On Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (ES-P 102596-05).
The opinion of the court was delivered by: Thompson, Associate Judge
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
Petitioner Kathleen Amegashie seeks review of a decision of the Office of Administrative Hearings ("OAH") holding that she was terminated for "gross misconduct" and thus was ineligible for unemployment benefits. We conclude that the OAH decision is not supported by substantial evidence in the record, and we therefore reverse.
On August 31, 2005, a Department of Employment Services Claims Examiner determined that Amegashie was "Not Discharged for Misconduct" and that she was eligible for unemployment benefits. Her employer, CCA of Tennessee ("CCA") appealed to OAH, which conducted a hearing on October 18, 2005. The evidence at the hearing was as follows.
Respondent CCA hired Amegashie on December 29, 2003, as a correctional officer. She was terminated on June 20, 2004,*fn1 then rehired on September 13, 2004. She worked at the Correctional Treatment Facility ("CTF") located at 1901 E Street, S.E., operated by CCA, apparently under a contract with the District of Columbia Department of Corrections.
When Amegashie was rehired in September 2004, she requested permission to correspond with a friend, Odell Griffin, who was incarcerated at the D.C. Jail, which is located at 1900 E Street, S.E., in close proximity to the CTF. D.C. Jail is operated by the Department of Corrections, not by CCA. Amegashie sent her request in a letter to CTF Warden Fred Figueroa, with copies to CTF Chief of Investigations Don Paul and CTF Chief of Security Ariel Ramos. She testified that two or three days later, Assistant Warden Jacquelyn Banks informed her that "the Chief" -- she assumed that Assistant Warden Banks was referring to Chief of Security Ramos*fn2 -- would not allow her to communicate with an inmate at D.C. Jail. Amegashie then went to see both Chief Ramos and Chief Paul, both of whom informed her that they "didn't see a problem . . . as long as [the inmate] was not at CTF."
On February 2, 2005, after finishing her shift at CTF, Amegashie was searched as she exited the building, as was standard procedure. The guards found in her bag correspondence from two inmates -- a letter from CTF inmate Otis Bridges to Delegate Eleanor Holmes Norton, and a personal letter to Amegashie from D.C. Jail inmate Griffin. Amegashie testified that she came into possession of inmate Bridges' letter by volunteering to take his letter to the CTF mailroom since the mail had already been picked up for his unit that day. When she found that the mailroom was closed, she decided to drop the letter in a mail drop box that was within the CTF facility, but beyond the security point at which she was searched. She further testified that the personal letter from Griffin had arrived at her house by U.S. mail just as she was leaving for work, and that she had put the letter in her bag to read while riding the subway.
On February 16, 2005, CCA terminated Amegashie for misconduct. According to the testimony of Assistant Warden Banks, her misconduct was as described in a "CCA Employee Problem Solving Notice" dated February 11, 2005, conduct that CCA alleged to be a violation of CCA CTF Policy 3-3. The February 11, 2005 notice stated in pertinent part*fn3 that:
Correctional Officer Kathleen Amegashie has violated the Corrections Corporation of America/Correctional Treatment Facility Policies 3-3 (Standards of Ethics and Conduct) [by] continuing a correspondance [sic] between inmate Odell Griffin . . . at the Central Detention Facility after the facility administrator (Warden Fred Figueroa) denied such correspondance [sic].
Assistant Warden Banks testified that CCA CTF Policy 3-3 had been revised on January 1, 2004. A copy of the revised policy (i.e., the policy that was in effect at all times relevant to this dispute) was not introduced into evidence at the OAH hearing, but a copy of the pre-January 2004 policy (set out in a memorandum that Amegashie signed on December 29, 2003, to acknowledge her receipt) was introduced as Exhibit 102. In pertinent part, Exhibit 102 states:
(2) Staff members are prohibited from receiving correspondence through the United States Postal Service, the inter-facility mail, or direct delivery when the correspondence is of a personal nature. . . . Staff members are not allowed to initiate, participate in or pursue personal relationships with current or former inmates. . . . (7) Employees must notify their supervisors immediately, if a family member is incarcerated at the Correctional Treatment Facility or any D.C. Department of Corrections facility.
Following the OAH hearing, Administrative Law Judge (ALJ) Calonette McDonald issued a Final Order, dated February 6, 2006, reversing the determination of the Claims Examiner and finding that Amegashie was aware of and violated the CCA "policy prohibiting personal communication between staff and inmates," and ...