Petition for Review of a Decision of the District of Columbia Department of Employment Services
Schwelb and Farrell, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Farrell
Petitioner, an employer, challenges an award of unemployment compensation on the grounds that the appeals examiner improperly restricted cross-examination of the claimant-employee and also failed to make written findings of fact with respect to material contested issues. We conclude that the first claim of error provides no basis for disturbing the administrative decision, but that the second has merit; we therefore vacate the decision and remand to the agency for more specific findings of fact.
Claimant Pauline Thompson was dismissed from her job as a reservations manager at the Holiday Inn-Georgetown hotel on April 28, 1989. In accordance with standard Department of Employment Services (DOES) procedures, *fn1 her claim for unemployment compensation benefits led first to an informal "predetermination fact-finding interview" at which both claimant and Jeffrey Lea, Director of Personnel at the hotel, offered statements. The claims examiner ruled that claimant was not eligible for unemployment compensation benefits because she had been dismissed for "misconduct and insubordination" within the statutory definition of misconduct. See D.C. Code § 46-111 (b)(2) (1990). Claimant appealed this decision administratively and an evidentiary hearing was held before a DOES appeals examiner. The examiner reversed the initial determination, concluding that the record showed at most "poor performance, inefficiency or incompetence," but not misconduct under the statute, and granted claimant's request for benefits. The Office of Appeals and Review in DOES upheld the examiner's decision without Discussion, and this petition for review followed.
Claimant's dismissal came after a series of incidents beginning with the discovery on April 17, 1989 that, as reservations manager, she had not confirmed the number of rooms needed for a group hotel reservation. Instead of the ten rooms for four nights which the British Royal Air Force (RAF) actually had requested, a sales manager had erroneously set aside forty rooms for four nights for this group. By not verifying the reservation, claimant failed to catch the sales manager's mistake -- indeed, the error was not noticed by anyone at the hotel until the group checked in. Holiday Inn estimated that its loss in revenue because of the RAF overbooking was at least $5000, a figure not challenged by claimant. Claimant's immediate supervisor at the time, Holly Zoba, testified that to prevent overbooking the hotel had a "cut-off date" system whereby a representative of a group was to be called by a specified time before the scheduled arrival to verify the number of rooms that would actually be needed. *fn2
According to testimony by Zoba and Lea, claimant arrived an hour late for work the next day and was summoned to a meeting with Zoba about the RAF error, her tardiness, and another incident on April 17 in which she had been rude to a fellow employee. *fn3 The meeting resulted in a written warning to claimant which she refused to sign. Because she was visibly upset, she was given the rest of the day off; but she failed to return to work until April 26 and on that day met with Zoba and Lea to discuss her behavior. According to Zoba and Lea, claimant would not admit error concerning the RAF incident despite the financial loss to the hotel, and said she would continue "doing things exactly the way she had been doing them." Claimant's statements convinced Lea
that she had no intention of correcting her behavior. She did not seemed at all concerned about the error that had made with the RAF booking notice which had cost the hotel probably upwards of $5,000. And she had a declared intention of not doing anything to improve her situation or do better in her job.
In addition, according to Zoba, claimant declared that she would no longer attend sales meetings, which the hotel considered "a very basic part of her job."
In her testimony claimant disputed her responsibility for the RAF mistake, asserting that another employee had made the initial error of entering the wrong number of total rooms in the ledger and that claimant simply "failed to catch the error." She denied any mistake in not verifying the number of rooms by the cutoff date, maintaining that the verification procedure did not apply when, as in this case, the booking originated with another hotel. Claimant did not contradict the employer's testimony that she had stated her intent to continue doing things as before; she claimed she had been under stress and working alone at the time of the booking incident, and had done her work to the best of her abilities. She did not deny stating that she would no longer attend sales meetings, but implied that her supervisor had accused her of disrupting past meetings ("pointing fingers" at other participants) and had indicated she would not be invited to meetings in the future.
In rebuttal Zoba and Lea reiterated that it was claimant's responsibility to confirm group reservations by the cutoff date and that the reason she was discharged was her express "refusal to change her ways to correct any of those mistakes[ *fn4] and prevent them from happening again in the future."
Petitioner contends that the appeals examiner failed to make written findings with respect to each material contested issue of fact, as required by D.C. Code § 1-1509 (e) (1987). In her written order the examiner summarized the positions of the parties, including the employer's contention that claimant had not been discharged for the April 17 error, but rather because she had refused to acknowledge the error and agree to follow proper booking procedures in the future. The examiner's findings, however, consist entirely of the following:
After a careful review of the record, the Examiner finds claimant was discharged, but not for misconduct as that term is defined by the Act. In Hickenbottom -vs- District of Columbia Compensation Board, D.C. App., 273 A.2d 475, 477-78 (1971), the court defined "misconduct must be an act of wanton, or willful disregard of the employer's interest, a deliberate violation of the employer's rules, or disregard of standards of behavior which the employer has the right to expect of its employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design[,] or show an intentional and substantial disregard of the employer's interest . . ." The record as a whole fails to show claimant acted in this manner. The law requires more than poor performance, ...