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Washington Times v. District of Columbia Department of Employment Services

February 25, 1999


Before Wagner, Chief Judge, Schwelb, Associate Judge, and Pryor, Senior Judge.

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

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

Argued December 10, 199

Schwelb, Associate Judge: The Washington Times (the employer) has asked this court to review a decision of the Director of the Department of Employment Services (DOES or the agency) in which the Director held that Ty Clevenger, formerly a reporter for the Times who had been discharged for unsatisfactory performance, was entitled to receive unemployment compensation benefits. The employer claims that the Director made various legal errors requiring reversal. We reject most of the employer's contentions, but remand the case for clearer and more explicit findings.



A. The evidence.

Clevenger came to work for the Times on or about August 8, 1995. He did not perform his duties to the employer's satisfaction during his initial probationary period. On January 4, 1996, Clevenger received a generally unfavorable performance evaluation, but was retained in a probationary status for four more months. On or about May 7, 1996, Clevenger was advised that his writing and reporting abilities remained substandard, and his employment with the Times was terminated.

On May 23, 1996, Clevenger filed a claim for unemployment compensation benefits pursuant to D.C. Code §§ 46-101 et seq. (1996). On June 3, 1996, a DOES claims examiner found Clevenger to be eligible for the requested benefits. *fn1 The employer objected to the claims examiner's ruling, contending that Clevenger had been discharged for misconduct, and that he was therefore ineligible for benefits. See D.C. Code § 46-112. On July 24, 1996, an evidentiary hearing was held before a DOES appeals examiner.

The employer's sole witness at the hearing was Kenneth M. McIntyre, the Metro editor of the Times. McIntyre testified that he was in charge of the Metro desk and its eight editors and fifteen reporters. Although McIntyre had general oversight responsibility over all of these employees, Clevenger's work was directly supervised by two of the editors, Bernard R. Dagenais and Joseph Curl.

McIntyre testified that Clevenger's performance was deficient in a number of respects. He claimed that Clevenger failed to attend staff meetings and other meetings, omitted important information from his stories, missed deadlines, pitted editors against one another, and failed to respond appropriately to criticism designed to improve his performance. Much, if not most of McIntyre's assessment of Clevenger's work was, however, based on information that McIntyre received from other editors who had regular direct contact with Clevenger. *fn2

The employer also introduced into evidence the report of Clevenger's January 1996 performance appraisal, which was prepared by Dagenais, Curl and McIntyre, as well as portions of the log maintained by Dagenais. The performance appraisal contained many criticisms of Clevenger's work, *fn3 occasional praise, *fn4 but little if any indication of willful misconduct. *fn5 In his log, Dagenais concluded that "Ty has shown a willingness to work but hasn't used his time wisely," and complained, inter alia, that Clevenger "chose to fight his editors rather than learn from them," that he did inadequate research and missed significant stories, and that although Clevenger's attitude might have improved in the period preceding his dismissal, the "attitude shift" did not have a significant impact on Clevenger's work.

Clevenger testified on his own behalf and painted an entirely different picture of the situation at the Metro desk. He claimed that his difficulties at the Times had their genesis in the inability of the editors who supervised him to get along with one another. According to Clevenger, the editors repeatedly gave him conflicting instructions, and one editor would berate him for carrying out the directives of a different editor. Clevenger asserted that morale among the reporters was very low and resulted in a high turnover rate. He stated that the editors were frequently abusive to him and to other reporters. Clevenger testified that he complained to Dagenais that reporters were being blamed for mistakes made by editors, and he stated that after he had done so, "everything hit the fan," and he was "scapegoated" in retaliation for standing up to the abuse. Clevenger denied the employer's allegation that he was unwilling to learn:

"I said from the outset, the first day I came to the Washington Times, I was green, I knew I had a lot to learn. And I was willing to learn. I -- to the day I was fired, I was willing to learn. What I was not willing to do was to be belittled and insulted and kicked around like some kind of football. That I was not willing to do and I stood up against that."

B. The appeals examiner's decision.

On August 2, 1996, the appeals examiner issued a brief written decision in which she ruled in favor of the employer. The examiner described Clevenger's unfavorable performance appraisal in January 1996, and noted that he was placed on a second period of probation at that time. The examiner then faulted both Clevenger and his superiors, as follows:

"The claimant missed important deadlines (vital in the newspaper business), faulted others for his deficiencies, pitted editors against each other, displayed a progressively negative attitude and missed staff meetings."

"The employer was slanderous to the claimant, ill treated its staff, and had unclear lines of authority between line staff and the various editors."

Emphasizing that by the end of his second period of probation, Clevenger had reason to know of the employer's dissatisfaction with him, the examiner concluded that

"the employer was attempting to work with an employee, who was not able to receive corrective criticism. The Examiner finds that the employer has met its burden of proof sufficient to support a finding of gross misconduct pursuant to 7 DCMR [§] 312.3 [1994]."

The examiner therefore held that "the claimant becomes ineligible for benefits."

C. The Director's decision.

Clevenger filed an internal appeal with the agency's Office of Appeals and Review (OAR). On July 30, 1997, the OAR issued a proposed decision reversing the appeals examiner's decision in a one-page order, the operative portions of which read as follows:

"In the instant case, the Claimant was alleged to have committed any [sic] acts of misconduct which resulted in his disqualification for gross misconduct. However, the testimony offered at the Hearing consisted of no witnesses that could testify to any acts of misconduct other than the main supervisor."

"However, there were no corroborating witnesses and the Claimant adamantly stated that he was doing the best job he could do under the circumstances. The burden to prove misconduct or gross misconduct is on the Employer and in this case, the Employer has not met its burden of proof."

"The Employer alleged issues of not completing jobs, but this was always countered by testimony by the Claimant indicating he had more than one editor telling him what to do as a new reporter, working for The Washington Times. There was no rebuttal evidence given by other editors on the job, or any one to indicate that ...

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