Gunty v. Dept. of Employment Services

• Decision Date: 27 April 1987
• Docket Number: No. 86-653.,86-653.
• Parties: Melvin A. GUNTY, Petitioner, v. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

524 A.2d 1192

Melvin A. GUNTY, Petitioner, v. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 86-653.

District of Columbia Court of Appeals.

Argued February 12, 1987.

Decided April 27, 1987.

James K. Kearney, Washington, D.C., for petitioner.

Michael A. Milwee, Washington, D.C., for respondent.

Before PRYOR, Chief Judge, and FERREN and TERRY, Associate Judges.

FERREN, Associate Judge:

Petitioner, Melvin A. Gunty, seeks review of a Department of Employment Services (DOES) order denying his claim for unemployment benefits. Because the Director improperly rejected the hearing examiner's factual findings, we must reverse and remand for further proceedings.

I.

Between 1980 and 1985, Gunty had a permanent, part-time position as an accounting assistant at the Police Executive Research Forum. His responsibilities included preparing monthly summary sheets for the payroll, making bank deposits, maintaining various fiscal records, and performing miscellaneous other tasks. A deputy claims examiner initially determined that Gunty was eligible for unemployment benefits because he had "resigned under imminent threat of termination"; in effect, he had been fired. The employer appealed, 7 DCMR § 306.1 (1986), claiming that Gunty had voluntarily quit without good cause connected with the work, 7 DCMR § 311.1 (1986).

At the hearing on August 27, 1985, Gunty testified that since the beginning of 1985 his supervisor, Lester Taylor, had "taken every opportunity he can to harass me." For example, Gunty claimed that Taylor would demand that he provide a written accounting of his work by a certain time. When Gunty supplied such a report, it would lie on Taylor's desk unreviewed for several days. According to Gunty, this occurred almost every month. Gunty also testified that whenever Taylor became frustrated about something he would require Gunty to write a summary of what he had done the previous week. Taylor would look at these reports but make no comment. Gunty said that he felt insulted because he had worked for the employer for a number of years and, before 1985, had not been subjected to similar requirements. Gunty further testified that he had complained about this treatment on several occasions to the employer's management committee. Gunty added that he had informed his supervisor he would not answer such questions in the future because he considered them degrading.

Matters came to a head on July 10, 1985 when, according to Gunty, Taylor once again told him to write down what work he had done the previous week. Gunty responded that he had already told Taylor he would not answer such questions. At this point, according to Gunty, Taylor began to shout at him. Taylor said that he was the controller and that if Gunty did not like it he could leave. Believing he had been fired, Gunty went to the office of the Assistant to the Executive Director and recounted what had happened. Taylor accompanied him and denied the firing. Gunty was instructed to go home and "cool off" until the following Monday. Gunty returned to work for one week but, on July 18, submitted a note stating he would return on July 26 to pick up his final check.

According to Gunty, he had subsequent discussions with the management committee about a possible return to work. Gunty testified that one of the committee members agreed that it was degrading, and thus inappropriate, for Gunty to have to write down what he had done the previous week. Although management, according to Gunty, apparently was willing to have him return to work, Taylor's objections, he believed, prevented his doing so. On July 22, Gunty was informed that he could not return to work. Gunty also testified that he had suffered health problems, including depression, as a result of Taylor's harassment, but he admitted he had not provided his employer with doctor's certificates substantiating these claims. See 7 DCMR § 311.7(e) (1986) (illness or disability caused or aggravated by work constitutes good cause to leave, provided claimant "has previously supplied the employer with a medical statement").

Gunty called one other witness, a co-worker, Elizabeth Camelo, to corroborate his account of the argument with Taylor on July 10. Camelo, however, testified that she had not been able to hear precisely what had occurred after Gunty and Taylor had entered Taylor's office. She had heard the word "leave" but could not place it in a more precise context. Gunty also submitted the statement of another co-worker, William Spelman. This statement indicated that on July 12 Camelo had come into Spelman's office and told him that, two days earlier, Gunty and Taylor had had an argument in which she had heard Taylor tell Gunty: "If you don't like it . . . you can leave."

In contrast with Gunty's story, his supervisor, Taylor, testified that over the course of 1985 Gunty's attitude and work performance had significantly deteriorated. Taylor cited specific problems, including Gunty's taking more annual leave than he was allowed, his failure to send out bills promptly, and his failure to make important bank deposits. Taylor also testified that he had done his utmost to deal with these problems in an informal manner without jeopardizing Gunty's job; he had restricted discipline to oral reprimands. As to the July 10 incident, Taylor said Gunty was the one who had acted in a hostile manner. July 10 was Taylor's first day back at work after a two week vacation. He characterized his request as "simply asking [Gunty] for a progress report." When Gunty became hostile, the two of them entered Taylor's office for further discussions. According to Taylor, he explained to Gunty why he needed a progress report, given his own responsibility for ensuring that work was done. He added that Gunty walked out of Taylor's office after Taylor had repeated his request for an update on Gunty's work. Taylor also stated that he was willing to try to work things out but that Gunty did not want to cooperate. He denied firing Gunty. On July 17, however, Taylor did write a detailed memorandum describing Gunty's alleged "dereliction in his duties" the day before, when Gunty failed to make a bank deposit despite a specific request to do so.

The employer also called Gunty's replacement, Rodney Byrd, to testify. Byrd stated that he had found numerous errors in how the accounts had been kept. The employer also presented evidence that Taylor did not have the authority to fire Gunty and that an employee could not be fired without following certain procedures, which had not been initiated as to Gunty.

In his order the appeals examiner, in contrast with the claims examiner, concluded that Gunty had left his job voluntarily "rather than being subjected to constant harassment from employer's controller." But, like the claims examiner, he awarded Gunty benefits; the appeals examiner ruled that such harassment constituted good cause for leaving the job within the meaning of the Unemployment Compensation Act. Although the appeals examiner summarized the testimony of all the witnesses, it is readily apparent that he substantially credited Gunty's version of the events:

In the instant case, claimant testified that he attempted to resolve his situation by trying to talk with his supervisor about his concerns. However, the situation did not change. Claimant testified that he made several complaints to the executive committee about his controller's treatment towards him. However, the committee failed to correct the situation. Claimant nevertheless, endured his employer's controller's harassment and other conduct for approximately six (6) months, hoping that the situation would improve. When it did not, claimant quit his position. This is what a reasonable and prudent person in the labor market would have done.

The employer appealed again, this time to the Director of the Office of Appeals and Review. 7 DCMR § 309.1 (1986). The Director issued an order reversing the appeals examiner's decision and disqualifying Gunty from receiving unemployment benefits. In relevant part the order stated: In the instant case, the employer has presented evidence sufficient to support a finding that the claimant's leaving his last work was voluntary. The claimant, however, has failed to present evidence sufficient to support a finding of good cause connected with the work for the claimant's voluntary leaving.

The claimant's allegations of harassment by the employer's controller are not supported or corroborated by any reliable evidence or testimony on record. . . .

The claimant has failed to establish good cause connected with the work for his voluntarily leaving his last work. It must be concluded the claimant left his last work because of general dissatisfaction with the work.

Petitioner filed a timely notice of appeal. D.C.Code § 46-113 (1981); 7 DCMR §§ 310.1, 310.2 (1986).

II.

Gunty advances two arguments on appeal; only one merits discussion.¹ Although presented as part of an argument that the Director's ruling is "not supported by substantial evidence in the record," the gravamen of petitioner's complaint is that the Director, in concluding that Gunty did not leave his job for good cause connected with the work, impermissibly refused to credit the appeals examiner's factual findings. Specifically, Gunty argues that the Director "abused [her] discretion by refusing to consider Mr. Gunty's testimony concerning harassment . . . [and] by substituting [her] own judgment of the reliability of Mr. Gunty's testimony for that of the Appeals Examiner." Fundamentally, therefore, Gunty asserts that the Director is limited to a substantial evidence review premised on deference to the appeals examiner's factual findings.

DOES has two responses. First, DOES argues that the Director did not reject the appeals examiner's factual findings; rather, the Director determined, as a matter of law, that Gunty's allegations do not reflect harassment sufficient for good cause to...