Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (ESP109276-08).
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and N EBEKER, Senior Judge.
Petitioner, Nursing Unlimited Services, Inc., appeals an Office of Administrative Hearings (OAH) final order reversing a Department of Employment Services (DOES) claims examiner's determination that Brittany S. Carrington was ineligible for unemployment benefits. Petitioner argues on appeal that (1) the Administrative Law Judge (ALJ) abused his discretion in denying petitioner's motion to dismiss, (2) the ALJ abused his discretion in denying petitioner's motion for a continuance of the OAH hearing, and (3) the DOES claims examiner's determination was supported by substantial evidence. We disagree and affirm.
Carrington filed for unemployment after she was fired by petitioner. A DOES claims examiner denied unemployment benefits to Carrington because her "repeated failure to report to work" constituted misconduct. Carrington appealed to OAH, raising the issue "whether . . . Nursing Unlimited Services, Inc., discharged [Carrington] for cause constituting 'misconduct.'" OAH served a Scheduling Order and Notice of In-Person Hearing on the parties on January 15, 2008, setting the hearing for February 1, 2008. Neither Carrington nor petitioner were present at the hearing on February 1, but petitioner's counsel entered an appearance.At the hearing, petitioner's counsel requested dismissal because Carrington had failed to appear,and then requested a continuance because he "had insufficient opportunity to prepare," owing to his participation in a separate trial.The ALJ denied both requests,noting that petitioner's counsel did not establish good cause for a continuance.
In his final order, the ALJ cited D.C. Code § 51-109 (2001), providing that an individual who meets certain requirements will ordinarily receive unemployment benefits, as well as D.C. Code § 51-110 (2001), which contains exceptions to the aforementioned provision, including employee misconduct. The ALJ, recognizing that the employer bears the burden of proof, by a preponderance of the evidence, that an employer has discharged an employee for misconduct, see McCaskill v. District of Columbia Dep't of Employment Servs., 572 A.2d 443, 445 (D.C. 1990) (internal citation omitted), reversed the DOES claims examiner's determination because there was "no evidence in the record establishing misconduct or any other reason for disqualification."
With regard to petitioner's request for a continuance, the ALJ noted that information included with the Scheduling Order for the hearing before OAH stated that any request for a continuance should be filed in writing "at the earliest possible time" and should "clearly state good cause for a change," as well as "when and how [the party] tried, in good faith, to contact the other side to ask that party to agree to the change."The ALJ further noted:
Employer's counsel . . . did not seek a continuance in this matter in the days preceding the scheduled hearing date. Nor did [counsel] seek a continuance of the matter when the hearing commenced. It was not until after I explained that it was Employer's burden to establish misconduct . . . and noted that there were no Employer witnesses present at the hearing to do so, that [counsel] for the first time requested a continuance in the matter. [Counsel] stated that he was ill-prepared to go forward in the matter, that he had been in trial since the beginning of the week, and that he had not had sufficient time to discuss the case with his client. [Counsel] did not explain on the record why he failed to bring his witnesses to the hearing nor why he did not seek a continuance at some point prior to my discussion of the burden of proof in this matter. [Counsel] also did not state whether he contacted the opposing party to seek her consent for a continuance of the matter and I presume, given the timing of [counsel's] request, that he did not.
The ALJ, in denying petitioner's request for a continuance, concluded that "an attorney's failures to properly prepare for the hearing, and to ensure that his witnesses are present at the hearing, do not constitute good cause to continue the hearing." The ALJ then reversed the DOES claims examiner's determination and ordered that Carrington was eligible for unemployment compensation.
Petitioner argues that Carrington's failure to appear before OAH constituted an "abandonment" of her appeal that mandated dismissal. We have held, however, that although "a claimant's failure to appear at a hearing where he or she bears the burden of proof might lead to dismissal for failure to meet that burden, a failure to appear at a hearing where the opposing side bears the burden of proof is no different from appearing and declining to testify." McCaskill, supra, 572 A.2d at 446 (footnote omitted). Petitioner's reliance on Stancil v. District of Columbia Rental Hous. Comm'n is therefore misplaced. 806 A.2d 622, 625 (D.C. 2002) (upholding Rental Housing Commission's dismissal of landlord's appeal of Rent Administrator's decision in favor of tenant based on "the proposition that dismissal is an appropriate sanction when an appellant is not diligent about prosecuting his appeal."); see also King v. District of Columbia Water & Sewer Auth., 803 A.2d 966, 970 (D.C. 2002) ("[P]petitioner's failure to appear at her hearing [to contest Water and Sewer Authority's conclusion that challenged charge was valid and payable] is akin to a plaintiff's nonappearance at trial, which we have characterized as 'one of the most serious lapses a plaintiff can commit.'") (quoting Van Man v. District of Columbia, 663 A.2d 1245 (D.C. 1995)). Because "dismissal without addressing the merits is improper" where the burden of proof is not on the party who fails to appear, as is the case here, the ALJ did not abuse his discretion in denying petitioner's motion to dismiss. McCaskill, supra, 572 A.2d at 446 n.3.*fn1
Similarly, we conclude that the ALJ did not abuse his discretion in denying petitioner's motion for a continuance. As we have noted, "A request for a continuance is addressed to the sound discretion of an agency . . . and will be set aside only for an abuse of discretion." King, supra, 803 A.2d at 968 (quoting Murphy v. A.A. Beiro Constr. Co., 679 A.2d 1039, 1043 (D.C. 1996) (per curiam)); see also Ammerman v. District of Columbia Rental Accommodations Comm'n, 375 A.2d 1060, 1063 (D.C. 1977) ("There is no doubt that continuances can upset an agency's attempts to control its workload and to dispose of the cases before it expeditiously."). In reviewing an ALJ's decision to deny a request for a continuance we will consider "the reasons for the request for continuance, the prejudice that would result from its denial, the parties['] diligence in seeking relief, any lack of good faith, and any prejudice to the opposing party." King, supra, 803 A.2d at 968 (quoting Murphy, supra, 679 A.2d at 1043). The ALJ's reasoning, noted above, is far from an abuse of discretion, but rather reflects OAH's authority and duty ...