On Petition for Review from the Office of Administrative Hearings (ESP-112167-08)
The opinion of the court was delivered by: Thompson, Associate Judge
Submitted December 7, 2010
Before REID and THOMPSON,Associate Judges, and SCHWELB, Senior Judge.
THOMPSON, Associate Judge: Petitioner Belynda Bowman-Cook seeks review of a decision by the Office of Administrative Hearings ("OAH") that she was ineligible to receive immediate unemployment compensation benefits because she was terminated from her job with respondent Washington Metropolitan Area Transit Authority ("WMATA") for conduct that constituted "other than gross misconduct."*fn1 Because the factual findings made by the OAH administrative law judge ("ALJ") were not adequate to support the determination that the conduct for which petitioner was terminated was intentional, and because petitioner was precluded from presenting potentially relevant evidence, we reverse and remand.
I. Petitioner was employed for several years as an electrical helper at WMATA. WMATA's personnel policy manual provides that when an employee is absent from the job for medical reasons, she must "provide a current telephone number and address to the supervisor," "be available to receive telephone calls at this telephone number," and "accept mail sent by [WMATA] to this address."*fn2 During late June 2008, petitioner became ill, called in sick, and never returned to work prior to being terminated. According to the evidence presented by WMATA at an evidentiary hearing before OAH, on July 10, 2008, WMATA mailed a certified letter to petitioner's address (her sister's home) and instructed her to report to her supervisor and to provide medical documentation regarding her absence from work. On August 29, 2008, after the July 10 letter (as well as an earlier certified letter from WMATA advising petitioner of a change in her work schedule) had been returned by the United States Postal Service as unclaimed, WMATA sent another certified letter warning petitioner that further failure to accept correspondence would result in her discharge. When the August 29, 2008 letter was returned as undeliverable, WMATA sent petitioner an email on September 5, 2008, advising her that it would be mailing her another letter (a copy of which, the email stated, was "attached" to the email) and that she should comply with the letter's instructions. On September 8, 2008, petitioner responded to WMATA by email, stating:
PLEASE DO NOT CALL MY HOUSE OR E-MAIL ME AGAIN!
I am in treatment and I am unaware of a return to duty date. I do not need your continued harrassment (sic) or threats concerning my employment. Please, Please leave me alone.
On September 29, 2008, WMATA sent petitioner a letter notifying her that she had been terminated. WMATA's representative at the hearing confirmed that petitioner was terminated for "fail[ing] to accept mail as she is required to do at the address that she had given WMATA as her current address."
After a Department of Employment Services claims examiner denied petitioner's claim for unemployment benefits, the ALJ conducted the evidentiary hearing on February 9, 2009. In his May 13, 2009 decision following that hearing, the ALJ found that WMATA "fired [petitioner] for failing to accept certified mail during a medical absence, which it considered a violation of its workplace rules." The ALJ then went on to consider whether petitioner's conduct constituted "gross misconduct," a term defined by the applicable regulations to mean "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 (2006). The ALJ recognized that "[i]f a violation of the employer's rules is the basis for a disqualification from benefits," to uphold the denial of benefits the ALJ must find that "the existence of the employer's rule was known to the employee," that "the employer's rule is reasonable," and that "the employer's rule is consistently enforced by the employer." 7 DCMR § 312.7. The ALJ found that petitioner had access to and was aware of WMATA's policy about employees on sick leave accepting mail from WMATA, but that WMATA, which bore the burden of proof of misconduct, see 7 DCMR § 312.2, had presented no evidence to show that it consistently enforced its rule about employee acceptance of mail during a medical absence.
The ALJ next considered whether WMATA had proven "gross misconduct" by showing that petitioner had "disregard[ed] standards of behavior which an employer has a right to expect of its employee." 7 DCMR § 312.3. The ALJ reasoned as follows:
Considering the record as a whole, I conclude that Employer has proven that Claimant was discharged for misconduct. Although Claimant's sister testified credibly that Claimant required care and assistance when she was ill, the evidence presented at the hearing does not establish that Claimant was actually so incapacitated from June 30, 2008, through September 25, 2008, that she was incapable of accepting letters sent by Employer to her then-current address. Employer had a material interest in determining when Claimant would be returning to work, and Employer also had a reasonable expectation that Claimant would make a good faith effort to receive letters mailed to her usual contact address.
The one direct communication from Claimant to Employer during the period in question was Claimant's reply email to Mr. Kellar on September 8, 2008. In that email, Claimant demanded that Employer cease communications with her entirely: "Please, Please leave me alone." Exhibit 206. That email suggests Claimant was not open to receiving communications from Employer during her absence. Considering the attitude expressed in the email and the credible testimony and documentary evidence indicating that mail was sent by Employer to Claimant and not received, I conclude that Claimant breached an obligation to her Employer and thereby violated a material Employer interest. 7 DCMR 312.5.
The ALJ nevertheless found that petitioner's illness, shown through
"plausible" testimony from petitioner's sister and daughter to have
"interfere[d] in a significant way with [petitioner's] ability to
manage daily tasks and interpersonal relations," was a mitigating
circumstance that precluded a finding that petitioner's misconduct
entailed "the level of willfulness or deliberateness necessary for a
finding of gross misconduct." Accordingly, the ALJ held that
petitioner's conduct constituted "simple misconduct"*fn3
that disqualified her "from receiving unemployment ...