Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP108344-07).
The opinion of the court was delivered by: Steadman, Senior Judge
Submitted December 16, 2008
Before BELSON, TERRY and STEADMAN, Senior Judges.
Petitioner, Sharion R. Larry, appeals the determination by the Office of Administrative Hearings ("OAH") that she is ineligible for unemployment compensation benefits on account of absenteeism that constituted "gross misconduct." The administrative law judge ("ALJ") failed to make a finding about the veracity of Larry's explanation for her absenteeism on the day that led to the discharge, apparently because of the employer's "no fault policy" relating to absenteeism. Such a finding was essential to a determination that Larry's absence was willful or deliberate, a prerequisite to an ultimate finding of "gross misconduct." Therefore, the decision is vacated and the case is remanded for further proceedings.
Larry was employed by the National Rehabilitation Hospital ("Hospital") as a nurse's aide from April 10, 2006, until June 23, 2007. After she was discharged for absenteeism, her application for unemployment benefits under D.C. Code § 51-110 (2001) was denied by a claims examiner of the Department of Employment Services. She appealed the claims examiner's decision and an OAH hearing was held. The ALJ made findings of fact that Larry's consistent violations of the Hospital's time and attendance policy constituted gross misconduct under D.C. Code § 51-110(b) and 7 DCMR §§ 312.3 and 312.4, and that she was therefore ineligible for unemployment benefits.
At the OAH hearing, the Hospital offered testimony and evidence regarding its time and attendance policy. The Hospital assessed an employee half a point for being more than five minutes tardy, or for leaving a shift more than five minutes early. An employee was also assessed a point for missing work due to an unscheduled absence.*fn1 Larry's supervisor testified that the policy was a "no fault" policy and that the Hospital did not "accept documentation from a doctor as excuse of absenteeism." The Hospital had a progressive disciplinary scale in which an employee would receive oral "counseling" after accumulating five points, written counseling after six points, a second written counseling at seven points and the possibility of discharge after eight points. The Hospital eliminated points from an employee's total one year after they were assessed.
Larry had a number of points assessed to her during the course of her employment and had received the required counseling and warnings from the Hospital. As of the morning of June 18, 2007, she had accumulated 9.5 points. (The last points that had been assessed to her were on March 16, 2007, when she received 0.5 points for being tardy.) Larry's scheduled shift that day was from 7:00 a.m. until 3:30 p.m. She called the Hospital to alert her supervisor, Cynthia McDonald, that she was ill and would not be in attendance.*fn2 McDonald was unavailable at the time, and Larry was told to call later in order to speak with her. Sometime later that morning, Larry was able to speak with McDonald, at which point McDonald told Larry that this unscheduled absence would raise her point total to 10.5 points and would result in her discharge. On June 21, 2007, the Hospital sent Larry a formal notice of termination of employment that stated, in relevant part: "On March 30, 2007, you were given a second written warning for continued unscheduled leave usage. You were again warned that your use of unscheduled leave or tardiness had resulted in progressive disciplinary action and that any further use of unscheduled leave would result in your termination of employment. On June 18, 2007, you called out again using unscheduled leave. In accordance with Nursing Administration's policy #101.007, Unit Time Management, you are therefore terminated from employment at the National Rehabilitation Hospital effective June 23, 2007." Thus, absent the unscheduled leave on June 18, Larry would not have lost her employment.
In her order, the ALJ correctly states that while D.C. Code § 51-109 (2001) creates a statutory right for unemployment benefits, employees may be disqualified from receiving benefits if they were discharged for misconduct (either "gross" or "other than gross"). D.C. Code § 51-110(b) (2001). That Code subsection directs the agency to define by duly prescribed regulations the statutory terms "gross misconduct" and "misconduct other than gross" and to add to its rules and regulations specific examples of behavior that constitute misconduct within the meaning of the subsection, which it has done. 7 DCMR § 312.3 defines "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 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."*fn3 One of the eleven examples of gross misconduct listed under the regulations is "Repeated absence or tardiness following warning." 7 DCMR § 312.4(k). The burden of proof is on the employer to establish misconduct. 7 DCMR § 312.2.
Reviewing the evidence, the ALJ concluded that Larry's behavior "exhibited deliberateness" and that her actions "demonstrated a deliberate or willful threat to the [Hospital's] interests or disregard of the employee's obligation to her employer." Therefore, the ALJ concluded that Larry's behavior constituted gross misconduct and rendered her ineligible for unemployment benefits.
We reviewOAH decisions to determine whether "(1) OAH made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) OAH's conclusions flow rationally from its findings of fact." Rodriguez v. Filene's Basement Inc., 905 A.2d 177, 180-81 (D.C. 2006) (citations omitted). "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." Id. at 181 (internal quotations and citation omitted). In addition, and importantly here, "OAH's finding of misconduct must be based fundamentally on the reasons specified by the employer for the discharge." Hegwood v. Chinatown CVS, Inc., 954 A.2d 410, 412 (D.C. 2008) (internal quotations and citation omitted).
Here, the notice from the Hospital stated that she was being terminated because on June 18, 2007, she called out again using unscheduled leave. The problem as we see it is that the Hospital's "no-fault" policy rendered irrelevant for purposes of discharge the reason for the unscheduled leave. This was in accord with the testimony of the Hospital supervisor that, "Our policy is a no-fault policy. We don't accept documentation from a doctor as excuse of absenteeism." At the hearing, Larry introduced medical evidence that she was seriously sick on the day in question, and the ALJ mentioned that evidence in her opinion but made no finding on the issue, presumably because of its irrelevance to the Hospital's decision.
However, the regulations of DOES specifically provide that a component of "gross misconduct" must include the fact that the conduct was done "deliberately or wilfully" or in "disregard" of the employee's obligations and expected standards of behavior. Although it may be argued whether, grammatically, the phrase "deliberately or wilfully" applies to ...