Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (DOES46-11)
The opinion of the court was delivered by: Schwelb, Senior Judge:
Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
On February 24, 2011, an Administrative Law Judge
(ALJ) of the Office of Administrative Hearings (OAH) issued a Final Order affirming the denial by a Claims Examiner of the Department of Employment Services (DOES) of a claim by Keyuon M. Hamilton ("Ms. Hamilton" or "Claimant") for unemployment compensation benefits. Ms. Hamilton‟s request was based on her discharge on October 11, 2010, by Hojeij Branded Foods, Inc. ("Hojeij" or "Employer") for allegedly excessive absenteeism and tardiness. The ALJ held that Ms. Hamilton was disqualified from receiving unemployment compensation benefits on account of her "gross misconduct."
Ms. Hamilton has asked this court to review the ALJ‟s decision. She contends that the ALJ did not adequately consider, and in some cases did not address at all, circumstances which made her absences from work unavoidable, and that Hojeij has not demonstrated either "gross misconduct" or "simple misconduct" on her part.
Ms. Hamilton was an "at will" employee, and we do not suggest, in light of Ms. Hamilton‟s absences described below, that Hojeij lacked justification for discharging her. We agree with Ms. Hamilton, however, that as a matter of law, the record before the ALJ does not support a finding of gross misconduct, or, indeed, of any misconduct at all. Accordingly, we reverse the decision of the OAH and direct that Ms. Hamilton‟s claim for unemployment compensation benefits be granted.
I THE PROCEEDINGS BEFORE THE ALJ
At the hearing before the ALJ, Ms. Hamilton testified on her own behalf and Boutros Khalil, Director of Operations, testified on behalf of the employer. The ALJ‟s findings of historical fact are reproduced verbatim in the paragraphs that follow:
Claimant worked for Employer as an Assistant Restaurant Manager from August 2009, to October 11, 2010. Claimant was responsible for the overall management of the Cosi location at Dulles International Airport. Claimant made sure the restaurant was operated in accordance with COSI standards. Claimant was supervised by Ann Dunn, General Manager. Claimant supervised seven other employees. Claimant was also responsible for opening the restaurant to customers at 6:00 a.m. It was necessary for Claimant to arrive at the restaurant no later than 5:00 a.m.
Prior to May 2010, the restaurant opened at 6:30 a.m., but Employer requested, and was granted approval by the Airport Authority, to open thirty minutes earlier to capture additional revenue during the breakfast rush. Employer determined that between 6:15 a.m. and 6:45 a.m. they [sic] could generate revenue in the amount of $600-$800 a day. Employer, under its lease agreement, was required to open its restaurant every day during the designated hours. In the event that the restaurant was not opened during the designated hours of operation, Employer could be penalized $100 a day by the airport authority or lose its lease.
Employer has an attendance policy in its Employee Handbook that established that Failure to report to work for a scheduled shift is an unexcused absence.
Not having a ride, not having a clean uniform, oversleeping, failure to read the schedule correctly, etc. are not excused absences. "Calling in sick" does not automatically excuse your absence. You must really be sick. It is the managers [sic] prerogative to require a doctor‟s note to excuse the absence. Employees who call in sick frequently will be required to bring a doctor‟s note.
Employees out for 3 days or more will be required to have a doctor‟s release to return to work.
If you need to be off unexpectedly -- for any reason -- it is your responsibility to find someone to cover for you.
Employee will be terminated on the third unexcused absence.
Claimant was provided with a copy of the employee handbook during orientation.
On June 11, 2010, Claimant called in sick and indicated that she had a neck sprain and a migraine. Claimant did not provide a doctor‟s note. Id. Claimant called in four hours in advance of her scheduled work.
On July 10, 2010, Claimant called in and indicated that she would be absent because her teenage daughter had gone into labor.
On July 20, 2010, Claimant left her shift early because her brother was rushed to the hospital with heart problems. She left to be with her brother.
On July 21-23, 2010, Claimant called in to report that she would be absent because her brother was undergoing surgery and all the rest of her family members were gathered at the hospital.
On August 7, 2010, Claimant called in absent due to a personal matter.
On August 30-31, Claimant called in absent due to illness.
On September 22, 2010, Claimant‟s supervisor, Ann Dunn, presented Claimant with a Development Plan. The purpose of the plan was to identify areas where Claimant needed improvement. The first area identified for improvement was attendance. The comment (under attendance) stated:
Within 1 year, you have called off 12 times. As a salaried manager you are required to work 50 hours each week. As a leader in this organization you must set the example and report to work on time for every shift you are scheduled. When you are absent it places a huge strain on the operation. Our expectation is that you are the leading and exemplary example however, you cannot enforce the company policy if you are not also compliant.
Claimant signed the Development Plan.
On October 7-8, 2010, Claimant called out absent due to a personal issue, i.e., contractors working in her apartment unit and building.
On October 11, 2010, Claimant was scheduled to work and open the restaurant. Claimant is one of five individuals with security access and a security key to open the store. Claimant did not arrive at the restaurant at 5:00 a.m. None of the other individuals with access were scheduled to be at the restaurant on October 11, 2010. Four other employees showed up to work their shifts that day but were unable to gain access to the restaurant.
Shortly after 8:00 a.m., Ann Dunn, General Manager, called Boutros Khalil, Director of Operations, and informed him that the Cosi Dulles restaurant was not open. Claimant arrived for work at 8:20 a.m. and opened the restaurant. As a result of Claimant‟s late arrival, Employer was responsible for paying the four other employees for their time on October 11, 2010. Employer lost revenue in the approximate amount of $600-$800.
On October 11, 2010, Employer terminated Claimant‟s employment for excessive absences and tardiness in violation of the attendance policy.
B. Ms. Hamilton's account
Ms. Hamilton‟s version of the events that led to her discharge is effectively capsulized as follows in her counsel‟s brief to this court:
As explained below, from June through September 2010, Ms. Hamilton was unable to go to work on several occasions as a result of her own health conditions, and those of immediate relatives. Ms. Hamilton provided her employer documentation from health care providers to support the stated reasons for her absences whenever possible. Moreover, Ms. Hamilton always called to let her employer know that she would be unable to work, and ensured that her shifts were covered by another employee. Until September 22, 2010, Hojeij did not express any concern about these absences.
With respect to the specific incidents summarized in the ALJ‟s findings, Ms. Hamilton provided ...