Washington, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Submitted December 12, 2000
Concurring opinion by Associate Judge Schwelb, with whom Associate Judge Washington joins.
Petitioner, Karen Branson, seeks review of an order of the Department of Employee Services (DOES) affirming an appeals examiner's decision that Ms. Branson was ineligible for unemployment compensation. Petitioner presents four arguments. First, she contends that the appeals examiner erred by failing to address her claim that she left work because of an unhealthy working environment; second, she argues that the decision that she was ineligible for unemployment compensation was not supported by substantial evidence; third, she asserts that the appeals examiner erred by making a credibility determination without holding a hearing for that purpose; and fourth, she maintains that the decision of the Office of Appeals and Review (OAR) affirming the examiner's decision exceeded the OAR's proper scope of review. We agree with petitioner's first contention and remand the case to DOES for further proceedings.
Ms. Branson was hired as an attorney at Cooper and Associates by Algernon Cooper on January 12, 1998. She voluntarily resigned about five months later, on June 8, because she was continually exposed to cigarette smoke emanating from Mr. Cooper's office. Several days later Ms. Branson filed a claim for unemployment benefits, stating her reasons for resigning as follows:
I am allergic to cigarette smoke. I informed my employer of this on more that one occasion and he continued to smoke. I did not know he was a smoker when I was hired. I could not continue to work in an unhealthy environment. *fn1
A DOES claims examiner disqualified Branson from benefits because she had resigned voluntarily and without good cause. See D.C. Code § 51-110 (a) (2001). The claims examiner found that Branson had quit voluntarily "due to health reasons" and that she had "failed to advise [her] employer of [her] medical condition or provide substantiating medical documentation."
Branson appealed from that decision and requested a hearing before an appeals examiner. In her request, she claimed that Mr. Cooper's smoking was "in violation of the law and creates an unhealthy work environment for all employees." When Branson testified at the hearing, she was asked by her employer's counsel on cross-examination whether she had ever presented Mr. Cooper with a notice from her doctor. Branson's counsel objected:
Mr. Mitchell: I have to object. This is not a medical case, this is an unsafe working condition.
Hearing Examiner: That's true, Mr. Mitchell. But you know yourself, when you leave available work, if you're stating that it's work-related, then she should have some type of medical documentation.
Mr. Mitchell: . . . [U]nsafe working conditions do not have to do with medical documentation. That ...