Jones v. District of Columbia Unemployment Compensation Board, 13145.

• Decision Date: 20 November 1978
• Docket Number: No. 13145.,13145.
• Citation: 395 A.2d 392
• Parties: Herbert R. JONES, Petitioner, v. DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION BOARD, Respondent.
• Court: D.C. Court of Appeals

395 A.2d 392

Herbert R. JONES, Petitioner, v. DISTRICT OF COLUMBIA UNEMPLOYMENT COMPENSATION BOARD, Respondent.

No. 13145.

District of Columbia Court of Appeals.

Argued October 5, 1978.

Decided November 20, 1978.

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Dalton Howard, with whom Wanda D. Foster, Washington, D. C., was on the brief, for petitioner.

D. Kevin Dugan, with whom Russell L. Carter, Bill L. Smith, and Norma Denise Wilson, Washington, D. C., were on the brief, for respondent.

Before GALLAGHER and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.

FERREN, Associate Judge:

The petitioner, Herbert R. Jones, seeks review of a Final Decision of the District Unemployment Compensation Board (the Board) disqualifying him from receiving unemployment benefits for eight weeks on the ground that he had been discharged for "misconduct," within the meaning of the District of Columbia Unemployment Compensation Act. D.C.Code 1973, § 46-310(b).¹ Petitioner asserts that (1) his actions in leaving work early, after a warning that this would constitute abandonment of his job, did not amount to misconduct within the meaning of the statute, and that (2) the appeals examiner's failure to grant a continuance to obtain the presence of subpoenaed witnesses, his refusal to permit examination of petitioner's personnel file, and his decision not to sequester the witnesses deprived petitioner of his statutory right to a fair hearing, as well as his constitutional right to due process. Because the evidence does not support an essential, threshold finding that the employer discharged petitioner for abandoning his job, we reverse and remand for further proceedings.

I.

On May 11, 1977, the petitioner, a trashman employed by the Greater Southeast Community Hospital, entered the office of Fred Williams, his supervisor, told Williams that he was putting too much pressure on petitioner, and signed off the job four hours before the end of his shift. Mr. Williams informed petitioner that if he signed out, he would be abandoning his job. According to Mr. Williams and a witness to the incident, petitioner responded that "he would cut [Mr. Williams'] throat" if he stayed. Petitioner then left. The next day, the hospital discharged petitioner for abandoning his job and threatening his supervisor.

At the hearing to determine petitioner's right to receive unemployment compensation, the appeals examiner found the petitioner had abandoned his job after being warned by his supervisor that he did not have permission to leave. The examiner determined that petitioner's behavior "exhibited a wilful disregard of the employer's legitimate business interest and constitute[d] a breach of reasonable standards of behavior an employer has the right to expect from its employees." He concluded that petitioner had been discharged for acts constituting "misconduct" within the meaning of the statute. The examiner made no findings concerning petitioner's alleged threat to his supervisor, explaining that the record was sufficient to sustain a finding of misconduct even if petitioner had not threatened Mr. Williams.

The Board affirmed the appeals examiner's decision, concluding that it was supported by the evidence and that no prejudicial error had occurred.

II.

Initially, we must determine whether the Board was correct in concluding that the employer carried its burden of proving that petitioner's action in leaving work four hours early, in the face of a supervisor's warning that he would be abandoning his job if he left, constituted "misconduct" within the meaning of § 46-310(b). See Hawkins v. District of Columbia Unemployment Compensation Board, D.C.App., 381 A.2d 619, 622 (1977) (per curiam).

We have held that an employee discharged for misconduct, based on the employer's concept of that term, is not necessarily guilty of "misconduct" under the statute. See Williams v. District Unemployment Compensation Board, D.C.App., 383 A.2d 345, 349 (1978); Hickenbottom v. District of Columbia Unemployment Compensation Board, D.C.App., 273 A.2d 475, 478 (1971). In order to disqualify a claimant from benefits, the Board must find that the basis for his discharge was reasonable when considered with reference to the purpose of the Unemployment Compensation Act, namely to protect employees against economic dependency caused by temporary unemployment and to reduce the necessity of other welfare programs. See Williams, supra at 349; Hickenbottom, supra at 478; Von Stauffenberg v. District Unemployment Compensation Board, D.C.App., 269 A.2d 110, 111 (1970), aff'd per curiam, 148 U.SApp.D.C. 104, 459 F.2d 1128 (1972). Consistent with this purpose, the misconduct provision is intended to prevent the dissipation of funds by denying benefits to those who are unemployed through their own disqualifying act rather than the unavailability of suitable job opportunities. See Hickenbottom, supra at 477. This court accordingly has determined that an employee should be disqualified from benefits if — but only if — his misconduct is

[1] an act of wanton or wilful disregard of the employer's interest, [2] a deliberate violation of the employer's rules, [3] a disregard of standards of behavior which the employer has the right to expect of his employee, or [4] 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. [Id. at 477-78 (citation omitted).]

There are, moreover, two other prerequisites to denial of benefits. First, the employee must be on notice that if he should proceed with his conduct, "he will damage some legitimate interest of the employer for which he could be discharged." See Williams, supra at 349; Hickenbottom, supra at 478. Second, "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." Green v. District Unemployment Compensation Board, D.C. App., 346 A.2d 252, 256 (1975). The Board cannot reject the employer's rationale and yet deny benefits on another misconduct theory independent of the employer's own determination.

This case is complicated by the fact that according to petitioner's supervisor (Mr. Williams), the employer discharged petitioner for two reasons — his alleged threat to Williams and abandonment of the job. Because several of petitioner's subpoenaed witnesses on the threat issue did not appear, the appeals examiner decided the case solely on the ground that job abandonment was misconduct enough to justify the discharge. This conclusion, however, presupposes that the employer would have discharged petitioner for job abandonment alone — and in effect did; i. e., that the two reasons for discharge were alternative, not compounded, grounds. The critical inquiry, therefore, is whether the record supports the conclusions that (1) petitioner was on notice that he could be discharged for abandoning his job, see Williams, supra at 349; Hickenbottom, supra at 478, and that (2) in fact the claimant was discharged for abandoning his job. See Green, supra at 256-57.

As to the first, "notice" issue, the employer issued an employee handbook containing policies and procedures on "Discharge After Completion of Probationary Period."² Pursuant to § 2.b. of the handbook, discharge without warning is permitted, with one or two weeks' severance pay, "[i]f [an employee's] department head feels immediate discharge would be in the best interest of the Hospital." See note 2 supra. Section 2.c. authorizes discharge without warning and without pay in situations in which "the presence of an employee jeopardizes the welfare of the patients, property or other employees"; e. g., when an employee commits an "assault on Hospital property." See note 2 supra. It appears, therefore, that discharge for job abandonment is at least consistent with § 2.b., if not § 2.c.³

The record also shows that petitioner, in leaving work four hours early, defied his supervisor's warning that such an action would constitute abandonment of his job. Petitioner, in fact, concedes this. Coupled with the employee's handbook, the supervisor's warning was sufficient notice to petitioner that leaving the job without permission could constitute misconduct justifying discharge. See Williams, supra at 349-50. In these circumstances, petitioner should have recognized that his leaving was in derogation of his employer's legitimate business interest, constituting a breach of the standards of behavior that his employer had a right to expect. See Hickenbottom, supra at 477-78. The petitioner's conduct accordingly could be sufficient to justify his temporary disqualification from unemployment compensation benefits. See Colvin v. District Unemployment Compensation Board, D.C.App., 306 A.2d 662, 664 (1973) (petitioner's action in cutting short his workdays to attend to personal affairs without permission and despite warnings reveals a breach of petitioner's contractual duty to devote his entire time, attention, and energies to his employment and establishes misconduct as a matter of law); Williamson Co. v. Review Board of Indiana Employment Security Division, 145 Ind. App. 266, 250 N.E.2d 612, 618 (1969) (petitioner's action in leaving work after being warned not to do so was sufficient to justify suspension of unemployment benefits); Palko v. Delson Candy Co., 29 A.D.2d 600, 600, 285 N.Y.S.2d 345, 346 (1967) (per curiam) (same); Cade v. Unemployment Compensation Board of Review, 191 Pa.Super.C. 3, 5, 155 A.2d 459, 460 (1959) (same).

Having determined that petitioner had sufficient notice to justify his discharge and consequent disqualification from unemployment compensation benefits, we must next consider whether the employer in fact discharged petitioner for job abandonment. See Green, supra. If the employer cannot be said to...