Fort Myer Constr. Corp. v. Briscoe
| Docket Number | 20-AA-0480 |
| Decision Date | 03 August 2023 |
| Parties | Fort Myer Construction Corporation, Petitioner, v. Carroll D. Briscoe, Respondent. |
| Court | D.C. Court of Appeals |
Argued February 8, 2023
Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (2020-DOES-001625)
Joseph E. Schuler, with whom Diana M. Caldas was on the briefs, for petitioner.
Rebecca Steele, with whom Jonathan H. Levy, Mariah Hines, and Nicole Dooley were on the briefs, for respondent.
Before MCLEESE and DEAHL, Associate Judges, and GLICKMAN, Senior Judge.
The case involves competing challenges to a finding that respondent Carroll D. Briscoe was discharged for simple workplace misconduct partially disqualifying him from receiving unemployment-compensation benefits. His former employer petitioner Fort Myer Construction Corporation, argues that Mr. Briscoe was actually discharged for gross misconduct within the meaning of D.C. Code § 51-110(b)(1), fully disqualifying him from receiving unemployment benefits. Mr. Briscoe, meanwhile, argues that he did not commit misconduct at all, and that he is therefore entitled to receive full benefits. We disagree with each party's challenges and affirm the Office of Administrative Hearings' ruling.
Certain basic facts appear to be undisputed for current purposes. Mr. Briscoe worked for Fort Myer as a division superintendent. His responsibilities included review and approval of time sheets ("tickets") for division employees. Division employee Kendra Ginyard complained to Mr. Briscoe at one point that she had been removed from the Sunday schedule, an assignment for which Ms. Ginyard would have received double pay. Ms. Ginyard, a Black woman, complained that it was unfair that the shift at issue was instead given to a white male employee.
Mr. Briscoe contacted Paolo Spada, who was responsible for creating the work schedule for division employees, to ask why Ms. Ginyard was not scheduled to work that Sunday. The details of the discussion between Mr. Briscoe and Mr. Spada are disputed, but the outcome of the discussion was that Ms. Ginyard was given a ticket reflecting that she worked on the Sunday at issue even though she had not done so. After discovering the time-sheet discrepancy shortly thereafter, Fort Myer discharged Mr. Briscoe for misappropriation of resources. The company also discharged Ms. Ginyard, while Mr. Spada received a one-day suspension for following Mr. Briscoe's directive.
Mr. Briscoe sought unemployment-compensation benefits. A claims examiner concluded that Mr. Briscoe was qualified to receive such benefits because Fort Myer had not presented evidence showing that Mr. Briscoe had engaged in misconduct. Fort Myer appealed that decision to the Office of Administrative Hearings (OAH), arguing that Mr. Briscoe had engaged in gross misconduct.
An OAH Administrative Law Judge (ALJ) held an evidentiary hearing. At the hearing, Mr. Spada testified that Mr. Briscoe had directed him to sign the ticket for Ms. Ginyard. A Fort Myer official also testified that Mr. Briscoe had not denied directing Mr. Spada to sign the ticket.
Mr. Briscoe's testimony at the hearing included the following. Ms. Ginyard complained to him that she had been on the schedule for Sunday but had been removed and replaced by a white male. Mr. Briscoe asked Mr. Spada why he had done that, but Mr. Spada was unable to explain his decision. Mr. Briscoe was concerned that the change in schedule was impermissible and probably would require Fort Myer to pay Ms. Ginyard for the shift even though she had not worked. Mr. Briscoe did not direct Mr. Spada to give Ms. Ginyard a Sunday ticket. Rather, Mr. Briscoe told Mr. Spada that Fort Myer would probably have to pay Ms. Ginyard, but he advised Mr. Spada not to take further action until Mr. Spada talked to a "higher level" superintendent.
The ALJ concluded that Mr. Briscoe had engaged in simple misconduct and was therefore temporarily disqualified from receiving unemployment benefits. Crediting Mr. Spada's testimony, and discrediting Mr. Briscoe's testimony to the contrary, the ALJ found that Mr. Briscoe had directed Mr. Spada to sign Ms. Ginyard's ticket. Because the ALJ further found that Mr. Briscoe's conduct was against Fort Myer's interests, the ALJ concluded that Mr. Briscoe had engaged in misconduct.
The ALJ concluded, however, that Mr. Briscoe's conduct "did not demonstrate the degree of extreme culpability . . . required for gross misconduct." The ALJ relied on the following factors in reaching that conclusion: there was no evidence that Mr. Briscoe's behavior had a significant adverse impact on Fort Myer's operations; the issue was caught before Ms. Ginyard was paid for the shift at issue; the incident was isolated in nature; and Mr. Briscoe did not personally benefit from his actions.
Fort Myer sought review in this court, and this court remanded the record for the ALJ to make an explicit finding as to whether Mr. Briscoe's actions were motivated by a desire to protect Fort Myer's interests. Fort Myer Constr. Corp. v. Briscoe, No. 20-AA-480, Mem. Op. &J. at 2 (D.C. Aug. 18, 2021).
On remand, the ALJ held a further evidentiary hearing. Mr. Briscoe's testimony at that hearing included the following. Mr. Briscoe spoke with Mr. Spada about the change to Ms. Ginyard's work schedule because Ms. Ginyard was threatening to raise a discrimination complaint. Mr. Briscoe was concerned about that possibility in light of an incident from two or three months earlier in which a Fort Myer supervisor had made a racially discriminatory comment to Mr. Briscoe. Two different Fort Myer supervisors dissuaded Mr. Briscoe from filing a complaint based on that comment, because doing so would or might cause Fort Myer to shut down. Specifically, Mr. Briscoe was told that Fort Myer had just undergone a federal investigation into discrimination incidents and that filing a complaint might lead to "a padlock on the gate."
Mr. Briscoe believed that paying Ms. Ginyard for a day on which she did not work would resolve any potential discrimination complaint that Ms. Ginyard might have. Mr. Briscoe had seen supervisors who, unlike him, "ran the asphalt division," take that course of action in resolving similar complaints. For example, Mr. Briscoe described an incident in which an employee made a complaint about being removed from the work schedule, the employee threatened to raise a discrimination claim, and the supervisor who ran the asphalt division directed that the employee be paid even though the employee had not worked. Consistent with that practice, Mr. Briscoe maintained that he did not direct Mr. Spada to sign the ticket but instead told him to talk to a higher-level supervisor before doing so. Mr. Briscoe did not intend to harm Fort Myer, but rather "was trying to take care of [his Fort Myer] family."
Mr. Briscoe acknowledged that he did not take steps to verify or investigate Ms. Ginyard's complaint. He also acknowledged that he was not sure whether what happened to Ms. Ginyard was the result of discrimination or favoritism for a friend.
Hector Sealey, Fort Myer's training director, testified that Fort Myer requires all employees to take annual anti-discrimination training. Employees are instructed that there is zero tolerance for discrimination and that complaints must be reported to supervisors, to the union, and to the head of the human-resources department. The training materials explained that such reporting protects the company and permits the company to address alleged discrimination. Mr. Sealey was not aware of employees having been told not to report claims of discrimination. Mr. Sealey testified that, during Fort Myer's internal discipline process, Mr. Briscoe admitted that he had decided to pay Ms. Ginyard for hours Ms. Ginyard did not work. Mr. Briscoe did not mention the concern that Ms. Ginyard had been discriminated against. Finally, Mr. Sealey testified that written authorization was required for submitting a timecard for hours an employee did not work.
After the hearing, the ALJ issued a new ruling. The ALJ reiterated the earlier finding that Mr. Briscoe had directed Mr. Spada to sign Ms. Ginyard's ticket, again discrediting Mr. Briscoe's testimony that he instead instructed Mr. Spada to speak with another supervisor before doing so. The ALJ credited Mr. Briscoe's testimony in other respects, however, finding that (1) several months before the incident with Ms. Ginyard, a Fort Myer supervisor made a racist comment to Mr. Briscoe; (2) two different Fort Myer supervisors discouraged Mr. Briscoe from filing an external complaint about the racist comment made to him, because doing so could lead to Fort Myer being shut down; (3) Mr. Briscoe was concerned that Ms. Ginyard might file a claim of discrimination; (4) Mr. Briscoe was motivated by his belief that another complaint of discrimination could shut Fort Myer down; and (5) Mr. Briscoe had seen management correct pay issues under similar circumstances and thought he could do likewise.
Based on those findings, the ALJ reaffirmed its prior conclusion that Mr. Briscoe committed misconduct but not gross misconduct. Describing Mr. Briscoe's conduct as "attempted misappropriation of funds," the ALJ concluded that Mr. Briscoe had "violat[ed]" Fort Myer's "interest and expectation of its employees." The ALJ did not view Mr. Briscoe's conduct as gross misconduct, however, for several reasons the conduct did not have a significant adverse effect on Fort Myer's operations; no resources were misappropriated; the conduct was an isolated incident; Mr. Briscoe was motivated in part by a desire to avoid a discrimination complaint that...
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