*fn1,The opinion of the court was delivered by: Oberly, Associate Judge,Carl J. Schifferle, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for petitioner.,DISTRICT OF COLUMBIA DEPARTMENT OF MENTAL HEALTH, PETITIONER, v. STACY HAYES, JR., RESPONDENT." />

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District of Columbia Dep't of Mental Health v. Hayes

September 20, 2010 *fn1

DISTRICT OF COLUMBIA DEPARTMENT OF MENTAL HEALTH, PETITIONER,
v.
STACY HAYES, JR., RESPONDENT.



The opinion of the court was delivered by: Oberly, Associate Judge

Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (ESP-110430-08)

Argued September 10, 2010

Before THOMPSON and OBERLY, Associate Judges, and FARRELL, Senior Judge.

Stacy Hayes, a former employee at Saint Elizabeths Hospital, had a history of poor work attendance that was caused in part by his substance abuse. In January 2008, Hayes pleaded guilty in Maryland state court to misdemeanor possession of a controlled substance other than marijuana. Following a two-month incarceration, Hayes returned to work, but he was told that there was a possibility that he would be fired. Faced with that possibility, Hayes quit and filed for unemployment compensation benefits. A claims examiner within the District of Columbia Department of Employment Services rejected Hayes's claim. Hayes appealed that determination to the Office of Administrative Hearings, and an administrative law judge within OAH reversed the claims examiner's determination. Hayes's employer, the Department of Mental Health ("DMH"), has petitioned this court for review of the ALJ's ruling. DMH first argues that Hayes filed his appeal of the claims examiner's ruling out of time. DMH's second argument is that the ALJ erred in ruling that Hayes was not fired for gross misconduct. We agree with DMH on the merits and therefore grant the petition for review and reverse the ALJ's ruling.

A. Facts and Procedural History

The District of Columbia Department of Mental Health operates Saint Elizabeths Hospital, a psychiatric hospital located in the District. Most of the patients at the hospital are psychiatric patients; as the ALJ found, many of the patients have "legal" and/or "criminal issues," and are referred to the hospital for competency evaluations.

Hayes began working at Saint Elizabeths in November 1997, where, during the time period relevant to this case, he was employed as a Forensic Psychiatric Technician. According to Nurse Diane Jones, Hayes's second-line supervisor, Hayes's duties included "direct patient care, ensuring the safety and security of the building and the patients, documentation and to also be a team member for developing treatment plans and patient activities."

When Jones became Hayes's supervisor in January 2007, she was advised by the previous assistant director of nursing that Hayes had a poor attendance record - that is, Hayes "had a leave problem, that he was not coming to work or he was coming to work late or he wasn't coming to work at all and had not called." Jones was led to believe that Hayes's poor attendance record was caused by a substance abuse problem.

In January 2008, Hayes pleaded guilty in Prince George's County, Maryland, to misdemeanor possession of a controlled substance other than marijuana. Hayes was sentenced to four years' imprisonment, with three years and nine months suspended. That same month, Hayes called Jones, told her about the conviction, and requested leave without pay for the period of time that he would be incarcerated in Prince George's County.

Hayes's sentence was reduced for good time, and he returned to work on March 9, 2008. At some point after his return, the Chief Executive Officer of Saint Elizabeths directed Jones to initiate disciplinary action against Hayes. Jones recalled that "[i]t was felt by administration at that time that an employee that has been incarcerated on controlled substance abuses should not be working around patients." Jones explained that there was a concern about patients being treated by someone with a conviction. She also related that the CEO of Saint Elizabeths felt that Hayes "would not be a proper role model for patients that were trying to recover." On May 9, 2008, knowing that he would be fired, Hayes preemptively tendered his resignation.

On May 30, 2008, a DOES claims examiner denied Hayes's claim for unemployment benefits and mailed that determination to Hayes. Hayes testified that he was "confused" about when the time for appeal started to run. Therefore, "approximately five days" after he received the determination, Hayes called DOES, where an unindentified person advised him that he had until June 16th to file his appeal. The ALJ credited Hayes's testimony on this point.

With respect to the legal issues, the ALJ first ruled that Hayes's appeal of the claims examiner's ruling was timely. On the merits, the ALJ ruled that when Hayes resigned from his job, he was "faced with imminent discharge," which meant in turn that he did not quit his job voluntarily within the meaning of the unemployment statute. Petitioner does not challenge this aspect of the ALJ's ruling. Petitioner does challenge, however, the ALJ's conclusions that Hayes's appeal to the OAH was timely and that petitioner failed to prove that Hayes was fired for gross misconduct, see D.C. Code § 51-110 (b)(1) (2001); 7 DCMR § 312.3.

B. Standard of Review

We "must affirm an agency's decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Travelers Indemn. Co. of Illinois v. District of Columbia Dep't of Emp't Servs., 975 A.2d 823, 826 (D.C. 2009) (citing D.C. Code ยง 2-510 (a)(3)(A) (2001)). "'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.'" Morris v. EPA, 975 A.2d 176, 180 (D.C. 2009) (quoting McKinley v. District of Columbia Dep't of Emp't Servs., 696 A.2d 1377, 1383 (D.C. 1997)). We "defer to an agency's interpretation of a statute or regulation it is charged with implementing if it is reasonable in light of the language of the statute (or rule), the legislative history, and judicial precedent." Travelers Indemn. Co., 975 A.2d at 826. We do not, however, "accord the same deference to the statutory interpretations of the Office of Administrative Hearings." Id. at n.3 (citing Washington v. District of Columbia Dep't of Pub. Works, 954 A.2d 945, 948 (D.C. 2008) (noting that "OAH is vested ...


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