Uzochukwu J. Nwokwu, Petitioner,
Allied Barton Security Service, Respondent.
Submitted March 10, 2016
Petition for Review from the Office of Administrative
A. Reiser, with whom Jacob Schuman, and Jonathan H. Levy,
Legal Aid Society of the District of Columbia, were on the
brief for petitioner.
Blackburne-Rigsby [*] and Easterly, Associate Judges, and
Reid, Senior Judge.
Easterly, Associate Judge
Petitioner Uzochukwu Nwokwu seeks review of a decision by an
Office of Administrative Hearings (OAH) Administrative Law
Judge (ALJ) determining that Mr. Nwokwu was ineligible for
unemployment benefits. The ALJ concluded Mr. Nwokwu had
voluntarily quit his job with his employer, Allied Barton
Security Services, when he was removed from an assignment at
a third party location and failed to timely contact Allied
Barton for a new one. The ALJ reasoned that Mr. Nwokwu
"had a duty to take steps to preserve his employment,
" and that he had breached this duty with his inaction.
reverse. Under our employment benefits statute, which we
interpret in favor of awarding benefits in light of its
humanitarian purpose, a claimant is presumed to have left his
job involuntarily unless the employer proves otherwise. To
carry this burden, the employer must present evidence that
the former employee affirmatively acted to end the employment
relationship, or at least affirmatively acted in such a way
that his desire to end the relationship may be reasonably
inferred. It is not enough for an employer to show that a
claimant precipitated his termination by his failure to do
work or make himself available to do work. Rather, it must be
apparent that the claimant actually, voluntarily,
quit. Because Allied Barton did not prove that Mr.
Nwokwu voluntarily quit his job-the only theory of
ineligibility it pursued before OAH-we reverse and remand the
case to OAH with directions to award the unemployment
compensation benefits due to Mr. Nwokwu under the law.
Nwokwu was employed by Allied Barton, a security services
company. In August 2012, he was assigned to work at a
building occupied by the Federal Deposit Insurance
Corporation (FDIC). A year later, on August 7, 2013, Allied
Barton removed Mr. Nwokwu from that work site after a
supervisor reported that he had been sleeping at his
post. What happened next is subject to some
dispute, not only because Mr. Nwokwu and Allied Barton gave
differing accounts, but also because Allied Barton took
inconsistent positions in the course of litigating Mr.
Nwokwu's claim for unemployment benefits.
Barton's initial position before a Department of
Employment Services (DOES) claims examiner was that Mr.
Nwokwu was ineligible for benefits because it had
"discharged" him from its employ for misconduct
after the sleeping incident. But when Mr. Nwokwu challenged
the determination denying him benefits on that basis and
requested a hearing by an OAH ALJ, Allied Barton provided a
different justification for Mr. Nwokwu's ineligibility:
it claimed that, after it notified Mr. Nwokwu that he could
no longer work at the FDIC work site, he voluntarily quit by
failing to timely contact Allied Barton, as instructed, for a
support of this narrative, Allied Barton presented testimony
from one witness, its project manager at the FDIC worksite,
Barry Leese. Mr. Leese testified that Mr. Nwokwu "was
notified to contact our HR [Human Resources] Department to
look for other positions he may be able to fulfill." Mr.
Leese did not "personally" communicate this message
to Mr. Nwokwu, but he identified a
"Disciplinary/Counseling Statement" representing
that, after the sleeping incident, Mr. Nwokwu had "been
instructed to contact HR/recruiting to determine suitability
for placing at another site." The signature line for Mr.
Nwokwu on the statement was blank. The statement did not
specify a required timeframe for reporting or a point of
response to an inquiry from the ALJ about whether there was a
"deadline where [an employee] is considered [to have]
abandoned" his position at Allied Barton, Mr. Leese
testified that "[t]he rule of thumb is three days."
But the excerpts of its policy manual that Allied Barton put
into evidence did not memorialize this "rule of thumb,
" and Allied Barton presented no evidence that Mr.
Nwokwu had notice of this alleged rule.
the proper point of contact at HR, Mr. Leese testified that
Mr. Nwokwu should have called Allied Barton's recruiter,
Cory Plummer. Mr. Leese was asked how he, a project
supervisor at the FDIC worksite, knew that Mr. Nwokwu had not
in fact contacted Mr. Plummer. Mr. Leese indicated that he
did not know but only inferred that Mr. Nwokwu had not done
so because he never received a notification from HR that Mr.
Nwokwu was being transferred to another worksite.
Leese testified that Allied Barton next heard from Mr. Nwokwu
on October 7, 2013 when Mr. Nwokwu called Amanda Gaudard in
Allied Barton's HR department. Mr. Leese read into the
record an email Ms. Gaudard had sent Mr. Leese memorializing
the call and asking him to advise her about Mr. Nwokwu's
Mr. Nwokwu called this afternoon inquiring about returning to
work from leave. However, he is active in the system with no
absences entered for FMLA or leave. He stated he was out for
2 months taking care of business for a relative in another
country. Can you please advise on the status of Mr. Nwokwu?
record is silent as to how Mr. Leese responded to Ms.
Leese acknowledged that the date of submission on the
Termination Change of Status form regarding Mr. Nwokwu's
termination of employment with Allied Barton was January 23,
2014, more than three months after this email
exchange. The form indicates that the reason for Mr.
Nwokwu's "resignation" was "job
abandonment (EE Failed to maintain contact)" and
contains a brief statement in the comment section that
"Officer Nwokwu was removed from this contract for
sleeping and sent to ABSS Corporate for disposition. No
indication Officer Nwokwu followed up with Corporate
appointment." Mr. Leese acknowledged that there was no
specific reference in the Change of Status form to Mr.
Nwokwu's failure to contact Allied Barton between August
7 and October 7, 2013. Allied Barton presented no evidence
that it ever sent this or any other document to Mr. Nwokwu
informing him that his employment with Allied Barton had been
Allied Barton presented its case, Mr. Nwokwu testified and
gave a different account of the conclusion of his employment
relationship with Allied Barton. He testified that on August
7, 2013, he received a call directing him not to report to
the FDIC and to "go to the office and be given
another [work]site." He did this on or about August 10.
But when he went to the office, "nobody at HR knew
anything about [his] case." When Mr. Nwokwu tried to
press for more information, the individual to whom he was
speaking "got angry and pushed [him] out of the - told