Parker v. McCormick & Schmick’s Seafood

         Submitted June 12, 2019

Page 969

          On Petition for Review of an Order of the Office of Administrative Hearings (DOES-1317-17)

         Jonathan H. Levy, New York, New York, was on the brief for petitioner.

         Before Beckwith and McLeese, Associate Judges, and Nebeker, Senior Judge.

         OPINION

         Nebeker, Senior Judge:

          Petitioner Sarah Parker’s application for unemployment benefits was denied by a District of Columbia Department of Employment Services ("DOES") examiner, a decision that was affirmed by an Office of Administrative Hearings ("OAH") administrative law judge ("ALJ") following a hearing. Before this court, petitioner challenges the ALJ’s finding that she voluntarily quit her job without good cause. Respondent did not file a responding brief. For the reasons discussed below, we reverse and remand for further proceedings consistent with this opinion.

          I.

          Petitioner worked as a full-time server at McCormick & Schmick’s Northwest D.C. location from August 7, 2013, to March 7, 2017. On March 7, petitioner informed her manager that she was quitting, effective immediately. Petitioner said that she quit because of her dissatisfaction with the restaurant’s tip pooling policy.

          Subsequent to quitting, petitioner applied for unemployment benefits. The District of Columbia Unemployment Compensation Act specifies that an applicant will be disqualified from receiving unemployment benefits if she is found to have voluntarily left her employment without good cause, and a D.C. DOES claims examiner found that petitioner’s quitting for dissatisfaction with her employer’s tip pooling policy did not constitute good cause. Petitioner appealed the claims examiner’s decision.

          The ALJ presided over a hearing on September 5, 2017. It was not contested that petitioner voluntarily quit, as petitioner testified, "I did [ ] voluntarily leave my place of employment and it was based on the fact that as servers we make our living on tips and the company took a portion of those tips for our support staff." Petitioner elaborated that her employer "continued to take that money when we did not have said support staff such as a busser or a host and I asked many times to my bosses, to their bosses, why - where does that money go? I had no help." Petitioner said that this tip pooling policy was enforced several days a week during the slower summer period, but at other times of the year it would occur once a week or once a month. Petitioner did not keep her concerns to herself as she testified, "I mentioned it to four or five people all up and down the line and nobody ever really gave me an answer and I felt more and more frustrated and it more and more felt like theft to me." In affirming the claims examiner’s decision, the ALJ concluded in a written order issued on September 25, 2017, that petitioner failed to establish good cause for her voluntary decision to leave her employment. This appeal followed.

          II.

          Our review of a denial of unemployment benefits is limited - although we generally defer to the agency’s construction of a controlling statute or regulation, we must reverse such a decision if the "findings and conclusions are unsupported by ...