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DISTRICT OF COL. v. DEPT. OF EMPLOY. SVCS.

June 18, 1998

DISTRICT OF COLUMBIA, PETITIONER,
V.
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.



APPEAL FROM THE DEPARTMENT OF EMPLOYMENT SERVICES (DOES).

Before Wagner, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge:

The District of Columbia seeks review of a decision by the Department of Employment Services (DOES) awarding unemployment [713 A2d Page 934]

compensation benefits to Loretta Smith, a former District employee who was fired for misconduct. We find a fundamental flaw in the Department's ruling, and accordingly we reverse its order and remand the case for further proceedings.

I

Loretta Smith was employed as a teacher in the District of Columbia Public Schools (DCPS). On May 12, 1992, the Superior Court issued a "stay-away" order against Ms. Smith in a case involving matters unrelated to her job. On August 18, 1992, the Superior Court found her guilty of contempt for violating the stay-away order, the violation having occurred on July 2. She was released on bond pending sentencing, but on October 9, 1992, she was again found guilty of violating the stay-away order. On October 16 Ms. Smith was sentenced to six months in jail. *fn1

Eleven days later, on October 27, the District sent a letter to Ms. Smith at the jail stating that her employment would be terminated on November 12, 1992. The discharge was based on D.C.Code § 1-617.1(d)(22) (1992), which allows termination of a District of Columbia employee after conviction of a misdemeanor "when the conviction is based on conduct that would affect adversely the employee's or the agency's ability to perform effectively." The letter stated that "the Administration has concluded that it would be contrary to the best interests of the School System to continue your employment." *fn2

Several weeks later Ms. Smith filed for unemployment compensation benefits. Her claim was initially denied on the ground that she had been discharged from her job for "gross misconduct occurring in [her] most recent work." See D.C.Code § 46-111(b) (1996). Ms. Smith appealed, and a hearing was held before an appeals examiner, who found:

[T]here has been no showing by the employer that claimant's conviction affected her ability to perform. Employer has been unable to show that some misconduct occurred during the course of claimant's most recent work. The employer has been unable to show an act of willful or wanton disregard of employer interests or an intentional and substantial disregard of the employer's interest or of employee's duties and obligations to the employer.

Claimant was involved in an action away from the employer and not connected with her work.

On the basis of these findings, the examiner concluded that "claimant was terminated; however, no misconduct under the D.C. Act has been proven."

The District took an administrative appeal to the Office of Appeals and Review (OAR), which held that the examiner's ruling was supported by "reliable, probative, and substantial evidence." It ruled that under Green v. District Unemployment Compensation Board, 346 A.2d 252, 256 (D.C. 1975), and Jones v. District Unemployment Compensation [713 A2d Page 935]

Board, 395 A.2d 392, 395 (D.C. 1978), a finding of misconduct must be based on the reasons given by the employer for the discharge. The OAR read the examiner's decision as finding that "employer failed to show that the conduct for which claimant was convicted adversely affected claimant's ability . . . to perform effectively" and "also failed to show that [Ms. Smith's] conduct was a willful violation of employer's rule." Holding that the examiner's findings were supported by substantial evidence, the OAR affirmed her ruling. The District now asks us to review the OAR's ...


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