Lynch v. Masters Sec.

• Citation: 93 A.3d 668
• Decision Date: 26 June 2014
• Docket Number: No. 13–AA–517.,13–AA–517.
• Parties: Jacqueline LYNCH, Petitioner, v. MASTERS SECURITY, Respondent.
• Court: D.C. Court of Appeals

93 A.3d 668

Jacqueline LYNCH, Petitioner,

v.MASTERS SECURITY, Respondent.

No. 13–AA–517.

District of Columbia Court of Appeals.

Argued April 10, 2014.

Decided June 26, 2014.

Drake Hagner, with whom Jennifer Mezey and John C. Keeney, Jr. were on the brief, for petitioner.

Jeffrey P. Brundage, with whom Edward R. Noonan, Washington, DC, was on the brief, for respondent.

Before FISHER and EASTERLY, Associate Judges, and REID, Senior Judge.

REID, Senior Judge:

Petitioner, Jacqueline Lynch, filed an unemployment compensation claim after she was terminated from employment by Respondent, Masters Security. A District of Columbia Department of Employment Services (“DOES”) claims examiner disqualified her from receiving benefits on the ground that she committed gross misconduct in that she “violated [Masters Security's] weapons handling policy by leaving her loaded gun in the ladies room unsecured.” Sergeant Lynch filed an appeal with the Office of Administrative Hearings (“OAH”). After finding that Sergeant Lynch had not violated a company rule regarding the handling of her firearm, an OAH administrative law judge (“ALJ”) affirmed the claims examiner's decision on the ground that Sergeant Lynch's “actions were reckless” because she went to work knowing that she was “distracted” by her mother's illness and failed to notice that she did not have possession of her weapon. The ALJ also denied Sergeant Lynch's motion for reconsideration. Sergeant Lynch lodged a petition for review with this court.

For the reasons set forth below, we reverse the agency decision. We hold that the ALJ's orders are not “in accordance with the law,” because they are based on a reason for termination that Masters Security did not articulate; hence, the orders violate the fundamental principle that the denial of unemployment benefits to a claimant must be grounded on the reason specified by the employer. Although we agree with the ALJ that Masters Security did not prove a violation of its rules, we remand this case to OAH to determine whether the existing record reveals that Masters Security proved by a preponderance of the evidence that Sergeant Lynch's act of leaving her loaded weapon in a publicly accessible place—standing alone and regardless if doing so violated her employer's rule—is the kind of gross negligence that this court has equated with intentionality due to the serious harm that could ensue.

FACTUAL SUMMARY

The record before us indicates that Masters Security provides security services to various clients, including the federal Department of Health and Human Services (“HHS”). When Masters Security terminated Sergeant Lynch, she was a five-year employee holding the rank of sergeant, and she was assigned to the lobby of the HHS headquarters building.

During the hearing before the ALJ on February 25, 2013, Sergeant Lynch was represented by an attorney, and Masters Security was represented by Major Bernard Battle, Vice President of Operations for Masters Security. Captain Timothy Nelson, Sergeant Lynch's supervisor, testified that upon her arrival at work on the morning of January 14, 2013, Masters Security distributed a weapon to her. Before taking her post in the lobby, Sergeant Lynch went into a restroom. She removed her weapon upon entering a bathroom stall. Later, another Masters Security employee, Irene Burton, entered the same stall in the restroom, found a weapon on the toilet paper dispenser and took it to Captain Nelson.¹ Officer Burton acknowledged that she once left her weapon in the bathroom but was not terminated.

Captain Nelson determined that the weapon that Officer Burton found had been issued to Sergeant Lynch. He recommended that Sergeant Lynch be suspended, pending termination, because “she left a [loaded] weapon in the bathroom stall, which is [a] termination offense according to the employee handbook of Masters Security.” ² While Captain Nelson “was trying to handle [the matter] in-house,” another security officer called Major Battle to report the incident. Major Battle contacted Captain Nelson and instructed him to “get [Sergeant Lynch] off of post immediately and send her home, and write up a personnel action form.” Major Battle contacted Masters Security's Vice President, Kristine Nichols, the ultimate decision-maker. He later informed Captain Nelson that Sergeant Lynch would have to be terminated “because of the offense of leaving her weapon in the bathroom,” “her loaded weapon in the bathroom.” When the ALJ asked Captain Nelson if he had spoken with Sergeant Lynch “to find out why she had left the gun in the bathroom,” he responded: “[S]he had told me that she had been going through some things. I believe she has a sick person in her family, and her mental state wasn't right, at the time.” The ALJ said, “So, she was distracted? ... Is that correct?” Captain Nelson answered, “Yes, Ma'am.”

Major Battle attempted to question Captain Nelson about the nature of Sergeant Lynch's training, and to introduce documents about her training, but the ALJ said she did not believe there would be any dispute about training and that in her findings of fact, she would say that Masters Security “did not train [Sergeant Lynch] that leaving her gun in the bathroom was appropriate.” When Major Battle said that was not acceptable, the ALJ asked why. Major Battle answered, “Because it states in her training manual that leaving a weapon—you're never supposed to leave a weapon, an unarmed weapon—.” The ALJ cut him off and inquired, “Isn't that what I just said?” Major Battle responded, “Okay, that's fine.”

During her testimony, Sergeant Lynch explained that she “had a lot of things on [her] mind,” and that her “mother has been very ill.” She asserted: “I went into the restroom, used it and as I head out, I usually, I always touch my weapon before I come out of the restroom.... [B]ecause ... that was on my mind, ... I didn't even think about that. I didn't do it.” After she received a call from Captain Nelson around 8:06 or 8:10 a.m., she realized that she had forgotten her weapon.

Prior to the hearing, Masters Security had submitted a list of exhibits and had included several documents in a folder that was given to the ALJ. After the testimony had been completed, the ALJ asked whether “everyone has presented all the evidence they wish to present.” Major Battle attempted to reference the documents in the folder that had been given to the ALJ. The ALJ interrupted him to indicate that only one of the documents had been “moved in” and that was Officer Burton's statement about finding Sergeant Lynch's loaded weapon in the bathroom stall. The ALJ stated that she had all the evidence she needed, that there was no dispute that “the handbook says people should be fired for this”; there was evidence “to indicate that not everybody gets fired, when they leave their gun in the bathroom”; and there was no dispute about training and licensing. In response to the ALJ's question as to whether there were any other facts she needed to know, counsel for Sergeant Lynch and Masters Security's representative both replied, “No.”

The ALJ issued a final order on March 11, 2013. She concluded that: “Employer fired Claimant, a security officer, for leaving a loaded gun in a publicly-accessible restroom for 15 minutes because she was preoccupied.” She disagreed with Masters Security's statement that Sergeant Lynch's action constituted “disqualifying rule violation misconduct.” The ALJ declared that Masters Security “presented no credible evidence of any policy that would have required [Sergeant Lynch] to place her gun elsewhere than the stall shelf while she used the toilet,” but that as the ALJ “understood the evidence, the problem was not where [Sergeant Lynch] placed the gun while she used the toilet, but that [she] left the bathroom, completely forgetting about the gun for 15 minutes.”

During an exchange with Major Battle at the February 25, 2013, hearing, the ALJ stated: “So, the question is going to be why [Sergeant Lynch] did it and whether it was reasonable for [Masters Security], having apparently decided not to terminate some other employee for doing the same thing, to go ahead and terminate her services for that reason, which seems the same.” When Sergeant Lynch's attorney requested judgment as a matter of law, the ALJ denied the request saying, “even if this isn't a rule violation case, there [are] still some unanswered questions here.” In her order, the ALJ gave her rationale for concluding that Sergeant Lynch had engaged in gross misconduct:

The record evidence is that [Sergeant Lynch], although she knew that she was distracted by worry about her mother, failed for 15 minutes to notice that she did not have possession of her gun. Given the essential nature of her job, which was to use all her senses to monitor security in the area to which she was assigned, and given the fact that she had developed habits for safeguarding the weapon while she used the public bathroom, I conclude that [Sergeant Lynch's] actions were reckless, and constitute misconduct. Claimant's distractionwas not a momentary lapse. She admitted that she remained so distracted that she never noticed that she did not have her weapon until she reported to the arms room at Captain Nelson's request. Simply put, those who are armed security personnel must also monitor themselves to ensure that they are not too impaired, either by drowsiness, distraction, or medication, to safeguard their weapons. [Sergeant Lynch] knew that she was distracted, but went to work anyway. It was sheer luck that her gun was found no more than 15 minutes later by another officer, instead of an unauthorized person.... Instead of notifying [Masters Security] that she needed a break to check on her mother, or that she needed to be absent from work, [Sergeant Lynch] abandoned a loaded weapon in a[ ] publicly-accessible place. Such conduct is egregious, as it presented huge risks to the persons sh...