Lott v. Washington Legal Clinic for the Homeless

L
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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 18-AA-963

                             DEA C. LOTT, PETITIONER,

                                        v.

          WASHINGTON LEGAL CLINIC FOR THE HOMELESS, RESPONDENT.

                  Petition for Review of the District of Columbia
                        Department of Employment Services
                                 (2018-DOES-853)

(Argued January 16, 2020                             Decided December 31, 2020)

      Dea C. Lott, pro se.

      Mary Lenahan was on the brief for respondent. John Cartwright, admitted
pro hac vice.

      Before BECKWITH and MCLEESE, Associate Judges, and WASHINGTON,
Senior Judge.

      WASHINGTON, Senior Judge: Petitioner, Dea Lott, has asked this court to

review an order of an Administrative Law Judge (ALJ) of the District of Columbia

Office of Administrative Hearings (OAH), denying Ms. Lott’s claim for

unemployment compensation. The ALJ determined that Ms. Lott left her job

voluntarily and failed to meet her burden of demonstrating that her resignation was

for good cause connected with the work. Finding no error, we affirm.
                                         2



                                          I.



      Petitioner was employed as a staff attorney at the Washington Legal Clinic

for the Homeless (the Legal Clinic), a non-profit legal services and advocacy

organization, from July 2014 until April 30, 2018. The Legal Clinic does not have

a traditional hierarchical structure; instead it has a flat structure with a group of

staff attorneys led by an executive director, Patty Fugere. Petitioner asserts that

beginning in early 2017 she was subjected to a series of incidents at the Legal

Clinic which, when considered cumulatively, amounted to racial discrimination

that would have caused a reasonable person in her position to resign.



      The first of these incidents occurred in June 2017, when petitioner contends

that a co-worker, Staff Attorney Scott McNeilly, reprimanded her in front of the

Legal Clinic’s Volunteer Coordinator, Kelsey Vaughn, thereby “undermin[ing]”

petitioner’s perceived authority over her. Petitioner believes race “might have

influenced” Mr. McNeilly’s decision to handle the situation as he did. After

notifying Ms. Fugere of her concerns, petitioner met with Mr. McNeilly a second

time, during which she “walked through [things] for him from [her] perspective,”

at which point Mr. McNeilly became upset and asked petitioner how she could
                                        3

believe his response was motivated by race.        McNeilly later apologized to

petitioner for becoming upset when she questioned him, explaining that at the time

he “was angry that [she] had questioned [his] morality and . . . integrity” but

“wanted to apologize . . . so that [they] could move forward.” 1 The second

incident involved the delay by one month of an anti-racism training for Legal

Clinic employees organized by petitioner. Petitioner alleged this delay was due to

a “lack of mandate or direction from the Legal Clinic’s management that . . . gave

individual staff members the option to decline training dates for any reason.”

The third incident cited by petitioner involved efforts by the management of the

Legal Clinic to repeatedly thwart her efforts to recruit and secure a partnership

between the Legal Clinic and Unity Health Care in Anacostia, which petitioner

again attributed to the “lack of mandate or direction by the Legal Clinic’s

management.”     Petitioner also expressed concern over heightened tensions

between herself, Volunteer Coordinator Kelsey Vaughn, a Caucasian woman, and

triage attorney Akela Crawford, an African American woman. Petitioner contends

that the fact that she is an African American played a role in Ms. Vaughn’s

unprofessional treatment of her especially after she observed petitioner being

reprimanded by Mr. McNeilly. Additionally, petitioner complained of the lack of

      1
          In an email apologizing to petitioner, Mr. McNeilly reiterated that he
thought petitioner was “an excellent lawyer who cares deeply about the clients, the
Clinic, and justice.”
                                         4

an office policy governing promotions and lateral transfers at the Legal Clinic.

Specifically, petitioner claims that she was overlooked for a lateral staff attorney

position, for which she had expressed an interest, in favor of a white co-worker.



      On April 13, 2018, petitioner submitted her letter of resignation to the Legal

Clinic’s executive director. In the letter, she questioned the commitment of the

management and staff to their anti-racism efforts; suggested that she was not given

due respect as a professional and seriously considered for opportunities for

professional growth as part of the Legal Clinic; and stated that her “work at the

Legal Clinic” was impacting her personal health, life, and happiness. Petitioner’s

resignation took effect on April 30, 2018.



      Subsequently, petitioner filed a claim for unemployment benefits. The claim

was denied by a Claims Examiner on April 29, 2018, on grounds that petitioner

had voluntarily resigned from her place of employment. Petitioner sought review

of the Claims Examiner’s decision before an ALJ of the OAH who affirmed the

Claim Examiner’s decision, concluding petitioner voluntarily resigned from her

position at the Legal Clinic and failed to demonstrate that her resignation was for

good cause connected with the work. This appeal followed.
                                        5

                                        II.



      Under District of Columbia law, it is presumed that an unemployed

individual left work involuntarily and is eligible to receive unemployment benefits

“‘unless the claimant acknowledges that the leaving was voluntary or the employer

presents evidence sufficient to support a finding . . . that the leaving was

voluntary.’” Nwokwu v. Allied Barton Sec. Serv., 

171 A.3d 576

, 582 (D.C. 2017)

(quoting 7 DCMR § 311.2–.3). An employer meets its burden of showing that an

employee voluntarily resigned by demonstrating that the “employee affirmatively

acted to end the employment relationship.”

Id. However, even if

an employee

voluntarily resigns, the employee is still eligible to receive unemployment

insurance benefits if the employee can prove by a preponderance of the evidence

that he or she left their most recent employment for good cause connected with the

work. See Green v. District of Columbia Dep’t of Emp’t Servs., 

499 A.2d 870

, 877

(D.C. 1985) (internal citations omitted). This determination “is factual in nature,

and turns on what a reasonable and prudent person in the labor market would do

under similar circumstances.” Consumer Action Network v. Tielman, 

49 A.3d 1208

, 1211 (D.C. 2012) (internal citation and quotation marks omitted).
                                         6

      This court reviews decisions of the OAH under the substantial evidence

standard, and we must affirm an OAH decision when “(1) OAH made findings of

fact on each materially contested issue of fact, (2) substantial evidence supports

each finding, and (3) OAH’s conclusions flow rationally from its findings of fact.”

Castro v. Security Assurance Mgmt., Inc., 

20 A.3d 749

, 756 (D.C. 2011) (Schwelb,

J. concurring) (quoting Rodriguez v. Filene’s Basement Inc., 

905 A.2d 177

, 180-81

(D.C. 2006)). In other words, “‘we must uphold the agency action if it is supported

by substantial evidence even if there is substantial evidence to support a contrary

conclusion.’” 

Castro, 20 A.3d at 756

(quoting Combs v. District of Columbia

Dep’t of Emp’t Servs., 

983 A.2d 1004

, 1009 (D.C. 2009)).



                                       III.



      As a threshold matter, petitioner contends the ALJ erred in concluding the

Legal Clinic met its burden of establishing that she voluntarily resigned from her

position. More specifically, petitioner argues that she did not voluntarily resign

but was constructively discharged, and that the ALJ should have considered her

evidence of racial discrimination as part of its voluntariness inquiry as opposed to

using it to determine whether her resignation was for good cause connected with

her work.    We disagree.     In unemployment cases we have recognized one
                                        7

exception to the general rule that an employee who voluntarily resigns is not

eligible to collect unemployment benefits. That exception is where an employee is

forced to choose between resigning or being immediately discharged. Under those

circumstances, the choice to resign is not considered a voluntary quit but a

constructive discharge.   Petitioner contends that we should also look at her

resignation as a constructive discharge. However, the situations are not analogous.

See 

Green, 499 A.2d at 876

(“[t]his court deems involuntary a resignation in the

face of imminent discharge”).     Here, petitioner was not facing an imminent

discharge from her position as a staff attorney. Instead, she contends that she was

forced to resign from her employment because of intolerable working conditions at

the Legal Clinic. To prevail on that type of claim, petitioner has to show that a

reasonable person facing similar working conditions would also have resigned.

See, e.g., Wright v. District of Columbia Dep’t of Emp’t Servs., 

560 A.2d 509

, 513

(D.C. 1989) (burden on employee to demonstrate “she resigned for ‘good cause’

connected with her employment”). Here, there was no evidence presented by

petitioner that she faced any imminent discharge or even any threat of discharge

from her employer and therefore, the ALJ properly rejected petitioner’s claim that

she was constructively discharged in this case and thus eligible for unemployment

benefits. In sum, the ALJ’s determination that petitioner voluntarily resigned is
                                         8

supported by sufficient evidence in the record. (See petitioner’s resignation letter

submitted on April 13, 2018. 2)



                                       IV.



      Alternatively, petitioner argues that she has proven by a preponderance of

the evidence that she was a victim of racial discrimination and unlawful

retaliation, 3 and that the improper conduct also aggravated an existing known

illness. Therefore, she contends that the ALJ erred in finding that her resignation

was not for good cause connected to the work. 4 In response, the Legal Clinic


      2
          “For a threatened termination to be imminent, the prospect of termination
must be real.” 

Green, 499 A.2d at 876

(internal citations and quotation marks
omitted). Here, the record definitively establishes petitioner did not face any
prospect of termination, as demonstrated by testimony from the executive director
of the Legal Clinic who explained there was work available for petitioner had she
not quit.
      3
        Petitioner had to prove retaliation by a preponderance of the evidence and
the ALJ found no evidence that petitioner was retaliated against for complaining
about any perceived race discrimination to Ms. Fugere. We agree that the record is
devoid of substantial evidence to support a finding of retaliation.
      4
         “Reasons considered good cause connected with the work for voluntary
leaving include, but are not limited to, the following: (a) Racial discrimination or
harassment; . . . (e) Illness or disability caused or aggravated by the work;
Provided, that the claimant has previously supplied the employer with a medical
statement[.]” 7 DCMR § 311.7(a), (e).
                                         9

offered testimonial and other evidence to refute petitioner’s claims that she was the

victim of racial discrimination and further offered evidence that the incidents

complained of were not sufficiently egregious that they would cause a reasonable

person to resign from his or her employment.



      Viewing this record without requiring petitioner to prove racial

discrimination in order to show good cause for her resignation, we understand our

decisions interpreting the phrase “good cause connected to the work” to require, at

a minimum, a showing of a racially hostile workplace that would cause a

reasonable, similarly situated, person to resign; a showing the ALJ reasonably

concluded petitioner failed to make.         See 

Tielman, 49 A.3d at 1215

(“In

determining whether an employee had good cause to leave his or her employment,

a court should focus on the impact of the change on the employee.”); see also

Taylor v. Unemployment Compensation Bd. of Review, 

378 A.2d 829

, 834 (Pa.

1977) (“The degrading and abusive effects of the repeated expressions of racial

prejudice were cumulative in nature and ultimately created an employment

condition which would have been intolerable to any reasonable person in similar

circumstances.”); Thompson v. Kentucky Unemployment Ins. Comm’n, 

85 S.W.3d 621

, 625 (Ky. Ct. App. 2002) (“racial discrimination can constitute good cause to

voluntarily terminate one’s employment when it rises to a level ‘so compelling as
                                         10

to leave no reasonable alternative’”). While we have not before been faced with a

claim of racial discrimination as good cause connected with the work for a

voluntary quit in an unemployment compensation case, the above decisions are

instructive and consistent with our prior decisions interpreting the District’s

unemployment statute.      Like the courts in the cases cited above, we have

consistently held that in order to prove that a resignation was for good cause

connected with the work, an employee must present evidence that the employment

situation has become so toxic that the employee’s decision to leave is justified. See

Imperial Valet Servs. v. Alvarado, 

72 A.3d 165

, 168 (D.C. 2013) (employee had

good cause connected with the work for resignation where employer repeatedly

verbally abused her, uttering profanities at her, for reasons that had no connection

to the employee’s job performance); see also Cruz v. District of Columbia Dep’t of

Emp’t Servs., 

633 A.2d 66

, 72 (D.C. 1993) (quoting 81 C.J.S. Social Security §

226, at 450 (1977 & Supp. 1993)) (“In order to constitute good cause, the

circumstances which compel the decision to leave employment must be real, not

imaginary, substantial, not trifling, and reasonable, not whimsical; there must be

some compulsion produced by extraneous and necessitous or compelling

circumstances.”).   Typically, we have not found good cause for a voluntary

resignation unless the employer’s conduct made continued employment intolerable

or the circumstances involved situations where an employee has suffered an
                                         11

unjustified adverse employment action that would cause a reasonable person to

leave his or her employment without another job. For that reason, we have held

that even the denial of a promotion or a salary increase does not constitute good

cause connected with the work because a reasonable person would not leave his or

her employment without having obtained other gainful employment. Bowen v.

District of Columbia Dep’t of Emp’t Servs., 

486 A.2d 694

, 698 (D.C. 1985). By

contrast, we have recognized that good cause exists where an employee was

required to work overtime but was not appropriately compensated. See Kramer v.

District of Columbia Dep’t of Emp’t Servs., 

447 A.2d 28

, 29-30 (D.C. 1982); see

also Berkley v. District of Columbia Transit, Inc., 

950 A.2d 749

, 762-63 (D.C.

2008) (substantial reduction in employee’s hours and employer’s failure to pay

wages constituted good cause to leave work).



      In this case, petitioner is clearly unhappy with her perception of how she has

been treated by some of her co-workers, especially Mr. McNeilly, who told her a

case she was supervising did not need a volunteer attorney with hearing

experience, a statement Ms. Lott understood as a reprimand “of the decisions that

[she] made, both in case strategy as well as the type of attorney that [she] selected

for this particular case.”   However, the ALJ reasonably determined that any

perceived animosity between petitioner and her co-workers did not establish the
                                         12

kind of intolerable working condition that would cause a reasonable and prudent

person to leave his or her job without first securing other employment. Unlike the

circumstances in Imperial Valet Servs., 

72 A.3d 166-68

, where we upheld a

decision that the resignation was for good cause connected to the work because

evidence was presented that the employee’s supervisor had a habit of repeatedly

calling the employee “stupid” and a “piece of crap” while she was working, here

the ALJ found no evidence that the one conversation complained of was instigated

by a supervisor, was overtly disrespectful, or that it contained any racially charged

or otherwise derogatory comments. Thus, the evidence in the record supports the

ALJ’s conclusion that a reasonable and prudent employee would not have felt

compelled to leave his or her employment based on the conversation as alleged by

petitioner in this case.



       Petitioner’s claim that she was not considered for a lateral staff attorney

position for which she expressed an interest is equally unavailing.          This is

particularly so where there is no evidence in the record that Ms. Lott applied for

the position in question. 5 However, even had petitioner’s claim that she applied


       5
          Ms. Fugere, the Legal Clinic’s director, testified that although petitioner
expressed an interest in laterally transferring to this open position, because the
responsibilities associated with the position were being modified, petitioner’s
interest was contingent upon the ultimate responsibilities assigned to the role. Ms.
                                                                       (continued…)
                                         13

for the position but was not considered been accepted as true, it still would not

have amounted to good cause connected with the work to resign. The undisputed

evidence is that the attorney position she sought was not a promotion and that it

would not have resulted in a salary increase. Further, because of the structure of

the Legal Clinic, it does not appear that the position could be considered a stepping

stone to a supervisory attorney position.       While we understand petitioner’s

disappointment in not being selected for the position, we have held that without

more, even the denial of a promotion or salary increase does not amount to good

cause connected with the work. See 

Bowen, 486 A.2d at 698

(“petitioner offered

no evidence which would . . . support a finding that a ‘reasonable and prudent and

person’ would have resigned simply because he failed to gain a promotion or

salary increase”). Therefore, it is difficult to conceive of a situation where the

denial of a lateral position would be sufficient to compel a reasonable and prudent

person to leave his or her employment without having another job.

(…continued)
Fugere testified that once the position was finalized, she had no recollection of
petitioner expressing an interest in the position, and assumed petitioner was not
interested because she never raised her interest in the position again. Petitioner
testified that she expressed interest in the position via email and never received a
response from Ms. Fugere. However, the record shows petitioner sent this email
nine days before the position was finalized and that an announcement with
application instructions had been circulated among the entire Legal Clinic staff
much earlier. There is no indication in the record that petitioner followed the
detailed application process set out in this announcement.
                                         14



      Petitioner next argues that delays in implementing certain programs under

her supervision, and the Legal Clinic’s general lack of support for other programs

she favored, compelled her to resign. Specifically, she contends that the delayed

anti-racism training organized by petitioner and the failed partnership between the

Legal Clinic and the Unity Health Clinic in Anacostia were due to the lack of a

mandate by the Legal Clinic’s leadership and indicative of the discriminatory

animus she was facing on the job. However, given that the training was only

delayed by one month, and the failed partnership did not affect her working

conditions at the Legal Clinic, we find that the ALJ reasonably concluded that

these claims did not create the kind of racially hostile work environment that

would cause a reasonable person to resign. 6 At best, petitioner’s complaints here


      6
          We understand a hostile work environment to be “an environment which is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment.” Barrett v. Covington & Burling, LLP, 

979 A.2d 1239

, 1246 (D.C. 2009) (internal citation and quotation marks omitted). Although
isolated incidents of offensive misconduct generally do not constitute actionable
workplace harassment, “we have recognized that a single insult such as the use of
an unambiguously racial epithet . . . by a supervisor may be severe enough, in and
of itself, to create a hostile work environment.” District of Columbia Dep’t of
Public Works v. District of Columbia Office of Human Rights, 

195 A.3d 483

, 495-
96 (D.C. 2018) (internal citation, alterations, and quotation marks omitted).
Conditions sufficient to constitute a racially hostile work environment include
those where African American employees were repeatedly subjected to racially
demeaning treatment, including derogatory racial comments, Bartlette v. Hyatt
                                                                      (continued…)
                                          15

reflect a general dissatisfaction with her employment, a circumstance that would

not satisfy the good cause requirements under the Act.



      We previously affirmed a determination by OAH that an employee’s

resignation was not for good cause and more appropriately was considered a

voluntary resignation because of general dissatisfaction with the work where the

employee resigned rather than accepting a transfer to another staff position. Pyne

v. Mb Staffing Servs., 

39 A.3d 1258

, 1261-62 (D.C. 2012). While we have not

extensively explored all of the circumstances that would fall within the category of

general dissatisfaction with the work, the limited circumstances in which we have

found good cause connected with the work for a resignation strongly suggest that


(…continued)
Regency, 

208 F. Supp. 3d 311

, 322 (D.D.C. 2016), as well as where a deeply
offensive racial epithet was directed at an employee by a co-worker who the
employee was forced to continue working with for months until the co-worker’s
termination, Ayissi-Etoh v. Fannie Mae, 

712 F.3d 572

, 577 (D.C. Cir. 2013). In
contrast, here, none of appellant’s allegations, taken alone or together, indicate that
appellant was subject to discriminatory conduct. See Daka, Inc. v. Breiner, 

711 A.2d 86

, 93 (D.C. 1998) (“‘More than a few isolated incidents must have occurred,
and genuinely trivial occurrences will not establish a prima facie case’ [of a hostile
working environment.]”) (quoting Howard Univ. v. Best, 

484 A.2d 958

, 980 (D.C.
1984)). For instance, appellant’s conversation with Scott McNeilly, during which
she asserts to have been reprimanded, did not involve any racial or otherwise
derogatory epithets that we have found severe enough for a single insult to create a
hostile work environment. See District of Columbia Dept. of Public 

Works, 195 A.3d at 495-96

.
                                         16

most workplace unhappiness would fall within the category of general

dissatisfaction with the work. There is very little case law from neighboring

jurisdictions that address the topic but several decisions by the Appellate Division

of the New York courts endorse this understanding and support the distinction that

we articulate here. See In re Rizzicone, 

32 A.D.3d 1056

, 1057 (N.Y. App. Div.

2006) (resignation because employee felt his abilities and efforts were not

appreciated after he received some criticism at work was no more than general

dissatisfaction with the work that did not constitute good cause for leaving

employment); see also In re Woodcheke, 

53 A.D.3d 1011

, 1011 (N.Y. App. Div.

2008) (“Neither dissatisfaction with one’s work environment . . . an inability to get

along with a difficult co-worker or supervisor . . . nor an employer’s criticism of

one’s work performance constitutes good cause for leaving one’s employment”);

In re Kremsky, 

32 A.D.3d 602

, 602 (N.Y. App. Div. 2006) (employee’s general

dissatisfaction with her working environment did not constitute good cause for

leaving employment where employee resigned because she felt she was being

treated unfairly and that her work environment was uncomfortable).             Here,

petitioner’s stated reasons for her resignation — her unhappiness with the delayed

anti-racism training and the failed partnership between the Legal Clinic and the

Unity Health Clinic in Anacostia, as well as her belief that she was not given due

respect as a professional and seriously considered for opportunities for professional
                                         17

growth as part of the Legal Clinic — fall within the category of concerns that

reflect an employee’s general dissatisfaction with his or her working conditions.

Thus, we are satisfied that the ALJ’s determination that petitioner’s resignation

was the result of general dissatisfaction with her employment, as opposed to for

good cause connected to the work, is supported by the record.



      Finally, petitioner contends the ALJ erred in finding that she did not

establish good cause for her resignation based on illness aggravated by her work.

Under District of Columbia law, “[i]llness or disability caused or aggravated by the

work” can constitute good cause for leaving provided the former employee can

show that “[he or] she supplied the employer with a ‘medical statement’

documenting the disability or illness before [he or] she resigned.” Chimes District

of Columbia, Inc. v. King, 

966 A.2d 865

, 868 (D.C. 2009) (quoting Branson v.

District of Columbia Dep’t of Emp’t Servs., 

801 A.2d 975

, 978 (D.C. 2002)); see

also 7 DCMR § 311.7(e). It is the employee’s obligation to provide his or her

employer with a medical statement substantiating his or her claim that the illness or

disability is caused or aggravated by his or her work.

Id. at 869.

The purpose of

this requirement is to give the employer “‘objective, professional verification’ of

the disabling illness and to permit the employer to take steps, if any, to
                                        18

accommodate the employee and avoid a job-necessitated resignation.” Bublis v.

District of Columbia Dep’t of Emp’t Servs., 

575 A.2d 301

, 303-04 (D.C. 1990).



      Here, the record establishes that the Legal Clinic was well aware of

petitioner’s mental health challenges and had previously granted all of petitioner’s

requests for reasonable accommodations related to her anxiety and depression —

efforts demonstrating good faith on the part of the clinic to maintain petitioner’s

employment, and not to terminate her for health challenges. 7 Because the Legal

Clinic took steps to accommodate her needs, she cannot complain that her then

existing conditions at work constituted good cause for voluntarily resigning from

her position as a staff attorney. However, citing our decision in Bublis, petitioner

now contends that the Legal Clinic was also on notice that petitioner’s working

conditions were “aggravating” her illnesses. There is a distinction between having

notice of and reasonably accommodating an existing medical condition and notice

that there are circumstances connected to an employee’s work that are aggravating

those illnesses.   Unlike in Bublis, here the ALJ reasonably concluded that

petitioner failed to timely present her employer with sufficient medical evidence

      7
        Petitioner informed the Legal Clinic of her illness in a series of emails.
However, when sharing this information with the Legal Clinic, petitioner did not
adequately disclose that her illness was caused by or being aggravated by her
working conditions.
                                         19

that her working conditions were causing her medical or psychological problems. 8

For that reason, the ALJ’s finding that the Legal Clinic was not on notice of

petitioner’s claims that her working conditions were aggravating her existing

illnesses is supported by evidence in the record and is therefore, not clearly

erroneous.



      For the foregoing reasons, the judgement of OAH is



                                                    Affirmed.




      8
           It was not until Petitioner submitted her resignation letter that any clear
and specific mention was made connecting her health and her work. In passing she
mentions that she “considered how [her] work at the Legal Clinic impact[ed] [her]
personal health, life, and happiness.” However, prior to resigning, she never
presented any medical documentation to the Legal Clinic that suggested that there
was any causal connection between her work for the Clinic and her then existing
mental health challenges. Nor had she asked that her working conditions be
modified to accommodate her health needs. In fact, it was not until two months
after she resigned that petitioner provided a record from her medical provider
attesting that she suffered from acute anxiety resulting, in part, from job related
stressors. However, because this affidavit is dated June 15, 2018, more than two
months after petitioner’s resignation, it cannot serve as a medical statement
documenting her illness because it was not provided to her employer until months
after her resignation. See 

Chimes, 966 A.2d at 868

.

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