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02/16/90 SYLVIA J. LONG v. DISTRICT COLUMBIA

February 16, 1990

SYLVIA J. LONG, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. POTOMAC ELECTRIC POWER COMPANY, INTERVENOR



Petition for Review of a Decision of the District of Columbia Department of Employment Services.

Before Rogers, Chief Judge, Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Petitioner seeks review of a Department of Employment Services ("DOES" or "Department") decision holding her ineligible for unemployment compensation because she was discharged for "misconduct." Unfortunately, the record is inadequate to permit us to perform our appellate review function. Accordingly, we must remand for further agency action.

I

The factual setting, briefly put, was as follows. Petitioner, then an employee of Potomac Electric Power Company ("PEPCO"), filed a charge in the District of Columbia Office of Human Rights ("OHR") on September 30, 1986, alleging that PEPCO had discriminated against her on the basis of race. Petitioner took with her to an OHR conference four PEPCO documents, which she obtained, at least in part, from PEPCO computer disks. *fn1 Five days later, after an investigation, PEPCO wrote petitioner: "As a result of your unauthorized entry into, and search of, Company records and your unauthorized removal of Company documents in violation of Company and Departmental rules, you are discharged, effective close of business, December 8, 1986." *fn2

Petitioner applied for unemployment compensation. Two hearings were held before a DOES appeals examiner, the second following an order of remand by the DOES Office of Appeals and Review ("OAR"). *fn3 Each hearing resulted in an appeals examiner decision denying petitioner's claim. *fn4 The second decision was summarily affirmed by OAR. An appeal was then taken to this court.

II

All agency action must ultimately rest upon legal principles established by statute, regulation or case law. Paramount in any agency decision for purposes of appellate review is a clear exposition of the legal principle or principles underlying the agency decision. "Where an administrative agency is delegated broad authority to administer a statutory scheme . . . we defer to a reasonable construction of the statute made by the agency." Smith v. District of Columbia Dept. of Employment Servs., 548 A.2d 95, 97 (D.C. 1988) (citations omitted). However, "absent an analysis staking out an agency position to which this court normally would accord some deference," Wells v. District of Columbia Dept. of Employment Servs., 513 A.2d 235, 242 (D.C. 1986), we have no choice but to remand for clarification. "An administrative order can only be sustained on the grounds relied on by the agency; we cannot substitute our judgment for that of the agency." Jones v. District of Columbia Dept. of Employment Servs., 519 A.2d 704, 709 (D.C. 1987) (citations omitted); see also Jadallah v. District of Columbia Dept. of Employment Servs., 476 A.2d 671, 675 n.3 (D.C. 1984) (per curiam).

In this case, the Department denied unemployment compensation on the ultimate ground that petitioner was discharged for "misconduct." The District of Columbia Unemployment Compensation Act, D.C. Code § § 46-101 to 46-128 (1987) (the "Act"), is the controlling statute. It defines the word "misconduct":

For the purposes of this section, the term "misconduct" means an act of willful disregard of the employer's interests, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of his employees, negligence to such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or showing an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer.

D.C. Code § 46-111(b)(2) (1987). Furthermore, the Department, pursuant to statutory authority, *fn5 has by regulation particularized the meaning of the word "misconduct" within the statutory scheme:

Misconduct occurring in the course of work includes, but is not limited to, the following:

(a) Willful violation of ...


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