July 9, 2009
CONNIE K. MORRIS, PETITIONER,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.
Petition for Review of a Decision of the Office of Administrative Hearings (ESP107084-07).
The opinion of the court was delivered by: Fisher, Associate Judge
Argued March 20, 2009
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and STEADMAN, Senior Judge.
Connie K. Morris asks us to review the decision of the Office of Administrative Hearings ("OAH") finding her ineligible to receive unemployment compensation benefits because she was fired for gross misconduct. Concluding that the Administrative Law Judge ("ALJ") failed to make findings on each materially contested issue of fact, we remand for further proceedings.
I. The Factual and Procedural Background
Petitioner Connie K. Morris worked for the Environmental Protection Agency ("EPA") as an Information Liaison Specialist from January 12, 2003, until she was terminated on March 10, 2007. Ms. Morris alleges that she suffers from a "severe allergy to mold, mildew and dust mites" that causes her to experience "body swelling, breathing difficulties, bronchitis, rashes, rapid heart rate, rise in blood pressure," and other allergic reactions.
In April 2005 Ms. Morris sought an accommodation permitting her to work from home full-time, claiming that conditions in the EPA building triggered her severe allergic reactions.Although she previously had been allowed to work from home on occasion, her formal request for a telework arrangement was denied. When Ms. Morris sought reconsideration, the EPA determined she was a person with a disability and transferred her to a"clean space" facility. She experienced an allergic reaction in her new location, however, and missed many days of work during her recovery. Similar difficulties occurred at other locations to which she was transferred as a result of her continued complaints, despite the fact that the air quality in each of her work environments was extensively tested by the United States Public Health Service and found to be "acceptable by all applicable standards" and "better than ambient air."
On August 24, 2006, after she had used up all of her leave, her supervisor, John Richards, issued a memorandum informing Ms. Morris that her failure to provide appropriate medical documentation of her illness, and her continuing failure to report to work, "may lead to being placed in absence without leave (AWOL) status and/or disciplinary action, up to and including removal from Federal service." Although Ms. Morris provided several letters from her doctors, Mr. Richards found these documents insufficient because they did not specify what allergens were triggering Ms. Morris's reactions, or establish that her problems were caused by her work environment. Ms. Morris continued to miss work, and Mr. Richards charged her with being absent without leave for 412 hours during the period from August 21, 2006, through December 18, 2006.
On December 18, 2006, Mr. Richards sent Ms. Morris an Order to Report for Normal Tour of Duty, warning her that if she did not return to work beginning on January 2, 2007, she risked other "disciplinary measures, including, and up to removal."On January 3,*fn1 Ms. Morris reported to work, but after two hours stated that she was sick and needed to leave. From January 4, 2007, until February 2, 2007, Ms. Morris called Mr. Richards each morning to inform him that she was unable to come to work; each day, Mr. Richards recorded her status as AWOL and insubordinate and reminded her that she was placing her job in serious jeopardy.*fn2
On February 5, 2007, Mr. Richards issued a Notice of Proposed Removal based on two charges: (1) being AWOL for 468 hours between August 20, 2006, and December 29, 2006; and (2) insubordination and failure to follow supervisory instructions between January 3, 2007, and February 2, 2007. Ms. Marylouise Uhlig, the Associate Assistant Administrator, found that both charges against Ms. Morris had been "proved by the great weight of the evidence," and she removed Ms. Morris from federal service effective March 10, 2007.
The Administrative Law Judge ("ALJ") found that "Claimant suffered from a severe allergy to mold, mildew and dust mites[,]" but that "there [was] no evidence in the record to establish that in her several EPA work locations Claimant was exposed to specifically-identified allergens which caused Claimant's severe allergic reactions." His decision to deny unemployment benefits rested primarily on the undisputed fact that "Claimant failed to come to work at any time during the period January 4, 2007, through February 2, 2007." Faced with certain options, Ms. Morris "made an intentional decision to . . . refuse to return to work in violation of Employer's direct order . . . ."Furthermore, he concluded, "Claimant has failed to prove mitigating circumstances relating to her failure to report for work during [this time]." Based on these findings, the ALJ held that "Claimant's refusal to report for work during the period January 4, 2007, through February 2, 2007, after being expressly ordered to do so, constituted gross misconduct in the form of repeated absences after warning and insubordination."
II. Standard of Review
"This court must affirm an OAH decision when (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 (D.C. 2006). "Factual findings supported by substantial evidence on the record as a whole are binding on the reviewing court, although this court may have reached a different result based on an independent review of the record." McKinley v. District of Columbia Dep't of Employment Servs., 696 A.2d 1377, 1383 (D.C. 1997) (citation omitted). In conducting our review, we are bound by the rule that "[a]n administrative order can only be sustained on the grounds relied on by the agency." Georgetown University Hospital v. District of Columbia Dep't of Employment Servs., 916 A.2d 149, 152 (D.C. 2007) (citation omitted).*fn3 "If the agency fails to make a finding on a material, contested issue of fact, this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue." Brown v. Corrections Corp. of America, 942 A.2d 1122, 1125 (D.C. 2008) (citing Colton v. District of Columbia Dep't of Employment Servs., 484 A.2d 550, 552 (D.C. 1984)).
A. Statutes and Regulations
A terminated employee who satisfies the basic requirements of the unemployment compensation statutes is presumed to be eligible for benefits. D.C. Code § 51-109 (2001). That presumption is rebutted, and the employee becomes ineligible for benefits, when the employer proves by a preponderance of the evidence that the employee was fired for misconduct. D.C. Code § 51-110 (2001). The District of Columbia distinguishes between "gross misconduct" and "misconduct, other than gross misconduct," which we have referred to as "simple misconduct." D.C. Code § 51-110 (b)(1) and (2) (2001); see Chase v. District of Columbia Dep't of Employment Servs., 804 A.2d 1119, 1121-22 (D.C. 2002). Being discharged for gross misconduct has a different impact on unemployment benefits than being discharged for simple misconduct. See D.C. Code § 51-110 (b) (2001).*fn4
"[T]he question whether the employee committed misconduct must be resolved with reference to the statutory purpose, which is to protect employees against economic dependency caused by temporary unemployment." Chase, 804 A.2d at 1123 (quoting Butler v. District of Columbia Dep't of Employment Servs., 598 A.2d 733, 735 (D.C. 1991)); accord, The Washington Times v. District of Columbia Dep't of Employment Servs.,724 A.2d 1212, 1216-17 (D.C. 1999) ("The statute is remedial humanitarian legislation of vast import, and its provisions must be liberally and broadly construed.") (internal citations and quotation marks omitted). An employer seeking to prevent the payment of unemployment compensation bears the burden of proving that the employee engaged in misconduct (gross or otherwise). 7 DCMR § 312.2; Brown, 942 A.2d at 1123.*fn5 "In determining whether an employee has engaged in disqualifying misconduct, [the agency] cannot simply inquire whether the employer was justified in his decision to discharge the employee: 'Not every act for which an employee may be dismissed from work will provide a basis for disqualification from unemployment compensation benefits because of misconduct.'" Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 675 (D.C. 1984) (quoting Hawkins v. District Unemployment Compensation Bd., 381 A.2d 619, 622 (D.C. 1977)).
Gross misconduct is defined by regulation 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. One of the listed examples of gross misconduct is "[r]epeated absence or tardiness following warning." 7 DCMR § 312.4 (k). We have said that "[a]ttendance at work is an obligation which every employee owes to his or her employer, and poor attendance, especially after one or more warnings, constitutes misconduct sufficient to justify the denial of a claim for unemployment benefits." Shepherd v. District of Columbia Dep't of Employment Servs., 514 A.2d 1184, 1186 (D.C. 1986).
B. The Effect of Illness
District of Columbia regulations specify, however, that prior to a finding of gross misconduct, the employer must prove that the employee's actions were willful and deliberate. 7 DCMR § 312.3. "[T]he regulations . . . specifically provide that a component of 'gross misconduct' must include the fact that the conduct was done 'deliberately or willfully' or in 'disregard' of the employee's obligations and expected standards of behavior." Larry v. National Rehabilitation Hospital, No. 07-AA-1225, slip op. at 6 (D.C. June 11, 2009). "The fact of absences or tardiness alone cannot suffice as proof of gross misconduct, without consideration of the bases for such absences or tardiness. This is so even if the absences or tardiness are repeated, although such a factor might be relevant in assessing the ultimate fact of willfulness or deliberateness." Id. at 7 (footnote omitted).
Genuine illness that prevents an employee from coming to work negates the willfulness and deliberateness of her absenteeism, thereby preventing a finding of gross misconduct.*fn6 See Larry, No. 07-AA-1225, slip op. at 7 (Petitioner "proffered a reason for her absence [that is, illness] which, if credited, negated any assertion that she acted 'deliberately' or 'willfully.'");see also Gilbert v. Dep't of Corrections, 696 So. 2d 416, 418 (Fla. Dist. Ct. App. 1997) ("Temporary absence from work because of illness or injury does not constitute misconduct connected with work of a kind that disqualifies a discharged employee from receiving unemployment compensation benefits."); Garden View Care Center, Inc. v. Labor & Industrial Relations Commission of Missouri, 848 S.W.2d 603, 606 (Mo. Ct. App. 1993) (collecting cases from various jurisdictions; "absences due to illness or family emergency . . . cannot be willful misconduct"); Runkle v. Commonwealth, Unemployment Compensation Bd. of Review, 521 A.2d 530, 531 (Pa. Commw. Ct. 1987) ("An absence due to illness constitutes good cause and does not constitute willful misconduct."); Kirk v. Cole, 288 S.E.2d 547, 550 (W. Va. 1982) ("When the absence is due to a genuine illness , many courts adhere to the general rule that the absences do not constitute misconduct and will not disqualify an employee from receiving unemployment compensation." (emphasis in original)). See generally James D. Lawlor, Annotation, Discharge for Absenteeism or Tardiness as Affecting Right to Unemployment Compensation, 58 A.L.R.3d 674 § 14 (a), (b) (1974). To prove that an employee is guilty of gross misconduct, the employer must prove not only that she was absent without authorization, but also that the absences were willful and deliberate. Therefore, when the employee responds with proof of illness, the employer must demonstrate that her absence was not caused by genuine illness.
C. The ALJ's Findings and Conclusions
The ALJ found Ms. Morris guilty of gross misconduct based on her "refusal to comply with Employer's direct order that she report for work during the period January 4, 2007, through February 2, 2007." Judge England noted (correctly) that at the time he was hearing this case, there was "little guidance in the statutory or case law addressing the situation where, as here, an employee is discharged from employment for not complying with express orders from her employer to return to work, but asserts that had she returned to work, her health would have been seriously compromised." He therefore considered the "somewhat analogous" situation of an employee who has voluntarily quit her job, claiming that working conditions were detrimental to her health.
An employee who voluntarily quits her job is not entitled to unemployment compensation benefits unless she proves that she quit for good cause connected with the work. 7 DCMR §§ 311.1, 311.4; Hockaday v. District of Columbia Dep't of Employment Servs., 443 A.2d 8, 10 (D.C. 1982). Judge England found that, in this case, "the evidence to support a claim of good cause [to quit] due to illness or disability caused or aggravated by the work is mixed and would not carry Claimant's burden of proof." He concluded that the employer had proved gross misconduct by showing that Ms. Morris failed to come to work after being ordered to do so.
As the ALJ recognized, however, the "voluntary quit" analogy is imperfect because, where the employer has shown that the employee quit voluntarily, the pertinent regulation puts the burden of proof on the employee to demonstrate that she quit for good cause connected with the work. 7 DCMR § 311.4 ("If it is established that a leaving was voluntary, the claimant shall have the responsibility of presenting evidence sufficient to support a finding by the Director of good cause connected with the work for the voluntary leaving.").In contrast, 7 DCMR § 312.2 puts the burden on the employer to demonstrate that the employee is guilty of misconduct, gross or otherwise.This burden of proof (as distinguished from the burden of production) cannot be shifted to the employee.*fn7
D. Proving Gross Misconduct
As we noted above, the District of Columbia regulations require the employer to prove each element of gross misconduct. 7 DCMR § 312.2; The Washington Times, 724 A.2d at 1218. "Evidence by the employer of repeated absence or tardiness following repeated warnings may establish a prima facie case of gross misconduct. But when the employee proffers evidence suggesting that such actions were sufficiently excusable to negate willfulness or deliberateness, the burden shifts back to the employer to disprove such evidence. The ultimate burden of showing misconduct is always on the employer." Larry, No. 07-AA-1225,slip op. at 7 n.4.
The EPA made a prima facie showing that Ms. Morris engaged in gross misconduct by being repeatedly absent without authorization. At this point, Ms. Morris was required to produce evidence tending to establish that her absences were caused by genuine illness. She did so by introducing her own testimony, as well as doctors' notes and hospital records. This showing shifted the burden of production back onto the EPA to show that Ms. Morris's absences were not caused by illness. The employer may carry its ultimate burden of proof by, for example, proving that the illness was feigned or that the illness was not severe enough to have caused her to stay home from work.
Although, given the circumstances of this case, it certainly was relevant to inquire whether something in the workplace was causing Ms. Morris to be ill, she was not absolutely required to produce evidence of such a link.*fn8 To meet its burden of proof, the EPA was required to demonstrate that her absenteeism was willful and deliberate, and illness unconnected to the workplace may in some circumstances preclude such a finding.
We render no opinion as to whether the EPA presented enough evidence to satisfy its ultimate burden of proof because the ALJ did not determine whether Ms. Morris was actually ill, or would become ill if she returned to the workplace, and whether that illness prevented her from working from January 3 through February 2.*fn9 This is a question that the ALJ must determine in the first instance.
The parties presented contradictory evidence on the matter. To support her claim of illness, Ms. Morris presented letters from her doctors describing her severe allergies, which she claimed were triggered by the EPA work site. Ms. Morris also testified that she became seriously ill and required medical assistance when she entered the EPA buildings. On the other hand, the employer presented evidence that the EPA had conducted extensive testing on Ms. Morris's work environment and found that the air quality was superior to that of the outside air. Additionally, the employer questioned the reliability of Ms. Morris's doctors, and impeached the credibility of Ms. Morris herself.*fn10 It is clear that the EPA came to believe that Ms. Morris was feigning or grossly exaggerating her symptoms.*fn11
In Larry and in this case, we have addressed for the first time issues concerning the relationship between employee illness and proof of gross misconduct. Consequently, the ALJ may wish to take additional evidence from the parties to clarify whether Ms. Morris suffered from a serious illness. If he determines (1) that she did, and that the illness prevented her from coming to work, or (2) that she would have become seriously ill upon arriving at work, Ms. Morris will not be guilty of gross misconduct. See Larry, No. 07-AA-1225, slip op. at 7 ("it stretches any reasonable definition of [the word 'deliberately'] as used in the regulation to think that a seriously ill person would be expected to show up for  duty").*fn12
In light of these unresolved questions, we remand this matter to the OAH for further proceedings not inconsistent with this opinion.