Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (ESP-112091-08)
Opinion of the Court PER CURIAM.
Opinion by Senior Judge SCHWELB, concurring in the judgment, at p. 3.
Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
Hernan D. Castro has asked this court to review an order of an Administrative Law Judge (ALJ) of the Office of Administrative Hearings (OAH), issued on June 18, 2009, denying Castro's claim for unemployment compensation. The ALJ found that Castro's employer, Security Assurance Management, Inc. (Security), did not terminate Castro's employment; that both before and after October 26, 2008, Castro's last day of work for Security, Castro had declined work offered to him by his employer; and that because Castro had left his employment voluntarily, he was not entitled to compensation. The ALJ's order reversed an earlier decision by a claims examiner of the District of Columbia Department of Employment Services (DOES), in which the examiner held that Castro had in fact been laid off for lack of work and that he was therefore eligible to receive benefits.
Before this court, Castro first contends that the ALJ abused his discretion in declining to issue a subpoena for a proposed witness. He next asserts, in part on the basis of certain documentary evidence which was not introduced before the ALJ, which is not a part of the administrative record, but which Castro nevertheless included, without objection, in an Appendix to his brief, that the ALJ erred in finding that Castro was not terminated by Security and is therefore ineligible for unemployment compensation.
We conclude, even assuming, solely for the sake of argument, that the requested subpoena should have been issued, that any error in that regard was harmless. We also hold, for the reasons stated in the concurring opinion, that the ALJ's finding that Security did not terminate Castro is supported by substantial evidence and that Castro's Appendix, not being a part of the administrative record, is not properly before us. Accordingly, we affirm.*fn1
SCHWELB, Senior Judge, concurring in the judgment: I agree with the court that the decision of the OAH is supported by substantial evidence in the record and that it should be affirmed. In my opinion, however, two of the issues, one relating to the denial of Castro's motion for a subpoena, and the other concerning Castro's unorthodox (but unopposed) Appendix,*fn2 warrant more detailed discussion. Before reaching these issues, I set forth in greater detail the context in which they arise.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April, 2008, Castro was hired by Security as a Special Police Officer. In late June of that year, Castro was granted a leave of absence to visit his ill father in Peru. He returned to his home in Annandale, Virginia in late September of that year, and he resumed his employment with Security shortly thereafter.
The parties are in agreement that upon his return to the area, Castro worked for two or three days at a warehouse in northeast Washington, filling in for a vacationing employee named Officer McCullen Pitts. The precise dates of this assignment are unclear. Carlos A. Martinez, the Operations Manager for Security, testified that Castro "had an issue with" one of the employees at the warehouse, and that the client asked Security "not to have him back there." Accordingly, some brief period later, Castro was assigned to the Embassy of Saudi Arabia to replace an officer named Charles Arnewt, who was then on compassionate leave for two weeks on account of the death of his daughter.
Between October 13 and October 26, Castro worked at the Saudi Embassy, but the accounts of the two parties diverge as to exactly what occurred. Both Martinez and Nathan S. Rudolph,*fn3 Castro's immediate supervisor at Security, testified that during the second week of this period, Castro stated that he would be unable, on several days, to work the hours requested of him because these hours would conflict with his (unspecified) other job. According to Castro, on the other hand, he worked the full two weeks at the Saudi Embassy, and he did not have any other employment at that time. Castro testified that the sole occasion on which he turned down work occurred before he was assigned to the Saudi Embassy, and that it involved a last-minute request by Rudolph that Castro work at the Embassy of Qatar for a single night because another employee had failed to show up.*fn4
The parties also gave conflicting versions of what happened after October 26, which was Castro's last day of work at the Saudi Embassy. Martinez and Rudolph both testified that Rudolph called Castro twice during the week of October 27 to offer him further work at the Saudi Embassy*fn5 and that Castro "said he couldn't do it." Martinez added that after we call a person, he doesn't respond, and, in addition, he doesn't even give us notice that he - he cannot do our full-time assignment, you know, we didn't call him any more and he didn't call us any more either.
(Emphasis added.) Martinez indicated that "we also [were] upset [with Castro] over these issues," but that nevertheless "we're ...