On Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP100114-04).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before SCHWELB, REID, and FISHER, Associate Judges.
On January 27, 2005, an Administrative Law Judge (ALJ) of the District of Columbia Office of Administrative Hearings (OAH) dismissed as untimely the appeal of Kidd International Home Care, Inc. (Kidd International or the employer) from the decision of a Claims Examiner of the District of Columbia Department of Employment Services (DC DOES) holding that Kidd International's former employee, Eddie L. Dallas, Jr., was eligible for unemployment compensation. Kidd International contends that it never received notice of the Claims Examiner's determination, and that the evidence that notice of that ruling was sent to Kidd International was insufficient. We agree and reverse.
Although the record before us is somewhat sparse, it appears that on August 8, 2004, Mr. Dallas filed a claim with DC DOES for unemployment compensation benefits, contending that he had been discharged by the employer. In response to DC DOES' "Request for Separation Information," Mikeyla Kidd, the employer's Director of Human Resources,*fn1 advised that Mr. Dallas had refused to perform certain tasks assigned to him by his supervisor, and that he had informed the supervisor that he had taken another job and was terminating his employment with Kidd International. An employee who voluntarily quits his employment without good cause connected with the work is disqualified from receiving unemployment compensation. D.C. Code § 51-110 (a) (2001).
Kidd International represents in its brief that it received no response to the information that it had provided to DC DOES, and Ms. Kidd believed that the matter had been resolved. On October 13, 2004, however, Kidd International received from DC DOES an "Unemployment Compensation Benefit Charge Statement." In that document, the agency informed the employer that the employer was responsible for unemployment benefits to Mr. Dallas in the amount of $565.15. According to Ms. Kidd, this was the first notice received by the employer that Mr. Dallas had been found to be eligible to receive benefits. On the same day that she received this Statement, Ms. Kidd wrote a letter to OAH in which she informed that Office that the employer wished to appeal the award "because Mr. Dallas was not terminated or urged to relinquish his position, but quit of his own volition."
On November 4, 2004, an ALJ issued an Order to Show Cause on behalf of OAH directing the employer to explain in writing why its appeal should not be dismissed as untimely. The Order to Show Cause stated, in pertinent part:
[I]t does not appear that Appellant's request for a hearing was timely filed with [DC DOES] within ten days of service of the determination of the claims examiner, during the period of time when [DC DOES] had exclusive jurisdiction to hear such appeals.
On November 17, 2004, Ms. Kidd responded to the Order to Show Cause with a detailed letter in which she represented, inter alia, that Kidd International did never and as of this date has never received any formal written decision by the hearing examiner regarding the case of Eddie Dallas. The first notice that Kidd International received indicating that Mr. Dallas had been awarded unemployment benefits came by way of an Unemployment Compensation Benefits Charge Statement (attachment 1) received on October 13, 2004. Upon the discovery that Mr. Dallas had been granted unemployment compensation I immediately contacted the Unemployment Office via telephone and was instructed to write a hearing request letter and send it to the Office of Administrative Hearings. I complied with those instructions and drafted an appeal letter on the 13th, which was received by your office on October 15, 2004 via certified mail. Had Kidd International been made aware of the Department's decision to award benefits prior to October 13, 2004 an appeal would certainly have been filed in a "timely manner."
On January 27, 2005, an ALJ issued a Final Order on behalf of OAH in which she dismissed the employer's appeal as untimely. The ALJ noted that "the ten-day period for appeals under the Unemployment Compensation Act is jurisdictional, and failure to file within the period prescribed divests an administrative tribunal of jurisdiction to hear the appeal." (Ellipsis and brackets omitted.)*fn2 With respect to the employer's contention that its appeal was not filed within ten days of the Claims Examiner's decision because it had received no notice of that decision, the ALJ stated:
Appellant submits that it did not receive the Claims Examiner's determination. However, the determination contains language that it was "mailed to the employer named herein at the above address on 09-07-04." The determination was mailed to the same address Appellant has on its letterhead.*fn3
This notation, according to the ALJ, was sufficient to trump the employer's claim of non-receipt.
The employer filed a timely petition for review, submitted a brief to this court, and presented oral argument. Mr. Dallas did not participate in the ...