BEFORE: *Washington, Chief Judge; Ruiz, Reid, Glickman, Kramer, *Fisher, Blackburne-Rigsby, Thompson, and Oberly, Associate Judges; *King, Senior Judge.
On consideration of respondent's petition for rehearing or rehearing en banc, and petitioner's consent motion for leave to file the lodged response, it is
ORDERED that the motion is granted and the Clerk is directed to file the lodged response to the petition. It is
FURTHER ORDERED by the merits division* that the petition for rehearing is denied; and it appearing that the majority of the judges of this court has voted to deny the petition for rehearing en banc, it is
FURTHER ORDERED that the petition for rehearing en banc is denied.
Senior Judge King would grant the petition for rehearing.
Associate Judges Ruiz, Kramer, and Oberly would grant rehearing en banc.
OBERLY, Associate Judge, dissenting, with whom RUIZ and KRAMER, Associate Judges, join: I write separately to explain why I dissent from the denial of rehearing en banc.
Patricia King, a hearing-impaired janitorial worker, voluntarily quit her job in the eighth month of a high-risk pregnancy that had already caused her to exhaust her entire 16 weeks of statutory Family Medical Leave, pursuant to a medically-approved absence, by the sixth month of her pregnancy. The Office of Administrative Hearings affirmed a claims examiner's award to King of unemployment benefits pursuant to D.C. Code. § 51-110 (a) (2006), finding that she left her job "for good cause connected with the work." Id. A majority of a panel of this court reversed the award of benefits, holding that King's employer could not have known that her decision to quit her job in the eighth month had anything to do with complications of her pregnancy because King did not provide her employer with a second medical statement from her doctor sufficient to give the employer notice that her work gave her cause for resigning her job. The court has strayed too far from the requirement that the statute be "construed broadly to accomplish the legislative and statutory intent of minimizing the economic burden of unemployment." Chimes District of Columbia, Inc. v.King, 966 A.2d 865, 871 (D.C. 2009) (King, Senior Judge, dissenting) (citing Thomas v. District of Columbia Dep't of Labor, 409 A.2d 164, 171 (D.C. 1979)).
Our court has previously recognized, in Bublis v. District of Columbia Dep't of Employment Services, 575 A.2d 301 (D.C. 1990), that a worker who quits her job voluntarily because of illness or disability caused or aggravated by her work does not lose her entitlement to unemployment benefits simply because the "medical statement" she provides her employer does not meet requirements of code pleading. Rather, it is sufficient if the employer is provided enough information "to require it to assume the duty of inquiring further" into the circumstances of the employee's condition. Id. at 304. As we said in Bublis, the requirement for "medical documentation" is a "potential snare for the unwary employee, and for that reason basic fairness dictates that at some point the party assumed to have greater knowledge of the regulatory scheme must bear the responsibility of confirming the nature and cause of the illness." Id. (emphasis in original). The ALJ did no more than hold that that point had been reached in this case.
This is not simply a fact-bound question on which reasonable persons could disagree, and hence unworthy of en banc review. Rather, the conflict between the result reached by the panel majority in this case and the burden-shifting rule established in Bublis casts a cloud of uncertainty over the proper resolution of unemployment compensation claims that will befuddle employers and employees alike, not to mention the cadre of Claims Examiners and ALJs who must apply our court's decisions to the many cases they must decide each year, often under time pressures dictated by the exigent circumstances confronting those who find themselves facing the harsh reality of unemployment. On the facts of this case, the panel's plenary review contravenes the long-established rule that our court reviews the administrative decision below applying the highly deferential "substantial evidence" standard. 966 A.2d at 868.
There were ample facts in this case to permit the ALJ reasonably to conclude that the employee presented sufficient evidence to trigger Bublis' burden-shifting rule. Prior to the termination of her employment, King was a custodian whose job required prolonged standing, walking, bending, lifting and stooping. Several weeks into her pregnancy, King developed complications and was classified as a "high-risk" patient. Based on her obstetrician's advice, King provided the necessary medical documentation to her supervisor to support her request for medical leave. Her employer evaluated her request under its Family Medical Leave policy; that policy not only provided the statutorily required 16 weeks of unpaid leave but also ...