On Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (DOES-1547-10)
The opinion of the court was delivered by: Glickman, Associate Judge
Submitted December 16, 2011
Before GLICKMAN and OBERLY, Associate Judges, and REID, Senior Judge.
Petitioner Denise Scott worked as a care giver at a residential facility for disabled adults operated by respondent Behavioral Research Associates, Inc. ("BRA"). She applied for unemployment compensation after being fired for not cooperating satisfactorily with her employer's investigation into an incident she had witnessed involving a fight between two residents. Her application was denied, initially by a claims examiner and then, on her appeal to the Office of Administrative Hearings ("OAH"), by an Administrative Law Judge ("ALJ") after an evidentiary hearing. The claims examiner and the ALJ found Scott to be disqualified from receiving unemployment benefits because she was discharged for gross misconduct.
Scott challenges that determination; she denies any misconduct, gross or otherwise. We agree with her that the finding of gross misconduct cannot be sustained on the record before us. Whether Scott's termination resulted from misconduct on her part less serious than gross misconduct is a question we cannot answer, however, as material factual issues raised by the testimony at the OAH hearing remain unresolved. A determination that Scott was discharged for less serious or "simple" misconduct still would subject her to a disqualification penalty, though a lesser one, under our unemployment compensation regime. Accordingly, we reverse the order of the OAH and remand for further findings regarding Scott's eligibility for unemployment benefits.
BRA is a nonprofit organization licensed by the District of Columbia Department of Disability Services ("DDS") to provide residential and other services for physically and mentally challenged individuals. Scott was hired by BRA in 2006 as a member of its Direct Care Staff. While working at BRA's Nannie Helen Burroughs Facility on March 20, 2010, Scott and at least one other co-worker witnessed an incident in which one resident slapped another. Scott promptly reported the altercation to a supervisor and submitted a written incident report.
As Andrea Jackson and Linda Graham, two BRA managerial employees, testified at the OAH hearing, BRA was required to investigate the March 20 incident, which it classified as client-on-client abuse, and submit a report on it to DDS's Incident Management Enforcement Unit. The investigation had to be completed within five days of the incident; Jackson and Graham referred to the source of this "five-day requirement" as either DDS policy or an unspecified "federal guideline."*fn1 DDS could terminate BRA's facility contract if BRA failed to complete a required investigation and make a timely report. BRA considered the failure of an employee to cooperate with an investigation to constitute grounds for termination of employment.
According to Jackson and Graham, BRA's protocol required employees involved in an investigation (such as Scott and any co-workers who witnessed the assault) to give both a written and an oral statement. Scott essentially complied with each of these requirements on March 20, except that her oral report was made to a supervisor prior to the start of the investigation. Thereafter, apparently as a matter of routine procedure, Scott was placed on administrative leave pending the outcome of the investigation. It does not appear that Scott was considered to have been at fault in the incident.
The events that led to Scott's termination occurred after she was put on leave. Jackson, who served as a facility coordinator and incident management investigator for BRA, testified that she phoned Scott on March 20 and scheduled her to come to the office on March 23 for an investigative interview. Scott called her on March 23, however, to say she had an emergency and could not come in that day because she had to pick up a sick child from daycare. For whatever reason, Jackson did not reschedule the interview at that time. Instead, Jackson testified, Scott was supposed to call her back to make a new appointment. In response to the ALJ's direct inquiry, Jackson confirmed that she did not set a date or make any arrangements for Scott to reschedule. Jackson testified that Scott called her back on March 28 and left a message for her. Although Jackson received this message, she did not return Scott's call or speak with her at all until a month later, on April 28, 2010, the day BRA discharged Scott for not cooperating with the investigation.
Scott's phone call on March 28 fell outside the five-day period (which ended on March 25) in which, Jackson stated, the investigation was supposed to be completed. Jackson admitted that she did not mention this deadline to Scott. When the ALJ asked Jackson whether she had informed Scott of the five-day requirement, Jackson replied:
"Everybody is informed. That's one of our policies [that is] elaborated on quite frequent[ly] in our in-service trainings."*fn2
Scott testified that she called Jackson after the March 20 incident to ask when she could return to work, and Jackson told her she needed to come in to give another statement first. Scott told Jackson she would come in that same day, but she had to call back and cancel the meeting because of her family emergency. Scott testified that she called BRA numerous times thereafter but was unable to reach Jackson or anyone else handling the investigation. She asked Pamela Botts, her immediate supervisor at BRA, to help her, but Botts was not involved in the investigation and told Scott to keep trying to get through to Jackson. Scott, who was eager to resume working, left numerous messages, but no one ever returned her calls.*fn3
Scott claimed that she did not know her interview had to be conducted within five days. Nonetheless, after finding herself unable to reschedule it with anyone at BRA, Scott visited DDS in person in order to give a statement there about the March 20 incident. Scott believed that by providing her written report on the day of the incident and a follow-up ...