Hawkins v. District Unemployment Comp. Bd.

• Decision Date: 23 December 1977
• Docket Number: No. 12178.,12178.
• Citation: 381 A.2d 619
• Parties: Earl HAWKINS, Petitioner, v. DISTRICT UNEMPLOYMENT COM-PENSATION BOARD, Respondent.
• Court: D.C. Court of Appeals

381 A.2d 619

Earl HAWKINS, Petitioner, v. DISTRICT UNEMPLOYMENT COM-PENSATION BOARD, Respondent.

No. 12178.

District of Columbia Court of Appeals.

Submitted October 26, 1977.

Decided December 23, 1977.

Christopher N. Giuliana, Silver Spring, Md., for petitioner.

E. S. Vass, Jr., Richmond, Va., for respondent.

Before KELLY and KERN, Associate Judges, and PAIR, Associate Judge, Retired.

PER CURIAM:

Petitioner challenges a decision of the District Unemployment Compensation Board (the Board) which disqualified him from unemployment compensation benefits for eight weeks and reduced his total benefit amount by $1184.00 because he was found to have been discharged by his last employer for misconduct,¹ to wit, failure personally to notify the employer by telephone prior to certain absences from work. On appeal, petitioner contends that the Board's decision should be reversed because there was not substantial evidence to support a finding of misconduct. After a review of the entire record, we agree.

The evidence before the Board may be summarized as follows. Petitioner was last employed as a laborer for a construction firm, working on the 3:30 p.m. to 12:30 a.m. shift at an underground portion of the Metro subway project. Immediately after his dismissal from the job on February 1, 1977, he filed a claim for unemployment benefits. His claim was initially denied by the Board's claims deputy on the basis of two items of information: (a) a Board form 170 in which the employer stated that Hawkins was "discharged for cause — missing shifts"; and (b) a Claims Record Card, resulting from a telephone conversation between the claims deputy and a representative of the employer, which states:

Claimant missed days without calling in. They are as follows: 12-8-76; 1-5-77; 1-7-77; 1-20-77; and 1-28-77. He did not call in on any of those times in January. As these people worked on crews, getting the [job] done depended on the whole crew being there.

Petitioner appealed this denial of benefits to the Board and was sent a Notice of Hearing form which said, in pertinent part:

All interested parties must appear in person and present their evidence and arguments at the hearing. . . . Failure of the Appellant or of an interested party to appear may result in dismissal of the appeal or other unfavorable Decision. [Emphasis added.]

The reverse side of the Notice of Hearing form stated:

For all Parties

Your attention is called to that part of Title 18, D.C. Rules and Regulations, Section 301.2, which provides as follows:

Discharge for Misconduct

(a) in such cases the burden of proof shall be upon the party alleging such misconduct and the same must affirmatively appear from the facts, in the absence of which, a claimant will not be required to offer any testimony thereon and no misconduct will be presumed. In determining whether misconduct exists the Board will take into consideration all such facts, conditions, and circumstances as are relevant to the particular case. [Emphasis added.]

At the appointed time, petitioner appeared pro se before the appeals examiner. His former employer failed to appear at this hearing, and the examiner in his findings of fact concluded that "[t]he employer failed to show good cause for not appearing." The examiner then convened the hearing and questioned claimant about the events leading to his dismissal. Claimant admitted that he had missed five days of work following an illness when the weather was exceptionally cold and that he had not telephoned his employer. In testimony which the examiner credited, claimant testified, however, that "a friend advised his supervisor of his inability to work on the occasions he was absent." Nevertheless, the appeals examiner concluded that claimant's failure personally to telephone the employer prior to the specified absences from work failed to comply with the employer's rules concerning notification of absences and was misconduct which "indicate[s] a wanton and wilful disregard of the employer's rules or policies." The examiner concluded that:

The claimant's contention that a friend informed his supervisor of his inability or intent not to work as scheduled is insufficient to comply with the employer's notification requirement. The claimant alone is responsible for complying with the rules governing his employment. The claimant lacks the authority to delegate that responsibility to a third party.

Subsequently, the Board affirmed the findings and conclusions of its appeals examiner.

In unemployment cases the burden of proving a claimant's misconduct is on the employer. D.C.Code 1973, § 1-1509(b) (D.C. Administrative Procedure Act); 18 D.C.R.R. § 301.2(a); Green v. District Unemployment Compensation Board, D.C.App., 346 A.2d 252, 255 (1975), citing Simmons v. District Unemployment Compensation Board, D.C.App., 292 A.2d 797, 800 (1972). Not every act for which an employee may be dismissed from work will provide a basis for disqualification from unemployment compensation benefits because of misconduct. Such disqualifying misconduct must meet a higher standard, for it

must be an act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. 48 Am.Jur. Social Security, Unemployment Insurance, Etc. § 38 (1943). . . .

The types of conduct . . . for which the misconduct penalty may be imposed, impute knowledge to the employee that should he proceed he will damage some legitimate interest of the employer for which he could be discharged. [Hickenbottom v. District of Columbia Unemployment Compensation Board, D.C.App., 273 A.2d 475, 477-78 (1971).]

In addition for an employment rule to be the basis for a disqualification from benefits because of misconduct, the existence of the rule must be made known to the employees, Green v. District Unemployment Compensation Board, supra at 255 and it must be consistently enforced. Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 441-44, 336 A.2d 867, 868-69 (1975).

In the instant case there was no testimony which established a specifically required procedure that was to be followed to notify the employer when an employee was unable to report to work. The appeals examiner found that absent employees were required personally to telephone the job site, yet the record does not prove the existence of a rule requiring the employee to telephone, rather than to provide notice in some other way. Indeed, the record demonstrates if anything, the absence of any specific rule on form of notice. Hawkins testified that one employee had missed almost three weeks of work without giving notice in any form, and the company had raised no objection. Thus, the reviewable record here reveals, at best, ambiguity concerning the existence of a notification rule and inconsistency of enforcement. Moreover, there was no evidence to establish the fact that the employer did not receive the message from Hawkins' fellow employee and...