Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (ESP 109906-08).
The opinion of the court was delivered by: Oberly, Associate Judge
Submitted October 20, 2009
Before RUIZ and OBERLY, Associate Judges, and FARRELL, Senior Judge.
Under District law, a person who is fired from his job for "gross misconduct" is not eligible to receive unemployment compensation benefits until after the passage of a substantial waiting period, during which he must earn a prescribed level of wages with another employer. See D.C. Code § 51-110 (b) (2001); 7 DCMR § 312.3. The issue on appeal is whether this rule applies to Henry Odeniran, an employee who was fired from his job because he intentionally failed to do his work throughout a single day despite being chided by his superiors. We answer this question in the negative, reverse an Office of Administrative Hearings Order reaching a contrary conclusion, hold that Odeniran was fired for simple, not gross, misconduct, and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
Odeniran worked at Hanley Wood, LLC, a real estate market research firm,*fn1 from June 11, 2007 until March 17, 2008. Guy Sheetz, a Regional Manager at Hanley Wood, "clearly explained" to Odeniran when the latter was interviewing for a job at Hanley Wood that the company expected a consulting position to "open up" in the near future. Based on Sheetz's statements, and expecting to receive a promotion to a consulting position within a few months, Odeniran took a pay cut from the job that he held at the time and joined Hanley Wood as a Research Associate.
Unfortunately, Odeniran came to have an unhappy experience at Hanley Wood. To begin with, as the Administrative Law Judge hearing the case found, "because of the downturn in the real estate market, [Hanley Wood] disbanded its consulting business, so a promotion to [a consulting position] was no longer an option" for Odeniran. Odeniran also felt that his responsibilities as a Research Associate increased several times without a corresponding raise in pay. Moreover, Odeniran believed that Hanley Wood's parking reimbursement policy failed adequately to take into account the travel expenses that he incurred as part of his duties. To ameliorate the parking costs, Odeniran asked that he be permitted to work from home.
On Wednesday, March 12, 2008, Odeniran approached Sheetz with what Sheetz termed an "ultimatum": as the ALJ found, Odeniran told Sheetz that he (i.e., Odeniran) "needed to make more money and be able to work from home, or he would have to find another job." Sheetz responded that a pay raise for Odeniran was not in the cards "due to market conditions." Furthermore, although Hanley Wood permitted some employees to work from home, Sheetz felt that Odeniran's performance at Hanley Wood did not merit the telecommuting privilege.
On Friday, March 14, 2008, two days after Sheetz rejected Odeniran's "ultimatum," Odeniran told Sheetz via e-mail that he was taking a sick day. Sheetz testified that he "responded right away," telling Odeniran about two deadlines that Odeniran had that day. Odeniran, according to Sheetz, never replied to Sheetz's e-mail and missed both deadlines.
Odeniran was fired the following Monday, March 17, with the events leading up to his termination evolving as the day went on. At approximately 11:00 a.m. - two hours after Odeniran had arrived at work - Sheetz brought Odeniran "in" (presumably to his office) to "see if he was all right [sic]." Sheetz testified that it "appeared that, you know, walking by his office, [Odeniran] wasn't making phone calls, he wasn't doing any kind of work related to Hanley Wood." Sheetz, therefore, "advised [Odeniran that Sheetz] had been by his desk a couple times and [Odeniran] said he had a busy schedule." Sheetz also told Odeniran that Sheetz "needed him to concentrate on the work that we had to do, already behind because of Friday and we had some work to do."
Sheetz believed that Odeniran failed to do any work as the day went on. Thus, one half-hour after their initial conversation, Sheetz saw that Odeniran "was still on the Internet" and not performing his assigned tasks. By 3:00 p.m., Sheetz believed that Odeniran still "clearly" had done "no work." Sheetz asked Odeniran several times what he was working on; Odeniran responded that he was "busy with other stuff," but refused to provide details, which caused Sheetz to believe that Odeniran was lying.
Concerned about Odeniran's apparent failure to do his job, Sheetz contacted Margaret Connery, the Human Resources Director for Hanley Wood. Connery, who works out of a different office, telephoned Odeniran to ask what he had been working on, whether he would be reporting his time as "work hours," and whether he was working on a company computer. Odeniran told Connery that he preferred not to answer these questions. At the hearing on Odeniran's eligibility for unemployment compensation benefits, Odeniran testified that he "did not want to have that conversation with her in front of the other research associates because [he] felt that [Connery's questions related to] private business that should have been talked about in another, in another environment, in another more private room." It is not clear from the transcript whether Odeniran explained this concern to Connery when they spoke.
Odeniran was fired at the end of the day. According to Sheetz, Odeniran's March 12 "ultimatum" and the deadlines that Odeniran missed on March 14th, when he took a sick day, were "problem[s]" for Hanley Wood. As the ALJ found, however, Hanley Wood ultimately fired Odeniran not for the ultimatum or the missed deadlines, but rather due to Odeniran's "fail[ure] to perform his duties on March 17, 2008." As Sheetz summarized in his closing argument: "You know, for the last eight months, you know, dating back to June 11th I had no doubt that Henry's attentiveness and job responsibilities and duties were performed. However the last week leading up to it was clearly the problem, most importantly the last day. Clearly, you know, as the evidence states, the work just was not being performed on [the 17th], so Hanley Wood does not pay employees for not doing anything. They do not pay employees for using their tablets, their property for personal use, things of that nature. So, unfortunately, you know, [Odeniran's] last day was on March 17th just due to the lack of work and effort that was being produced on the 17th." Sheetz also found it troublesome that Odeniran evidently had no "indication of planning on doing any work that particular day," notwithstanding that Sheetz and others had "talk[ed]" to Odeniran "multiple times." Odeniran, for his part, contended that Hanley Wood fired him because he had asked for a raise and to work from home, not because he failed to get work done on March 17th.
The ALJ credited Hanley Wood's "version of the material facts." The ALJ noted that whereas Hanley Wood's witnesses gave "detailed and consistent testimony" regarding the events of the 17th, Odeniran provided only "vague and incomplete responses to that testimony." Moreover, the ALJ thought that Odeniran's "disproportionate" focus at the hearing "on the several bases for his disgruntlement with [Hanley Wood], rather than on the question of whether he was performing his duties diligently on March 17, 2008" indicated that Odeniran in fact was not working on the day he was fired. Ultimately, the ALJ ...