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Frausto v. United States Dep't of Commerce

June 14, 2007

CAROL MONICA FRAUSTO, PETITIONER,
v.
UNITED STATES DEPARTMENT OF COMMERCE, RESPONDENT.



Petition for Review of a Decision of the Office of Administrative Hearings (ESP100988-05).

The opinion of the court was delivered by: Wagner, Senior Judge

Argued May 22, 2007

Before REID and BLACKBURNE-RIGSBY, Associate Judges,and WAGNER, Senior Judge.

Petitioner, Carol Monica Frausto, petitions for review of a decision of the Office of Administrative Hearings (OAH) denying her motion for relief from a final order reversing a decision of the District of Columbia Department of Employment Services (DOES) awarding her unemployment compensation. She argues that the OAH abused its discretion in denying the motion. We reverse and remand the case for further proceedings.

I. Factual and Procedural Background

During 2004, Frausto was employed as a program manager in a division of the Office of the General Counsel at the Department of Commerce (the employer) when she began an extended period of absence from work. On January 6, 2005, Frausto's supervisor, Stuart Kerr, sent her a letter notifying her officially that he proposed to remove her from her position and that her leave status was being changed to AWOL. In explanation of the proposed action, Kerr outlined the following circumstances. On July 12, 2004, he had sent Frausto a letter informing her that she was placed in an unpaid status as of July 9, 2004 because she had exhausted all of her annual and sick leave. On July 22, 2004, he had sent her another letter requesting a written request for leave without pay and medical documentation supporting her absence up to that time. On August 2, 2004, Kerr received from Frausto an undated Office of Personnel Management (OPM) form 71 requesting a combination of accrued annual leave and sick leave and leave without pay and invoking her entitlement to leave for a serious medical condition under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (2001) (FMLA). That same day, Kerr sent Frausto a form to be completed by her physician. On August 12, 2004, he sent Frausto another letter stating that she was entitled to up to twelve administrative work weeks of unpaid leave for a serious medical condition and approving her leave under the FMLA, subject to his receipt of the medical documentation. He also enclosed another form for her physician's certification. On August 23, 2004, Frausto faxed to the agency's Office of Human Resources Operations thirty-two pages of documents, but she did not include a medical certification for her absence since August 2, 2004. Kerr sent Frausto letters on September 10, 2004 and October 23, 2004 reminding her of the requirement that she submit medical documentation. In the letter of September 10th, he warned her that her status could be changed to AWOL and disciplinary action initiated which could include her removal from Federal service. In his January 6th letter to Frausto, Kerr stated that Frausto had failed to provide the medical documentation and therefore, he had changed her leave status from FMLA leave without pay to AWOL beginning August 2, 2004.

The employer acknowledged that on January 19, 2005, Frausto sent a letter to its Administrative Officer attaching a letter dated January 6, 2005 from Dr. Adam Lowery in which he stated that Frausto had been a patient under his care at the Psychiatric Institute of Washington D.C. from June 5, 2004 to June 18, 2004 and from July 12, 2004 to July 19, 2004 until her discharge, but that he had not evaluated her since. The agency adopted Kerr's recommendation to terminate Frausto's employment effective February 11, 2005 and notified her by letter dated February 2, 2005. The letter stated that although Frausto's prior work record was a mitigating factor, it was outweighed by the seriousness of the misconduct. The agency referenced as mitigating circumstances Frausto's eight years of satisfactory government service and the lack of any prior disciplinary record.*fn1

Shortly before official notification of her termination, Frausto applied for unemployment compensation through the DOES. The "Determination by a Claims Examiner" dated January 31, 2005 found Frausto eligible for benefits and that "[m]isconduct had not been established." The reasons given for that determination were as follows:

Claimant is in a L.W.O.P. status from her job as Programmer. Claimant has a[n] EEO situation with the agency and employer has informed her not to report to work. Employer instituted claimant[']s separation, therefore, no misconduct established.

The employer appealed the Claims Examiner's determination to the OAH and requested a hearing. OAH entered an order scheduling a hearing on March 2, 2005 at 9:30 a.m. The order and notice of the hearing stated that "[f]ailure of a party to appear at the hearing may result in a default, dismissal, or other unfavorable outcome." It also stated that "[a] written request for postponement must be filed with the Office of Administrative Hearings in accordance with OAH Rule 2812 (1 DCMR 2812) at the earliest possible time, after making a good faith meaningful effort to contact the opposing party and asking for that party's consent to the postponement."

Frausto did not appear at the scheduled hearing, and the Administrative Law Judge (ALJ) announced that the case would proceed in her absence.*fn2 Kerr was the employer's only witness at the hearing. On April 18, 2005, OAH issued its decision reversing the Claims Examiner's determination and finding Frausto ineligible for unemployment benefits. The ALJ found that the agency had "met its burden of demonstrating that [Frausto] engaged in misconduct rising to the level of gross misconduct by disregarding her obligation to [the employer] and standards of behavior, which an employer has a right to expect of its employee." On May 5, 2005, petitioner submitted a motion for relief from OAH's final order and a request for a hearing in which she explained that she had not attended the scheduled hearing because there had been a fire in her home on February 25, 2005 that required her to be taken to the hospital for treatment of smoke inhalation and prevented her from living in her home until March 2, 2005, the scheduled hearing date. Further, Frausto stated that she had telephoned the clerk's office on the morning of the hearing to report that she was unable to attend and to request that the hearing be rescheduled. On August 17, 2005, the OAH denied Frausto's motion for relief from its final order. In the order denying the motion, OAH acknowledged that if credited, the circumstances presented "[are] almost universally good cause justifying continuation of a trial date," if made seasonably. The ALJ concluded, however, that Frausto's request was not made seasonably and that she did not provide a basis for a finding of good cause to excuse her failure to appear. Frausto filed a petition for review in this court.

II. A. Applicable Legal Principles

Frausto argues that the OAH abused its discretion in denying her request to reopen the case under its rule that is comparable to Super. Ct. Civ. R. 60 (b). She contends that in denying her relief, the OAH failed to undertake the necessary factual inquiry or to consider all relevant factors.*fn3 The employer responds that Frausto failed to show that her non-appearance resulted from excusable neglect and that she has a meritorious defense.

Section 2833.2 of 1 DCMR Chapter 28, applicable in proceedings before the OAH, is comparable to Super. Ct. Civ. R. 60 (b). Section 2833.2 provides, in pertinent part, that the administrative court may relieve a party . . . from a final order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or . . . any other reasons justifying relief from the operation of the final order. Relief under this ...


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