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Brown v. Hawk One Security

September 9, 2010


Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP110138-08).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued April 1, 2010

Before REID, GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges.

In this appeal, petitioner Angel Brown challenges a final order (the "Order") from the D.C. Office of Administrative Hearings ("OAH"), which affirmed a determination by the D.C. Department of Employment Services ("DOES") to deny petitioner's claim for unemployment benefits. Brown had been employed by respondent Hawk One Security ("Employer" or "respondent") as a Special Police Officer at Ballou Senior High School until she was fired for fighting another uniformed, on-duty officer in the school hallway. Petitioner argues that OAH's conclusion that she was fired for "gross misconduct" is not supported by substantial record evidence. We disagree, and we affirm.

I. Factual Background

The material facts in this case are largely undisputed. Petitioner concedes that she was involved in a physical altercation with her colleague, Sergeant Diane Williams, in a hallway at Ballou Senior High School while both were on duty and in uniform on March 11, 2008. The circumstances leading up to the incident are also undisputed. Employer hired petitioner as a Special Police Officer about a year earlier, on March 22, 2007, and petitioner's training included an Employer-sponsored course in conflict resolution and public relations. At some point prior to the morning of the incident, a "Special Education" student threw a piece of paper at petitioner. Then, as described by OAH, [t]he student was taken to the security office together with [petitioner], who said in front of the student something to the effect of "if he hits me in the face again with another piece of paper it won't be that's it, that's all." At this point, another Special Police Officer, Sergeant Diane Williams, told [petitioner] that she should not make threats to a student. After this, [petitioner] told other Special Police Officers and several school staff members that Sgt. Williams had told the student to go home and tell his mother that [petitioner] made a threat against him.

On the morning of March 11, 2008, Sgt. Williams confronted [petitioner], while [petitioner] was on duty and in uniform, in the vicinity of the school cafeteria, while students were present.

Sgt. Williams asked [petitioner] if she could talk with [petitioner]. [Petitioner] responded by saying that she could not speak with anyone without her union representative or supervisor being present. Sgt. Williams responded by saying something to the effect of "if you cannot talk to me without a union representative, then keep my name out of your mouth before I smack the [expletive] out of you." Sgt. Williams then turned away and proceeded down the hallway. [Petitioner] came up behind Sgt. Williams, circled around her and said at least twice, in a taunting manner, something to the effect of "Who are you going to smack?" Sgt. Williams then hit [petitioner] in the mouth.*fn1

At that point, Brown and Williams were forcibly separated and escorted to the school's security office by a third on-duty security officer. Following Employer's investigation into the incident, Brown and Williams were both terminated. Petitioner then applied for unemployment compensation, which the DOES claims examiner denied, based upon his finding that Brown "was discharged... for fighting on the job."

OAH affirmed the decision of the DOES claims examiner, finding that Brown's conduct constituted "gross misconduct" on two different theories, each of which was sufficient to deny her claim for unemployment benefits. First, OAH found that Brown's actions "deliberately or willfully threatened or violated Employer's interests in maintaining the peace and setting a good example to the students." Second, OAH concluded that Brown "also showed a disregard for standards of behavior which Employer had a right to expect of its employee."

II. Legal Analysis

As we noted recently in Larry v. Nat'l Rehab. Hosp., 973 A.2d 180, 184 (D.C. 2009), this court has a "limited function in cases of this kind, which is simply to determine whether there is substantial evidence to support the decision of OAH." (internal quotation marks omitted). Indeed, we must affirm the OAH's decision as long as "(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." Hegwood v. Chinatown CVS, Inc., 954 A.2d 410, 412 (D.C. 2008) (internal quotation marks omitted). "We defer to agency findings of fact so long as they are supported by substantial evidence," which means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 412 (internal quotation marks omitted).

Petitioner's principal argument on appeal is that her behavior did not constitute "gross misconduct." See D.C. Code § 51-110 (b)(1) (2001); 7 DCMR § 312.3.*fn2 At the outset, petitioner contends that OAH improperly mischaracterized her conduct as "fighting" because she never touched or even attempted to touch Sgt. Brown. She argues that her behavior could not possibly constitute "gross misconduct" because she was merely the victim of an assault. But OAH considered this argument and rejected it, and we cannot say that OAH's conclusions are not supported by substantial evidence. It is clear from the record that OAH's determination was not based upon a misunderstanding of Brown's involvement in the incident. Rather, OAH fully recognized that petitioner did not touch Sgt. Williams, and its conclusion that she engaged in "gross misconduct" was clearly predicated upon substantial record evidence about petitioner's own actions that preceded the physical contact. See, e.g., Order at 7 ("Although Sgt. Williams physically assaulted [petitioner], [petitioner] deliberately provoked the assault.").

Relatedly, petitioner argues that her conduct did not amount to "gross misconduct" because, at worst, it was conduct "other than gross misconduct" as that term is defined in 7 DCMR § 312.5.*fn3 As we observed in Doyle v. NIA Personnel, Inc., 991 A.2d 1181, 1182 n.1 (D.C. 2010), we have "grappled repeatedly" with similar ...

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