Lynch v. Masters Sec.

• Decision Date: 25 November 2015
• Docket Number: No. 14–AA–1086.,14–AA–1086.
• Citation: 126 A.3d 1125
• Parties: Jacqueline LYNCH, Petitioner, v. MASTERS SECURITY, Respondent.
• Court: D.C. Court of Appeals

126 A.3d 1125

Jacqueline LYNCH, Petitioner,

v.MASTERS SECURITY, Respondent.

No. 14–AA–1086.

District of Columbia Court of Appeals.

Submitted Oct. 16, 2015.

Decided Nov. 25, 2015.

Drake Hagner and Jonathan Levy, Legal Aid Society of the District of Columbia, were on the brief for petitioner.

Edward R. Noonan and Jeffrey P. Brundage, Washington, DC, were on the brief for respondent.

Before GLICKMAN and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

THOMPSON, Associate Judge:

This unemployment compensation matter is before the court again after a remand order in which we directed the Office of Administrative Hearings ("OAH") to consider, on the existing record, whether respondent Masters Security (the "Employer") proved the following by a preponderance of the evidence with respect to the conduct that led the Employer to terminate petitioner Jacqueline Lynch from her job as an armed security guard:

[That] leaving her weapon in a publicly accessible place[,] ... is the kind of gross negligence that we have equated with intentionality due to the serious harm that could ensue[;] that is, whether the stated act constitutes highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

Lynch v. Masters Security, 93 A.3d 668, 677 (D.C.2014) ("Lynch I ") (internal quotation marks omitted). In an August 29, 2014, Final Order after Remand, the OAH Administrative Law Judge ("ALJ") found that the record establishes that petitioner "committed an act of gross negligence in leaving a gun in a public restroom," that she was discharged for gross misconduct, and that she therefore is disqualified from receiving unemployment benefits. Petitioner challenges that ruling, arguing that her negligent conduct, though regrettable and dangerous, as a matter of law did not amount to gross negligence or to misconduct that disqualified her for unemployment benefits.

We agree with petitioner and therefore reverse the OAH ruling. As we explain more fully below, in light of our prior case law, several factors make a conclusion of "misconduct" unwarranted here: (1) as we observed in Lynch I, petitioner "had not violated a company rule regarding the handling of her firearm," id. at 670 ; (2) the ALJ found that petitioner did not intentionally leave her firearm in the restroom; (3) the ALJ did not find that petitioner exhibited lack of concern for the safety of others (and there was evidence, credited by the ALJ, that petitioner did demonstrate such concern); (4) other security guards at the worksite had left their firearms in a public restroom (suggesting that such negligence is not extraordinary); and (5) those errant security guards were not terminated for that conduct, and there is nothing else in the record that supports an inference or a concern that petitioner did something that she had reason to know would result in her termination and (possible) qualification for unemployment benefits.

I.

As recounted in Lynch I and briefly summarized here, petitioner worked for the Employer as a front lobby guard at the headquarters building of the United States Department of Health and Human Services ("HHS") headquarters. In that capacity, she carried a firearm issued by the Employer. January 14, 2013, was petitioner's first day back at work after taking a period of leave to care for her ailing mother. Petitioner's shift began at 8:00 a.m., but she arrived at work about five minutes early, signed out her company-issued firearm, and then, shortly before reporting to her post in the front lobby, went to use a publicly accessible restroom located in a corridor behind the lobby.¹ When she entered a restroom stall, she removed her firearm from its holster, placing it on the shelf over the toilet paper dispenser in the stall. She explained at the hearing that this was her custom, and that of her female co-workers, because it was difficult for them as women to sit to use the toilet with a gun in the holster. Petitioner also explained that her practice was not to remove her entire gun belt and hang it on the door of the stall (she testified that most of the stall doors have no hooks) or place it on the floor, because either option would create an unsafe situation; as the ALJ found, petitioner was "concerned that someone could grab the gun from the outside of the stall" or that someone could reach under the stall wall to grab the belt and weapon from the floor.

On the morning in question, when petitioner exited the restroom stall, she failed to re-holster her firearm, instead leaving it on the shelf inside the stall. Minutes later, a fellow armed security guard, Irene Burton, entered the same stall, noticed the firearm, and gave it to petitioner's supervisor, Captain Timothy Nelson. Captain Nelson subsequently identified the firearm as the one petitioner had signed out, returned the weapon to her, and instructed her to return to her post. Petitioner explained to Captain Nelson that she had a lot on her mind and was distracted with worry about her ill mother.² She also explained, and the ALJ found on remand, that she was "in the habit of checking to see that she had re-holstered her weapon before she left the rest room stall, but she failed to do so on this occasion" because she was distracted. When Captain Nelson's superiors were notified of the incident, they initially instructed him to send petitioner home; later the same day, appellant was terminated for leaving her loaded weapon in a restroom.

A Department of Employment Services ("DOES") claims examiner thereafter denied petitioner's claim for unemployment benefits on the ground that she was terminated for gross misconduct. At the hearing on petitioner's appeal of that determination, Burton testified that she, too, had once left her firearm in a restroom at the HHS building but was not terminated.³ Petitioner similarly testified, without contradiction, that other security guards at the site had left their guns in restrooms but had not been terminated.⁴

In a Final Order dated March 11, 2013, the OAH ALJ ruled that petitioner could not be denied benefits based on a rule violation (there was no evidence that petitioner violated a company policy regarding firearms) but found that petitioner's act of leaving her firearm in the restroom for (what the ALJ found was) fifteen minutes constituted gross misconduct that disqualified her from receiving unemployment benefits. The ALJ also denied petitioner's motion for reconsideration, in which she argued that her conduct could not constitute gross misconduct because it was unintentional. The ALJ found that petitioner's decision to report to work while distracted was "consciously reckless" and, therefore, amounted to gross misconduct.

This court reversed the ALJ's ruling because it was premised on a reason (reporting to work while distracted) that was not the Employer's stated reason for terminating petitioner. Lynch I, 93 A.3d at 677. We remanded the matter to the OAH, instructing the ALJ to consider the issue described in the introductory paragraph above.⁵

On remand, the ALJ found that petitioner's leaving the gun in the restroom, conduct that the ALJ found was "not fleeting" and that did not "self-correct," was misconduct within the meaning of the Act and was "sufficiently egregious" to take petitioner out of the protection of the Unemployment Compensation Act's humanitarian goals and "to require a finding of gross misconduct." The ALJ found that petitioner's "negligence shows substantial disregard sufficient to find misconduct not because of recurrence or evil design, but because she, an experienced security officer licensed to carry and use a gun, left a loaded 9mm handgun unattended in a public space that she was employed to protect." The ALJ found that as a professional licensed to carry a firearm, petitioner "was more than ordinarily aware of a gun's ... destructive ability." The ALJ emphasized that petitioner had just returned from a leave of absence, and that "[s]uch an absence could reasonably take any employee out of his or her normal routine," a circumstance that "should, in a seasoned professional, have resulted in a heightened awareness of the dangers inherent in carrying a firearm." Instead, the ALJ found petitioner "disregarded that danger" by failing to pick up her weapon and check for it when leaving the restroom, thereby "creat[ing] a highly dangerous situation for a quarter of an hour."

The ALJ found "nothing in the record to suggest that [petitioner] placed her loaded gun on the shelf with the intent to leave it behind[,]" but reasoned that "a lack of intentionality is not the end of [the] analysis." Citing Badawi v. Hawk One Sec., Inc., 21 A.3d 607, 614 (D.C.2011), the ALJ further reasoned that it was appropriate to consider whether petitioner " ‘proffer[ed] evidence suggesting that [her] actions were sufficiently excusable to negate willfulness or deliberateness,’ " i.e., a "good reason for what might otherwise be misconduct." Noting petitioner's explanation that she was distracted with personal problems at home, the ALJ did "not find this reason to be sufficiently excusable as to negate [petitioner's] reckless and conscious disregard of the harm to Employer's interests of failing to remove her loaded weapon from an unsecured and publicly accessible bathroom." This putative mitigating factor, the ALJ concluded, "does not excuse creating a highly dangerous, in fact, potentially deadly situation in her workplace" that "directly undercut the purpose of the Employer's presence at HHS: to maintain safety in the building [.]" Finally, the ALJ observed that although petitioner's conduct was "not malicious or intentional," it "strains credulity to think such an immediate threat to the physical safety of those in the workplace caused by a claimant's disregard of her primary responsibility as a security guard would constitute anything less than misconduct[.]" Accordingly, the ALJ ruled that p...