Colton v. Dist. of Col. Dept. of Emp. Serv., 83-1286.

• Decision Date: 20 November 1984
• Docket Number: No. 83-1286.,83-1286.
• Citation: 484 A.2d 550
• Parties: Margaret R. COLTON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

484 A.2d 550

Margaret R. COLTON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 83-1286.

District of Columbia Court of Appeals.

Submitted October 11, 1984.

Decided November 20, 1984.

Margaret R. Colton, pro se.

N. Denise Wilson-Taylor, Washington, D.C., was on brief for respondent. Grace Lockett Rosner, Washington, D.C., entered an appearance for respondent.

Before MACK and TERRY, Associate Judges, and YEAGLEY, Associate Judge, Retired.

TERRY, Associate Judge:

Petitioner seeks review of a decision of the Department of Employment Services ruling her ineligible for unemployment compensation for eight weeks on the ground that she was discharged for misconduct. She contends that the Department's appeals examiner failed to make findings of fact on the only contested issue presented: whether she was authorized to do the act for which she was discharged. We agree with petitioner and remand the case for findings on that issue.

Under the District of Columbia Administrative Procedure Act, the appeals examiner's decision must contain findings of fact, "consist[ing] of a concise statement of the conclusions upon each contested issue of fact," and conclusions of law. Both findings and conclusions must be "supported by and in accordance with the reliable, probative, and substantial evidence." D.C. Code § 1-1509(e) (1981); see also 18 DCRR § 4609.2-4609.3 (1982). "This court has refashioned these requirements into a three-part test for administrative decisions in contested cases: (1) the decision must state findings of fact on each material, contested factual issue; (2) those findings must be based on substantial evidence; and (3) the conclusions of law must follow rationally from the findings." Perkins v. District of Columbia Department of Employment Services, 482 A.2d 401 at 402 (D.C. 1984) (citations omitted). If the agency fails to make a finding on a material, contested issue of fact, this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue. Lee v. District of Columbia Zoning Commission, 411 A.2d 635, 639 (D.C. 1980).

In October 1981 petitioner went to work for Thomas House, a residence for the elderly, as its director of nursing. Two months later the administrator of Thomas House, Gilbert Smith, prepared a written evaluation of petitioner's work. He described her overall performance as "outstanding," the highest possible rating.

Shortly thereafter Mr. Smith was succeeded by John Hicks as administrator. The following summer, when Mr. Hicks began to prepare the budget for the next fiscal year, he determined that Thomas House was spending too much money on overtime for its employees. He therefore held a series of staff meetings in June and July in which he announced that no overtime could be authorized without his prior approval. The meetings were followed by a memorandum on October 8 from Mr. Hicks to all staff heads, including petitioner, reiterating the new overtime rule.

In December Mr. Hicks discovered that on four time sheets completed by petitioner, all for pay periods after October 8, she had authorized more than 100 "administrative hours" for members of her staff. Puzzled by what he had found, Mr. Hicks asked Linda Rose, a payroll employee, to find out from petitioner what "administrative hours" were. Petitioner told Rose that she used the term as a means of authorizing overtime without obtaining prior approval, thereby circumventing the rule laid down by Mr. Hicks. When Hicks learned of this, he fired petitioner for violation of the overtime policy.¹

At the hearing before the appeals examiner, petitioner testified that in March 1982 she and Mr. Hicks developed a program for nursing aides under which the aides would be given "administrative hours" for all time worked in excess of forty hours per week. She said that she "was directed at that time by Mr. Hicks that the ongoing program would be treated and carried as two full-time jobs and the above 40 hours a week was to be put in the administrative leave category." According to petitioner's testimony, Mr. Hicks never instructed her to discontinue paying the aides in this manner. Although Mr. Hicks was present at the hearing and in fact cross-examined petitioner, he did not dispute her allegations.

The appeals examiner found that the violation of the overtime policy was the principal reason for petitioner's discharge. On the basis of that violation, he found that petitioner's actions constituted "misconduct," which disqualified her from receiving unemployment benefits. D.C. Code § 46-111 (b) (1981). The examiner made no finding, however, with regard to petitioner's uncontroverted testimony that she authorized the administrative hours for her staff with Mr. Hicks' approval, in accordance with a program developed in March 1982. This omission was critical because, if petitioner's testimony were found to be true, it would preclude a finding of...