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Shaw, Pittman, Potts and Trowbridge v. District of Columbia Dept. of Employment Services

May 5, 1994


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

Before Farrell and King, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: King

KING, Associate Judge: Petitioner, Shaw, Pittman, Potts and Trowbridge ("the employer"), challenges the decision by the Acting Chief of the Office of Appeals and Review ("OAR") of the Department of Employment Services ("DOES"), reversing the appeals examiner's denial of unemployment benefits to a former employee. On appeal, the employer contends that OAR erred when it rejected the appeals examiner's factual findings and credibility determinations and by ruling that the examiner's decision was not supported by reliable, probative, and substantial evidence. We agree and reverse and remand.


On August 28, 1991, Richard Owens ("the employee") was terminated from his position as Duplicating Technician for the employer. The employer cited five grounds for his termination: failure to remain in his department to fulfill scheduled hours, failure to follow instructions, failure to comply with firm policies and procedures, failure to report to work consistently on time, and violation of a directive regarding contact with other employees during administrative leave. *fn1

The employee sought and was initially awarded unemployment compensation benefits by a DOES claims examiner, and the employer appealed that determination. A hearing was held on November 21, 1991, and the employer presented evidence of misconduct on the part of the employee, including the testimony of DiAnn Dix, the Director of Support Services, and Delores Street, a housekeeper. Dix testified that she observed Owens repeatedly leave his work station for extended periods and linger at the firm's weekly wine and cheese gathering while on duty. *fn2 Dix also testified that she had received complaints from the employee's supervisor and co-workers regarding his lengthy disappearances and that she had counseled the employee regarding his violation of the employer's work rules. Finally, Dix testified that the employee continued to frequent the wine and cheese gathering even after she had warned him in writing that he could attend and remain at the event only long enough to take a plate of food and a non-alcoholic beverage. Street testified that she had seen the employee consuming alcoholic beverages at the wine and cheese event after he had been warned not to do so. In addition, Dix submitted a memorandum that she had written to the employee instructing him not to drink alcohol during his working hours, a letter to the file regarding her personal observation of the employee at the event, and a memorandum from another employee, Rick Smith, who also observed the employee at the wine and cheese event.

The appeals examiner credited the testimony of Dix and Street, finding that the employee did drink alcohol at the wine and cheese event in violation of stated policy after being warned, *fn3 was "away from his desk on a frequent basis and for long periods of time," was excessively tardy, and was absent without notifying his supervisor, despite warnings that he must to do so when he was going to be absent. Based on those findings, the appeals examiner ruled that the employer had established four acts of misconduct in that the employee: (1) left his work station without authorization, (2) failed to follow his supervisor's instructions regarding socializing when he should have been working, (3) violated work rules by drinking alcoholic beverages on the job, and (4) was excessively tardy. The appeals examiner further ruled that "each of the reasons cited for [the employee] being discharged are sufficient grounds to fire claimant." *fn4 On appeal OAR Acting Chief Ronald Perkins reversed, concluding that substantial evidence was lacking to support any of the findings of misconduct. The employer then petitioned this court seeking reversal of the OAR ruling.


In the District of Columbia, an individual who has been discharged for misconduct occurring in the course of his or her most recent work is ordinarily not eligible for unemployment compensation benefits. See D.C. Code § 46-111 (b)(1) (1990). In reviewing a final decision of DOES, relating to a finding of misconduct, our role is limited. We will not "disturb a decision if it rationally flows from the facts relied upon, and those facts or findings are substantially supported by the evidence of record." Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 675 (D.C. 1984) (citation and internal quotation marks omitted). In the instant case, however, OAR's rejection of the appeals examiner's decision cannot be sustained.

When OAR reviews an appeals examiner's decision, "due deference must be accorded the credibility determinations of the examiner who heard and evaluated the evidence." Gunty v. Dep't of Employment Servs., 524 A.2d 1192, 1197 (D.C. 1987). The rationale for such deference is that the appeals examiner is in the best position to observe the demeanor of the witnesses. See Dell v. Dep't of Employment Servs., 499 A.2d 102, 106 (D.C. 1985) (citing K. DAVIS, ADMINISTRATIVE LAW TREATISE § 17.16, at 330 (2d ed. 1980)). OAR "may not reject an appeals examiner's findings of disputed fact based on a resolution of witness credibility unless the examiner's findings are unsupported by substantial evidence." Gunty, supra, 524 A.2d at 1198. The requirement of substantial evidence means "more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a Conclusion." Washington Post Co. v. District Unemployment Compensation Bd., 377 A.2d 436, 439 (D.C. 1977) (citation and internal quotation marks omitted).

Moreover, OAR may not substitute its judgment for that of the appeals examiner unless the evidence is inherently unreliable, because if "the Director can make [his or] her own credibility findings based upon a reading of the record, we would essentially scrap the principle of deference to the examiner who actually hears the testimony and is in the best position to make such determinations." Gunty, supra, 524 A.2d at 1198. Accordingly, in this case OAR lacked authority to reject the appeals examiner's resolution of witness credibility and was bound by the examiner's findings of disputed fact unless they were unsupported by substantial evidence. Finally, OAR is bound by the factual findings supported by substantial evidence even if OAR would "have reached a contrary result based on an independent review of the record." Santos v. District of Columbia Dep't of Employment Servs., 536 A.2d 1085, 1088 (D.C. 1988) (citation omitted).


We turn to an examination of whether OAR's rejection of the appeals examiner's findings can be sustained on the basis that those findings are not supported by substantial evidence. "This presents an issue of law, which this court is in a position to address without need for deference to [OAR's] decision." Gunty, supra, 524 A.2d at 1198(citations omitted). See also Dell, supra, 499 A.2d at 107("Since the substantial evidence issue is an issue of law, the reviewing court has the greater expertise, and [OAR's] decision is therefore accorded less deference.") (citations and internal quotation marks omitted).

The appeals examiner determined that there were four independent acts of misconduct, each of which constituted a ground for termination. As noted above, those infractions included leaving the work station without authorization, failing to follow supervisor's instructions, excessive tardiness, and drinking alcoholic beverages on the job after being warned that doing so violated work rules. Since any one of these acts of misconduct would be sufficient to support a denial of unemployment compensation benefits, we need not address the first three charges because we are satisfied that OAR erred in rejecting the appeals examiner's findings of fact with respect to the employee's violation of the policy forbidding drinking alcohol while on duty. In rejecting the factual findings with respect to that charge, OAR ruled ...

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