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06/06/90 WESLEY D. FREEMAN v. DISTRICT COLUMBIA

June 6, 1990

WESLEY D. FREEMAN, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT



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

Ferren and Farrell, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Farrell

Wesley Freeman (Freeman or petitioner appeals the decision of the Department of Employment Services *fn1 (DOES denying him unemployment compensation benefits on the ground that he was discharged for misconduct. *fn2 An appeals examiner (the examiner) concluded that the employer had carried its burden of adducing evidence sufficient to support a finding that petitioner had intentionally violated the employer's cash-handling policy. *fn3 The examiner, also found, citing the employer's affirmative response to her own question whether the policy was consistently enforced, that "claimant's conduct was not tolerated by the employer." However, because the finding of consistent enforcement of the policy -- required by 7 DCMR § 312.4 (c) (1986) as a prerequisite to disqualification for willful violation of an employer's rules -- is unsupported by substantial evidence, we are compelled to reverse.

I.

In November 1988, Freeman, then manager of a Burger King fast food outlet in Beltsville, Maryland, was discharged for failing to make a bank deposit in accordance with his employer's established cash-handling procedures. *fn4 Company policy required managers to count and record the cash receipts at the end of shifts ending at 5:00 p.m. and 8:00 p.m., and to deposit them in a nearby bank. The periodic deposit policy prevented accumulation of more than one shift's receipts on the premises, thus minimizing the amount at risk in the event of theft or robbery.

On November 19, 1988, Freeman left the receipts of the 5:00 p.m. to 8:00 p.m. shift, which were to be deposited at 8:00 p.m., in the safe on the premises after closing. Sometime between closing that evening and opening the following day, all the cash in the safe was stolen. The theft resulted in loss not only of the closing shift receipts and the store operating fund, but also of the 5:00 to 8:00 p.m. shift receipts which Freeman had failed to deposit. Freeman was terminated the following day.

A deputy claims examiner denied petitioner's initial request for unemployment compensation benefit's, concluding that Freeman's failure to make the 8:00 deposit constituted willful misconduct occurring in the course of work. Freeman noted a timely appeal, which came on for hearing de novo before an appeals examiner on January 29, 1989. After hearing testimony from Carlo Zias, speaking on behalf of Burger King, and Freeman, the examiner affirmed the denial of benefits, concluding that the employer had carried its burden of establishing that the employee's failure to make a bank deposit of receipts was a violation of his employer's rule, and misconduct within the meaning of the Act. The Office of Appeals and Review affirmed.

II.

A.

Regulations governing denial of benefits for misconduct specifically provide that if willful violation of the employer's rules is the basis for a disqualification from benefits because of misconduct, the Director shall determine the following:

(a) That the existence of the employer's rule was known to the employee;

(b) That the employer's rule is reasonable; and

(c) That the employer's rule is consistently enforced by the employer.

7 DCMR § 312.4. See also (Kenneth) Jones v. District of Columbia Dep't of Employment Servs., 558 A.2d 341, 342 (D.C. 1989); Curtis v. District of Columbia Dep't of Employment Servs., 490 A.2d 178, 179 (D.C. 1985). While we may not disturb a final decision of the DOES "if it rationally flows from the facts relied upon and those facts or findings are substantially supported by the evidence of record . . . we are required to set DOES holdings aside if they are not supported by substantial evidence in the record." Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 675 (D.C. 1984). This standard guides our review of the examiner's findings as to the prerequisites for ...


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