On Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP104766-06).
The opinion of the court was delivered by: Schwelb, Senior Judge
Submitted January 10, 2008
Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.
Melanie Rhea asks us to review a decision of the Office of Administrative Hearings (OAH) denying her claim for unemployment compensation. The OAH ruled that it lacked jurisdiction because Ms. Rhea's administrative appeal from an adverse decision by a claims examiner of the District of Columbia Department of Employment Services (DOES) was filed one day late. We vacate the decision of the OAH and remand the case to that Office for further proceedings.
On May 14, 2006, Ms. Rhea, who had been employed by Designmark Services, Inc. for fourteen years, was discharged by her employer, allegedly for "stamping unauthorized checks." Ms. Rhea applied for unemployment compensation, claiming that she had been authorized to take the actions for which she was discharged. On June 9, 2006, a DOES claims examiner denied Ms. Rhea's claim on the grounds that she had been discharged for gross misconduct and that she was therefore ineligible for unemployment benefits.*fn1 On June 20, 2006, Ms. Rhea filed an appeal with the OAH.
On July 21, 2006 Ms. Rhea appeared for a hearing before an Administrative Law Judge (ALJ) of the (OAH). No representative of the employer appeared. The ALJ received brief testimony from Ms. Rhea on the question whether her appeal was timely, and she then took the case under advisement.*fn2
On July 25, 2006, the ALJ issued an order dismissing Ms. Rhea's appeal as untimely. The ALJ so ruled because the appeal was filed on June 20, 2006, eleven days after the certificate of service contained in the claims examiner's decision, rather than within ten days of mailing, as required by D.C. Code § 51-111 (b) (2001). The ALJ wrote, (not quite accurately, see page 5, infra), that
[t]he Determination in this case contains a certificate of service that states a copy was mailed "to Appellant/Claimant and Appellee/Employer on June 9, 2006." Therefore, the parties had until Monday, June 19, 2006 (ten calendar days) to file an appeal.
The ALJ concluded that Appellant Rhea's appeal was untimely filed. Appellant testified that she did not receive anything in the mail regarding her unemployment claim, so she went to a Department of Human Services office on Alabama Avenue to inquire. She asserted that she was told that the Determination would be reissued. She contended that when she received the reissued copy in the mail, she filed her appeal by facsimile transmission. Appellant provided no envelope or other documentation corroborating her testimony.*fn3
Ms. Rhea filed a motion for reconsideration, which the ALJ denied on August 17, 2006. Ms. Rhea then petitioned this court to review the decision of the OAH. We vacate that decision and remand for further proceedings consistent with this opinion.
Ms. Rhea has appeared pro se before the DOES and before the OAH, and she continues to represent herself in this court.*fn4 Although she makes some other, legally unpersuasive, arguments in her brief, Ms. Rhea's key contention is that she did not receive the original decision by the claims examiner, that she arranged with a DOES representative to have the decision reissued, that she received the reissued decision on June 19, 2006, that she faxed her appeal on the following day, and that her appeal was therefore timely.*fn5 The employer has not filed a brief in this court.
In dismissing Ms. Rhea's appeal to the OAH as untimely, the ALJ relied on the certificate of service which was contained in the claims examiner's decision and on the "rebuttable presumption that [mail] which [has] been correctly addressed, stamped and mailed [has] been received by the addressee." Brown v. Kone, Inc., 841 A.2d 331, 334 (D.C. 2004) (citations omitted). The ALJ noted, in particular, that "[i]n this jurisdiction, the law presumes that a certificate of ...