August 31, 2000
FREDDIE R. GILES, APPELLANT,
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, APPELLEE.
Before Ruiz and Glickman, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Submitted September 16, 1999
Petitioner, Freddie Giles, appeals a decision by the Office of Appeals and Review (OAR) which affirmed his disqualification for unemployment compensation benefits because his termination was due to "gross misconduct." See D.C. Code § 46-111 (b) (1996). Giles was employed as a plumber by American University from January 1, 1993, until May 12, 1995, at which time he was terminated for poor work performance and failure to obey direct supervisory orders. Giles filed a claim for unemployment benefits on May 10, 1995. He was disqualified from benefits by the Claims Examiner due to "gross misconduct." After an appeal hearing, during which Giles and witnesses for American University gave testimony and presented documentary evidence, the Appeals Examiner affirmed the original gross misconduct disqualification. The OAR also affirmed the gross misconduct disqualification. Giles appeals the disqualification decision to this court. We vacate and remand for further consideration as to whether petitioner's "poor work performance" constituted "gross misconduct" disqualifying him from unemployment compensation benefits under the statute.
Giles is an experienced plumber who was popular with the students at American University. *fn1 On several occasions in the period between September 1994 and April 1995, Giles failed to perform his job according to his employer's expectations. The record documents a number of warnings exhorting Giles to improve his performance and setting forth the consequences if he did not. In a letter dated September 22,1994, Giles' supervisor, Rick Ricker, documented Giles' "[m]isuse of time during regular work hours" and warned that Giles' "productivity during regular hours and [his] need to perform work in a timely fashion had become increasingly alarming." The letter detailed the "la[te]st incident" on September 21, 1994, in which Giles failed to timely unstop a toilet as directed. A formal written reprimand from Ricker to Giles for failure to turn in work tickets, dated January 20, 1995, notes that Ricker and Giles spoke on January 12, 1995, "and a number of times before," concerning Giles' failure to fill out and return completed work tickets. On January 26, 1995, Willy Suter, a Director of Physical Plant Operations, cited Giles for "poor work performance" and a "careless and slipshod response" to a work request concerning a water leak. This memorandum cautioned Giles that future work-related problems would result in "serious disciplinary action that could include your termination." Giles was ordered to contact his supervisors if "ever in doubt about what is expected" or if "unable to solve a problem." Finally, an April 27, 1995, memorandum notifying Giles of his termination documents two examples of poor work performance after the January 26, 1995, written warning. Specifically, on April 20, 1995, Giles was asked by his supervisor to help another plumber repair piping, but Giles did not respond and failed to contact his supervisor when he had difficulty obtaining his tools. Similarly, on April 26, 1995, Giles had difficulty repairing a clogged drain in a water fountain but failed to contact his supervisor.
A. Standard of Review
This court must affirm the agency's decision when (1) the agency made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) the Board's conclusions flow rationally from its findings of fact. Perkins v. District of Columbia Dep't of Employment Servs., 482 A.2d 401, 402 (D.C. 1984); D.C. Code § 1-1510 (a)(3)(E) (1999). We defer to agency findings of fact so long as they are supported by substantial evidence. See Cooper v. District of Columbia Dep't of Employment Servs., 588 A.2d 1172, 1174 (D.C. 1991). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gardner v. District of Columbia Dep't of Employment Servs., 736 A.2d 1012, 1015 (D.C. 1999) (citations omitted).
B. Statutory Scheme
As a result of recent amendments, our Unemployment Compensation Act now differentiates between terminations for "gross misconduct," D.C. Code § 46-111 (b)(1), and terminations for "misconduct, other than gross misconduct," D.C. Code § 46-111 (b)(2). See generally District of Columbia v. Department of Employment Servs., 713 A.2d 933, 936-37 (D.C.1998) (explicating history of recent amendments). The statute provides that the term "gross misconduct" shall be "determined under duly prescribed regulations," § 46-111 (b), regulations that took effect June 24, 1994, see 7 DCMR § 312 (1994), 41 D.C. Reg. 4167 (1994). "The relatively new provisions in the regulations relating to gross misconduct and simple misconduct have not yet been construed by this court." The Washington Times v. District of Columbia Dep't of Employment Servs., 724 A.2d 1212, 1221 (D.C. 1999).
Under the statute, an employee who is discharged for "gross misconduct," as defined in the regulations, is disqualified from receiving unemployment benefits immediately after that discharge. See D.C. Code § 46-111 (b)(1). *fn2 The regulations define gross misconduct as "an act which deliberately or willfully violates the employer's rules, deliberately or willfully threatens or violates the employer's interests, shows a repeated disregard for the employee's obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee." 7 DCMR § 312.3. *fn3 The term "other than gross misconduct" means "an act or omission by an employee which constitutes a breach of the employee's duties or obligations to the employer, a breach of the employment agreement or contract, or which adversely affects a material employer interest . . . includ[ing] those acts where the severity, degree, or other mitigating circumstances do not support a finding of gross misconduct." *fn4 7 DCMR § 312.5.
C. Evidence of Gross Misconduct
Giles argues that the facts presented in his case do not support a finding of gross misconduct within the meaning of D.C. Code § 46-111 (b)(1) and the regulations. *fn5 The burden to prove misconduct or gross misconduct is on the employer. See The Washington Times, 724 A.2d at 1218 (citing 7 DCMR § 312.2). The issue before us is whether the facts found by the agency support a finding of gross misconduct within the meaning of D.C. Code § 46-111 (b)(1), as elucidated by the regulations.
The benefit claims examiner found from the evidence presented by American University that Giles was terminated due to poor work performance and an unwillingness to perform his tasks in a timely and professional manner. Specifically, the examiner found that "after being warned," Giles "would not contact his supervisor if he encountered a problem, fail[ed] to turn in work tickets daily and fail[ed] to evaluate a plumbing situation effectively." The examiner determined these actions to be "willful and deliberate" so as to constitute gross misconduct pursuant to § 46-111 (b)(1).
The Appeals Examiner specifically found Giles' supervisor credible in his determination that Giles was a highly skilled plumber capable of carrying out his assignments. The Appeals Examiner also credited Giles' supervisor's version of the events leading to termination. The Appeals Examiner further found that Giles did not complete his assigned tasks in a timely or a satisfactory manner, despite verbal and written warnings. The OAR summarily affirmed the Appeals Examiner's decision that Giles' poor work performance amounted to gross misconduct.
D. The Agency's Decision
We will affirm the agency's conclusion that Giles' conduct amounts to gross misconduct under the statute if it flows reasonably from the agency's findings of fact and its regulations interpreting the unemployment compensation statute which it administers. *fn6 See The Washington Times, 724 A.2d at 1216. We conclude that we are unable to do so on the present record. In Long v. District of Columbia Dep't of Employment Servs., 570 A.2d 301, 302 (D.C. 1990), this court noted that "[p]aramount in any agency decision for purposes of appellate review is a clear exposition of the legal principle or principles underlying the agency decision." In Long, the Department of Employment Services' decision simply held that the employee was discharged for "misconduct," and the court remanded for clarification, including a clear fact-finding concerning the employee's mental state, because it found itself unable to perform its appellate function. See id. at 303-05. More recently, we remanded a case because the agency "failed even to mention the existence of two statutory levels of misconduct, and a reviewing court should not assume that the issue has been considered sub silentio when there is no discernible evidence that it has." The Washington Times, 724 A.2d at 1221. Here, both the claims examiner and the appeals examiner found Giles to have been terminated for gross misconduct, based on continued poor work performance after having been warned. Specifically, the claims examiner found that Giles' "poor work was willful and deliberate." The Appeals Examiner, after crediting the supervisor's testimony that Giles was an "excellent plumber, who was highly skilled at carrying out his job assignments," determined that Giles' failure to complete tasks and work orders "as required, despite verbal and written warnings," constituted gross misconduct under the regulations. The Appeals Examiner does not explicitly find that Giles' actions were willful and deliberate, although the evidence of Giles' skills and failure to perform up to that standard would permit such an inference. The OAR's decision contains no independent analysis.
Although the first two levels of the agency's decision reference the "willful and deliberate" language of the regulation, we note that there is no mention of "poor work performance" in the regulation defining gross misconduct. Rather, the regulation speaks of "an act which deliberately or willfully violates the employer's rules, deliberately or willfully threatens or violates the employer's interests, shows a repeated disregard for the employee's obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee." 7 DCMR § 312.3. The regulations do mention "repeated disregard of reasonable orders" as an example of gross misconduct, see 7 DCMR § 312.4 (g), and it is perhaps possible to thereby understand the agency's finding. Compared to the other examples of gross misconduct in the regulation, however, it is less than clear whether the kind of disregard of orders in the routine performance of work evidenced in this case rises to the level of a violation of the employer's rules, interests or standards of behavior sufficient to constitute gross misconduct, in the context of a statutory scheme that differentiates between simple misconduct and gross misconduct. *fn7 "[W]e cannot substitute our judgment for that of the agency." Long, 570 A.2d at 302. Accordingly, it is necessary to remand for a clarification of the agency's decision.