Green v. District Unemployment Compensation Bd., 9425.

• Decision Date: 21 October 1975
• Docket Number: No. 9425.,9425.
• Citation: 346 A.2d 252
• Parties: Cynthia M. GREEN, Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.
• Court: D.C. Court of Appeals

346 A.2d 252

Cynthia M. GREEN, Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.

No. 9425.

District of Columbia Court of Appeals.

Submitted August 21, 1975.

Decided October 21, 1975.

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John P. Sizemore, Washington, D.C., was on the brief for petitioner.

George A. Ross, Bill L. Smith, Robert J. Hallock and John L. Davis, Washington, D.C., were on the brief for respondent.

Before FICKLING, GALLAGHER and YEAGLEY, Associate Judges.

GALLAGHER, Associate Judge:

This is an appeal pursuant to D.C.Code 1973, § 46-312 (Supp. II, 1975) from an order of the District of Columbia Unemployment Compensation Board (hereinafter called the Board) denying unemployment compensation benefits due to petitioner's "misconduct"¹ in her most recent employment.

There are two issues here on appeal: (1) whether sufficient evidence exists in the record to support the finding of the Board and (2) whether the Board is legally empowered to base a misconduct disqualification pursuant to D.C.Code 1973, § 46-310(b) on conduct other than that alleged by the employer as his basis for the discharge. After a review of the record and the authorities cited, we hold that the disqualifying "misconduct" charged before the District Unemployment Compensation Board was not supported by substantial evidence.² Additionally, we hold that the Board erroneously based its finding of "misconduct" pursuant to D.C.Code 1973, § 46-310(b) on conduct substantially different from that which caused the initial discharge.

Petitioner Cynthia Green worked as a personal secretary to Mr. Enrique Lopez, Jr., at the Federal National Mortgage Association (F.N.M.A.) from August 21, 1972 until November 8, 1974, when she was discharged. Mr. Lopez testified that this discharge resulted from the belief that petitioner had falsified overtime records. This allegation of falsification arose from a security investigation authorized by the F.N. M.A. to determine the cause in the discrepancy between overtime hours recorded and hours logged in the security register. Ms. Green's testimony was that the discrepancy that existed as to her approved overtime hours and the hours logged for her in the security register resulted from overtime work she had done at home. Mr. Lopez stated that she was an "exceptional" secretary and that he placed heavy reliance on her in evaluating the office's daily need for overtime so much so that "Ms Green could put her name in the request for overtime and I would sign it without question." As to the discrepancy issue, he testified that he believed petitioner actually did the claimed overtime work although he was not then aware that she was taking overtime work home.

On these facts, the Appeals Examiner concluded that petitioner had been discharged for misconduct, stating that "[W]hile the Examiner has no reason to believe that the claimant did not perform the work at home that she said she performed this does not alter the fact that she acted unreasonably and outside the scope of normal business procedures . . . when she followed this home work procedure without telling her supervisor where she was doing the work." In affirming the Appeals Examiner, the Board held that "[T]he evidence in this appeal clearly shows that the claimant deliberately or unduly failed to follow a well-known employer policy involving overtime work." It was on this basis and not that petitioner had falsified the records that the Board found "misconduct" sufficient to warrant disqualification of benefits under D.C.Code 1973, § 46-310(b). This appeal followed.

As to the first issue, it is helpful to state initially that the scope of our review here . . . is limited to questions of law and . . . to a determination of whether or not the findings of the compensation authorities are supported by competent evidence.³ The burden of proving petitioner's misconduct in unemployment compensation cases is on the employer. Simmons v. District Unemployment Compensation Bd., D.C.App., 292 A.2d 797, 800 (1972). That burden has not been met here. The Board, in its decision, found petitioner's "misconduct," which disqualified her from unemployment benefits for five weeks, ensued from her failure to follow "a well-known employer policy involving overtime work."⁴ Significantly, however, Mr. Barker, who was an employer witness, suggested in his testimony that a procedure requiring such overtime permission was not initiated until after the decision to terminate petitioner's employment had been reached.⁵ At the very least for an employment policy to be contravened, its existence must be made known to the employees beforehand. We are thus unable to find substantial evidence either to support the

Board's finding regarding the existence at the time in question of a policy against doing overtime work at home at all or a policy requiring prior approval of such work by one's supervisor.⁶

[10, 11] Secondly, petitioner contends that the Board erred in finding the ground for disqualifying misconduct on a rationale other than the basis for the discharge used by the employer. We agree and find the Board's action erroneous as a matter of law. The District of Columbia Code 1973, § 46-310(b) provides in relevant part that "[a]n individual who has been discharged for misconduct occurring in the course of his most recent work proved to the satisfaction of the Board shall not be eligible for benefits . . ." (Emphasis added.) Petitioner was discharged on the basis that she had falsified overtime records according herself more hours than she actually worked. The Board, however, based its finding of "misconduct" on grounds that petitioner violated "a well-known employer policy involving overtime work." We hold that a finding of misconduct by the Board pursuant to D.C.Code 1973, § 46-310(b) must be based fundamentally on the reasons specified by the employer for the discharge.⁷ Hawkins v. Leach, 115 Ohio App. 259, 185 N.E.2d 36 (Ohio App. 1961). There Mr. Hawkins was discharged by the employer for "allegedly reporting for work under the influence of alcohol." The referee held that "there was a failure of proof that Hawkins was under the influence of alcohol." The Board nevertheless denied claimant unemployment benefits apparently on the theory that the employee left work without authorization and was therefore guilty of misconduct. The Ohio Court of Appeals reversed the Board holding:

Both appellees (the Board and the employer) have suggested that the board of review was entitled to reject the reason given by the employer as the basis of discharge and make an independent determination. The contention appears to be that even if there is insufficient evidence to prove that appellant was under the influence, still there are other grounds of record which would justify discharge for cause . . . We think . . . the ultimate fact to be determined from the evidence is the reason or reasons the employer did in fact discharge the employee. If that reason constitutes just cause, compensation is to be denied. The existence of grounds upon which the employee might have been discharged is immaterial if they were not in fact the grounds of discharge. (Emphasis added.) Id. at 44.

Here, the employer representative stated to the Board that he would not have discharged petitioner for any reason other than falsifying records.⁸ Accordingly, the Board should not now make an independent judgment that other...