Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP111760-08)
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:
Submitted September 27, 2010
Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and REID,*fn1 Associate Judge, Retired.
Petitioner Galal Badawi seeks review of an Office of Administrative Hearings ("OAH") order denying his claim for unemployment compensation benefits. An Administrative Law Judge ("ALJ") of the OAH affirmed the determination of the Department of Employment Services ("DOES") concluding that Badawi was ineligible for unemployment compensation benefits because he was fired for gross misconduct. Badawi had been employed by respondent Hawk One Security ("Hawk One") as an armed Special Police Officer ("SPO") at a government building located at 609 H Street, N.E., in the District of Columbia, until he was fired based on three reasons arising out of a single incident: (1) violating Hawk One's firearms policy by removing his firearm while on duty and leaving it in an unsecured desk drawer; (2) inattentiveness to duties; and (3) being out of uniform.
Recently, several of our unemployment compensation cases have addressed and attempted to clarify the often-blurred distinction between "gross misconduct" and "simple misconduct." In this case, we conclude that the ALJ committed legal error because he failed to make findings of fact as to whether Badawi's proffered reason for his conduct was "sufficiently excusable" - a critical determination for assessing whether, as a matter of law, Badawi's conduct constituted simple or gross misconduct under our statutory scheme. Furthermore, the ALJ erred by failing to consider the two statutory levels of misconduct recognized under our law, simple and gross. Usually, we would remand the case to the ALJ for further fact finding. In this case, however, even if the ALJ were to make a finding that Badawi's proffered reason was not "sufficiently excusable," the substantial evidence in the record would establish only simple misconduct as a matter of law. Therefore, we are constrained to reverse the ALJ's determination that Badawi's actions amounted to gross misconduct, to hold that Badawi's actions amounted to simple misconduct, and to remand for further proceedings consistent with this opinion.
I. Factual and Procedural Background
Badawi worked for Hawk One as an SPO stationed at the front lobby security desk in a government office building from July 2, 2005, until he was terminated on September 9, 2008. On September 8, 2008, Badawi worked his daily shift from 4:00 p.m. to 12:00 a.m. He took an unauthorized break that day to pray and end his fast in observance of the Muslim religious holiday of Ramadan. Another officer passed Badawi's post while he was praying and reported the incident to Badawi's supervisor. The officer reported that he found Badawi without his gun and shoes, kneeling and praying behind the security desk, while people were walking through the lobby area. Badawi had removed his gun and placed it in the desk drawer at his security post before removing his shoes and kneeling behind the desk to pray. He had removed the bullets from the gun before placing it in the desk drawer. Hawk One subsequently fired Badawi because he removed his gun while on duty, in violation of Hawk One's firearms policy, was inattentive to duty, and was out of uniform. Prior to this incident, Badawi had never been reprimanded by Hawk One for any work-related violations. Badawi filed his claim for unemployment compensation benefits with DOES within a few weeks of his firing. DOES found that Badawi's violation of Hawk One's firearms policy was "willful and constitute[d] misconduct," and that he was therefore disqualified from receiving benefits.*fn2 Badawi appealed the DOES determination, and an evidentiary hearing was held before the ALJ at OAH.
Hawk One's sole witness at the hearing was Captain Frederick Gamble, Badawi's supervisor. Gamble stated that at approximately 6:00 p.m., on September 8, 2008, he received a dispatch call stating that a D.C. Protective Services ("DCPS")*fn3 officer was at the building and requesting a supervisor's immediate response. When Gamble arrived at the building ten minutes later, the building was unlocked, and he saw DCPS Officer Williams with Badawi. Williams informed Gamble that when he arrived at the building at 5:50 p.m., he found Badawi without his shoes, kneeling and praying on a rug behind the security desk. Badawi did not have his gun. Williams noticed that people were passing through the lobby area during this time. Williams asked Badawi where his weapon was, and Badawi pulled his service revolver out of the desk drawer. Badawi acknowledged to Gamble that Officer Williams' statements were true. Gamble then took Badawi's weapon, called the dispatcher's office to have another SPO replace Badawi, and proceeded to write the incident report and employee reprimand reports, which Badawi signed.
Gamble's testimony included a description of the standard procedure for scheduled breaks when a Hawk One SPO works an eight-hour shift. He testified that there are Hawk One employees called "breakers," who rotate from post-to-post to relieve SPOs for scheduled breaks by taking the weapon from the SPO in a secured area and assuming the duties of that post while the SPO is on break. Gamble testified that because Badawi's shift began at 4:00 p.m., the breaker would not have come on site until 6:00 or 7:00 p.m. Additionally, he stated that because he was the one who assigned the breakers, he knew that there was one scheduled for Badawi's shift on September 8, 2008. Gamble testified that after he arrived at the building at approximately 6:10 p.m., he called the breaker to tell him about the incident, and the breaker then replaced Badawi at his post.
Badawi disputed Gamble's testimony with respect to four material facts. First, he disputed the time at which he was seen praying at work. He contended that he prayed for approximately three minutes between 7:10 and 7:15 p.m. Second, he claimed that there were no people coming in and out of the building at the time he was praying. Third, he claimed that after 7:00 p.m. every day, the building doors were locked so no one could come inside or go out. Only Badawi and DCPS had the master key. Finally, Badawi claimed that, since his hiring, he worked his eight-hour shifts without ever receiving relief from a breaker. The ALJ resolved the first three disputed material facts by discrediting Badawi's testimony and crediting Gamble's testimony. As such, the ALJ found that the time of the incident was approximately 6:00 p.m., and that there were people in the building as Gamble had testified. Thus, the ALJ concluded that Badawi "was not using all of his senses to ensure that the employees and the public in an unlocked building were protected at all times at his workplace." However, the ALJ failed to make findings on the last disputed fact - whether Badawi had ever been provided relief from a breaker. We think this was a critical omission by the ALJ because whether Badawi ever received relief from a breaker was relevant to his state of mind and the deliberateness or willfulness of his actions. Badawi's state of mind was a critical factor in resolving the ultimate legal question of whether his conduct, as a matter of law, amounted to simple or gross misconduct.
Despite failing to make findings on the last disputed fact, the ALJ affirmed the DOES determination, finding that Badawi's conduct amounted to gross misconduct.*fn4 The ALJ determined that Badawi's conduct amounted to gross misconduct based on 7 DCMR § 312.3 because "[b]ased on the totality of the evidence . . . [Badawi's] actions were a willful violation of [Hawk One's] interests, and . . . disregard[ed] . . . the standards of behavior which [Hawk One] had a right to expect of its employees . . . ." The ALJ found, based upon the evidence presented at the hearing, that "[Hawk One] considered the three reasons for [Badawi's] discharge [firearms policy violation, inattentiveness to duties, and being out of uniform] mutually dependent, and proved each one by a preponderance of the evidence." The ALJ also found, however, that Hawk One did not consistently enforce the firearms policy that Badawi violated by removing his gun. Badawi timely filed his petition for review of the ALJ's Order with this court, and he challenges the ALJ's determination of gross misconduct and the same facts that were in dispute at the hearing.*fn5
Our review of agency decisions is "limited," and we review OAH decisions solely to determine whether "(1) [the ALJ] made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) [the ALJ's] conclusions flow rationally from its findings of fact." Larry v. Nat'l Rehab. Hosp., 973 A.2d 180, 182-83, 184 (D.C. 2009) (quoting Rodriguez v. Filene's Basement Inc., 905 A.2d 177, 180-81 (D.C. 2006)) (internal quotation marks omitted). We defer to the ALJ's factual findings as long as "they are supported by substantial evidence." Hegwood v. Chinatown CVS, Inc., 954 A.2d 410, 412 (D.C. 2008)(quoting Giles v. District of Columbia Dep't of Emp't Servs., 758 A.2d 522, 524 (D.C. 2000)) (internal quotation mark omitted). Substantial evidence is relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Giles, supra, 758 A.2d at 524 (quoting Gardner v. District of Columbia Dep't of Emp't Servs., 736 A.2d 1012, 1015 (D.C. 1999)) (internal quotation mark omitted). However, we review the ALJ's legal conclusions of whether a terminated employee's actions constitute gross or simple misconduct de novo. Odeniran v. Hanley Wood, LLC, 985 A.2d 421, 424 (D.C. 2009).
As defined in 7 DCMR § 312.3, "gross misconduct" is: 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 ...