The opinion of the court was delivered by: Terry, Senior Judge
Petition for Review of a Decision of the Office of Administrative Hearings (ESP-111950-08)
Before KERN, TERRY, and STEADMAN, Senior Judges.
This is the latest in a series of recent cases that turn on the distinction between "misconduct" and "gross misconduct," as those terms are used in the statute and regulations which govern the availability and amount of unemployment compensation benefits.
Petitioner, Joyce Benjamin, seeks review of a final order of the Office of Administrative Hearings (OAH) which denied her application for unemployment compensation. A claims examiner with the Department of Employment Services (DOES), and subsequently the OAH, ruled that Ms. Benjamin was disqualified from receiving benefits because she had been fired from her employment for misconduct. We discern no error in that ruling. We hold, however, that a remand is necessary because both the DOES claims examiner and the OAH erroneously applied to Ms. Benjamin the penalties for an employee terminated for gross misconduct without making an explicit finding that she was terminated for gross misconduct, as opposed to "simple" misconduct - and, most importantly, without an explicit finding by the OAH that the misconduct was willful or deliberate, a prerequisite to a denial of benefits on the ground of gross misconduct. Because there are important distinctions between the two types of misconduct, particularly in the consequences to the terminated employee, we must remand the case for a de novo exercise of administrative discretion.
On September 11, 2008, Ms. Benjamin was fired from her job as a Unit Clerk at the Washington Hospital Center, where she performed various administrative duties, such as transcribing orders, answering telephones, and assisting visitors at the front desk. Ms. Benjamin had worked for the hospital for more than six years, since August of 2002, with one break in service for about two months in 2008. At the start of her employment, she signed a form acknowledging receipt of an Employee Handbook, which stated, among other things, that "excessive absenteeism or lateness" was considered a "major violation" of work rules. Pursuant to a Collective Bargaining Agreement (CBA) with Local 722 of the Service Employees International Union, excessive lateness was defined as "the failure of a full-time employee to report to work within less than seven (7) minutes of the scheduled start time for more than six (6) times over [a] twelve-month period." The CBA further outlined a series of progressive sanctions for such violations, with a first violation resulting in a written warning, a second resulting in a suspension, and a third resulting in discharge. Ms. Benjamin was aware of this three-step process as set forth in the CBA. There is no evidence in the record of any workplace violations from August 2002 to April 2007.
In April 2007 Ms. Benjamin began working in Unit 4NW. On May 16 her supervisor in that unit, Bonnie Sines, issued a "Step I" warning notice to Ms. Benjamin for excessive tardiness. The notice listed nine instances of tardiness from April 12 to May 9, and stated that further violations would "result in further discipline up to and including termination." On September 20, 2007, Ms. Sines issued a "Step II" suspension notice for seven instances of tardiness between August 2 and September 14. Ms. Benjamin was suspended for two days and was warned that further violations would "lead to termination for cause."
On January 23, 2008, Ms. Sines issued a "Step III" termination notice to Ms. Benjamin, based on an alleged absence from the work area on January 16. That notice was later rescinded. Thereafter, on April 8, Ms. Benjamin signed a "Last Chance Agreement" stating that "any violation . . . including but not limited to: excessive absences and/or tardiness . . . shall be deemed just cause for immediate discharge." Ms. Benjamin was then transferred to Unit 4E, where her supervisor was Quindella Williams.
On September 11, 2008, Ms. Williams issued to Ms. Benjamin a notice of termination for "excessive tardiness," which Ms. Benjamin signed. The notice listed eight instances of tardiness between June 13 and September 11. As a result, Ms. Benjamin was fired for violating the terms of the CBA and the Last Chance Agreement, and for reaching the third disciplinary step.
Upon her discharge, Ms. Benjamin applied to DOES for unemployment compensation benefits. After a hearing, a claims examiner ruled that she was ineligible for compensation because the evidence showed that she had been discharged for misconduct. The claims examiner did not expressly state that Ms. Benjamin had been discharged for "gross misconduct." However, in finding that she was terminated for "misconduct," the examiner cited D.C. Code § 51-110 (b)(1) (2001), the specific statute limiting unemployment benefits for employees terminated for "gross misconduct." Further, the examiner stated that Ms. Benjamin would be ineligible for benefits "until such time as you have been employed in each of ten (10) weeks (whether or not consecutive), have earnings from this employment equal to not less than ten (10) times your Weekly Benefit Amount, and become unemployed through no fault of your own." This language mirrors that found in section 51-110 (b)(1), which prescribes a period of ineligibility for anyone who has been terminated for gross misconduct.*fn1 The examiner specifically found, "You were discharged from your job with your most recent employer for excessive tardiness that continued after you had been warned. . . . Your unexcused and repeated failure to report to work on time constitutes a willful disregard of your employer's interest."
Ms. Benjamin appealed from the claims examiner's decision to the OAH, where an administrative law judge (ALJ) held an evidentiary hearing and, in due course, issued a final order. The ALJ, like the claims examiner, did not find that Ms. Benjamin had been discharged for gross misconduct. Rather, in affirming the claims examiner's decision, the ALJ stated, "Employer has shown that Claimant's conduct, which forms the bases for the disciplinary notices, occurred and is misconduct." However, among her findings, the ALJ recited the definition of gross misconduct found in 7 DCMR § 312.3. The ALJ also noted that, in accordance with 7 DCMR § 312.4, gross misconduct may include repeated absence or tardiness after warning.*fn2
The ALJ did not make any findings about how, if at all, Ms. Benjamin's tardiness had affected the administration of her employer's business, or whether Ms. Benjamin's conduct had been willful or deliberate. Ms. ...