Morris v. U.S. Environmental Protection Agency, No. 07-AA-654.

• Decision Date: 09 July 2009
• Docket Number: No. 07-AA-654.
• Citation: 975 A.2d 176
• Parties: Connie K. MORRIS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: D.C. Court of Appeals

975 A.2d 176

Connie K. MORRIS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 07-AA-654.

District of Columbia Court of Appeals.

Argued March 20, 2009.

Decided July 9, 2009.

Theodore S. Allison, Washington, DC, for petitioner.

Brian T. Kehoe, Special Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time, R. Craig Lawrence, Assistant United States Attorney, and Cindy S. Owens, Special Assistant United States Attorney, were on the brief, for respondent.

Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and STEADMAN, Senior Judge.

FISHER, Associate Judge:

Connie K. Morris asks us to review the decision of the Office of Administrative Hearings ("OAH") finding her ineligible to receive unemployment compensation benefits because she was fired for gross misconduct. Concluding that the Administrative Law Judge ("ALJ") failed to make findings on each materially contested issue of fact, we remand for further proceedings.

I. The Factual and Procedural Background

Petitioner Connie K. Morris worked for the Environmental Protection Agency ("EPA") as an Information Liaison Specialist from January 12, 2003, until she was terminated on March 10, 2007. Ms. Morris alleges that she suffers from a "severe allergy to mold, mildew and dust mites" that causes her to experience "body swelling, breathing difficulties, bronchitis, rashes, rapid heart rate, rise in blood pressure," and other allergic reactions.

In April 2005 Ms. Morris sought an accommodation permitting her to work from home full-time, claiming that conditions in the EPA building triggered her severe allergic reactions. Although she previously had been allowed to work from home on occasion, her formal request for a telework arrangement was denied. When Ms. Morris sought reconsideration, the EPA determined she was a person with a disability and transferred her to a "clean space" facility. She experienced an allergic reaction in her new location, however, and missed many days of work during her recovery. Similar difficulties occurred at other locations to which she was transferred as a result of her continued complaints, despite the fact that the air quality in each of her work environments was extensively tested by the United States Public Health Service and found to be "acceptable by all applicable standards" and "better than ambient air."

On August 24, 2006, after she had used up all of her leave, her supervisor, John Richards, issued a memorandum informing Ms. Morris that her failure to provide appropriate medical documentation of her illness, and her continuing failure to report to work, "may lead to being placed in absence without leave (AWOL) status and/or disciplinary action, up to and including removal from Federal service." Although Ms. Morris provided several letters from her doctors, Mr. Richards found these documents insufficient because they did not specify what allergens were triggering Ms. Morris's reactions, or establish that her problems were caused by her work environment. Ms. Morris continued to miss work, and Mr. Richards charged her with being absent without leave for 412 hours during the period from August 21, 2006, through December 18, 2006.

On December 18, 2006, Mr. Richards sent Ms. Morris an Order to Report for Normal Tour of Duty, warning her that if she did not return to work beginning on January 2, 2007, she risked other "disciplinary measures, including, and up to removal." On January 3,¹ Ms. Morris reported to work, but after two hours stated that she was sick and needed to leave. From January 4, 2007, until February 2, 2007, Ms. Morris called Mr. Richards each morning to inform him that she was unable to come to work; each day, Mr. Richards recorded her status as AWOL and insubordinate and reminded her that she was placing her job in serious jeopardy.²

On February 5, 2007, Mr. Richards issued a Notice of Proposed Removal based on two charges: (1) being AWOL for 468 hours between August 20, 2006, and December 29, 2006; and (2) insubordination and failure to follow supervisory instructions between January 3, 2007, and February 2, 2007. Ms. Marylouise Uhlig, the Associate Assistant Administrator, found that both charges against Ms. Morris had been "proved by the great weight of the evidence," and she removed Ms. Morris from federal service effective March 10, 2007.

The Administrative Law Judge ("ALJ") found that "Claimant suffered from a severe allergy to mold, mildew and dust mites[,]" but that "there [was] no evidence in the record to establish that in her several EPA work locations Claimant was exposed to specifically-identified allergens which caused Claimant's severe allergic reactions." His decision to deny unemployment benefits rested primarily on the undisputed fact that "Claimant failed to come to work at any time during the period January 4, 2007, through February 2, 2007." Faced with certain options, Ms. Morris "made an intentional decision to ... refuse to return to work in violation of Employer's direct order...." Furthermore, he concluded, "Claimant has failed to prove mitigating circumstances relating to her failure to report for work during [this time]." Based on these findings, the ALJ held that "Claimant's refusal to report for work during the period January 4, 2007, through February 2, 2007, after being expressly ordered to do so, constituted gross misconduct in the form of repeated absences after warning and insubordination."

II. Standard of Review

"This court must affirm an OAH decision when (1) OAH made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) OAH's conclusions flow rationally from its findings of fact." Rodriguez v. Filene's Basement, Inc., 905 A.2d 177, 180 (D.C.2006). "Factual findings supported by substantial evidence on the record as a whole are binding on the reviewing court, although this court may have reached a different result based on an independent review of the record." McKinley v. District of Columbia Dep't of Employment Servs., 696 A.2d 1377, 1383 (D.C.1997) (citation omitted). In conducting our review, we are bound by the rule that "[a]n administrative order can only be sustained on the grounds relied on by the agency." Georgetown University Hospital v. District of Columbia Dep't of Employment Servs., 916 A.2d 149, 152 (D.C.2007) (citation omitted).³ "If the agency fails to make a finding on a material, contested issue of fact, this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue." Brown v. Corrections Corp. of America, 942 A.2d 1122, 1125 (D.C.2008) (citing Colton v. District of Columbia Dep't of Employment Servs., 484 A.2d 550, 552 (D.C.1984)).

III. Analysis

A. Statutes and Regulations

A terminated employee who satisfies the basic requirements of the unemployment compensation statutes is presumed to be eligible for benefits. D.C.Code § 51-109 (2001). That presumption is rebutted, and the employee becomes ineligible for benefits, when the employer proves by a preponderance of the evidence that the employee was fired for misconduct. D.C.Code § 51-110 (2001). The District of Columbia distinguishes between "gross misconduct" and "misconduct, other than gross misconduct," which we have referred to as "simple misconduct." D.C.Code § 51-110(b)(1) and (2) (2001); see Chase v. District of Columbia Dep't of Employment Servs., 804 A.2d 1119, 1121-22 (D.C.2002). Being discharged for gross misconduct has a different impact on unemployment benefits than being discharged for simple misconduct. See D.C.Code § 51-110(b) (2001).⁴

"[T]he question whether the employee committed misconduct must be resolved with reference to the statutory purpose, which is to protect employees against economic dependency caused by temporary unemployment." Chase, 804 A.2d at 1123 (quoting Butler v. District of Columbia Dep't of Employment Servs., 598 A.2d 733, 735 (D.C.1991)); accord, The Washington Times v. District of Columbia Dep't of Employment Servs., 724 A.2d 1212, 1216-17 (D.C.1999) ("The statute is remedial humanitarian legislation of vast import, and its provisions must be liberally and broadly construed.") (internal citations and quotation marks omitted). An employer seeking to prevent the payment of unemployment compensation bears the burden of proving that the employee engaged in misconduct (gross or otherwise). 7 DCMR § 312.2; Brown, 942 A.2d at 1123.⁵ "In determining whether an employee has engaged in disqualifying misconduct, [the agency] cannot simply inquire whether the employer was justified in his decision to discharge the employee: `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.'" Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 675 (D.C.1984) (quoting Hawkins v. District Unemployment Compensation Bd., 381 A.2d 619, 622 (D.C.1977)).

Gross misconduct is defined by regulation as

an act which deliberately or willfully violates the employer's rules, deliberately or willfully threatens or violates the employer's interests, shows a repeated disregard for the employee's obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.

7 DCMR § 312.3. One of the listed examples of gross misconduct is "[r]epeated absence or tardiness following warning." 7 DCMR § 312.4(k). We have said that "[a]ttendance at work is an obligation which every employee owes to his or her employer, and poor attendance, especially after one or more warnings, constitutes misconduct sufficient to justify the denial of a claim for unemployment benefits." Shepherd v. District of Columbia Dep't of Employment Servs., 514 A.2d 1184, 1186 (D.C.1986).

B. The Effect of Illness

District of Columbia regulations...