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10/14/93 DURWOOD C. JAMES v. DISTRICT COLUMBIA

October 14, 1993

DURWOOD C. JAMES, 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

Before Rogers, Chief Judge, and Schwelb and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: In discussing the admission of a particular form of hearsay, the Supreme Court has observed:

Individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts. . . . piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence.

Bourjaily v. United States, 483 U.S. 171, 179-80, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). This observation is relevant to the case before us in which we decide whether evidence chiefly -- though not exclusively -- hearsay in nature constituted "substantial evidence" of misconduct sufficient for us to sustain a hearing examiner's denial of petitioner's application for unemployment compensation. We hold that the evidence satisfied that standard, and therefore affirm.

I.

A.

Petitioner was employed as a security guard by Diamond Security, Inc., from April 21, 1988 through November 27, 1989, when he was fired as a result of a series of job-related acts of misconduct. After a Department of Employment Services (DOES) claims examiner denied petitioner's request for unemployment compensation, petitioner appealed, and an appeals examiner convened a hearing on February 22, 1990, at which petitioner and his former job supervisor testified. The examiner concluded that petitioner did not qualify for unemployment benefits because he had been discharged for misconduct. D.C. Code § 46-111 (b) (1990). The examiner based this finding chiefly on disciplinary action reports (DARs) contained in petitioner's employment record, as well as the supervisor's testimony and the examiner's negative assessment of petitioner's credibility. The Office of Appeals and Review affirmed the examiner's decision.

B.

The supervisor, John Steele, testified at the hearing that petitioner was fired because "over a period of time, consistently and constantly continued to break the rules and regulations after being counseled by my supervisors as well as by myself. . . ." The most recent incident, which was the "last straw" for the employer and resulted in the termination, took place on November 23, 1989, *fn1 when petitioner failed to report to work. Steele testified that after being informed of this fact, he called petitioner's home. *fn2 Petitioner's wife said that he was sick in bed and could not come to the phone. The following day petitioner called Steele to explain that he had been absent from work because he was sick. According to Steele, this violated the employer's established procedure "in respect to calling off duty that he was not coming to work" (emphasis added).

The record contains twenty-two disciplinary reports concerning petitioner prepared by various Diamond Security sergeants and generally signed by Steele, who also personally prepared and signed three of them. Among the offenses listed are: failing to report for duty, tardiness, falsely claiming he was at work, drinking or sleeping on duty, being out of uniform, taking home the company radio, having a television on the work site, and failing to obey orders. Petitioner signed seven of the nineteen reports without comment, indicating he had received and read them, and signed one other report under protest. Most of the reports were prepared the same day the misconduct occurred; others were prepared within three days (in one instance six days) of the incident. The appeals examiner relied specifically on seven of the reports, *fn3 but took account of the others ("The misconduct in this case included the following. . ." (emphasis added)).

Although Steele did not prepare most of the DARs, he testified that he wrote the November 6, 17, and 23, 1989 reports since he was "the manager of the building that was working at," and he therefore had personal knowledge of these incidents. Otherwise, Steele would review such reports and discuss them with the employee involved and "counsel" him. Steele listed a number of reports for which he had personally counseled petitioner contemporaneously with the infractions, testifying that petitioner was "personally present to review and to voice any objections" to the reports.

Petitioner did not deny speaking with Steele "about the problems that we had with the schedule and working at Diamond Security," but denied the basis for the reports. He contended that there were inconsistencies in the DARs, that he did not have knowledge of some of them, that they were false, and that they were written up in order to avoid paying him unemployment and as retribution for his having won a wage and hour award. He also ...


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