Shepherd v. Dist. of Columbia Dept. of Employ

• Decision Date: 12 September 1986
• Docket Number: No. 85-974.,85-974.
• Citation: 514 A.2d 1184
• Parties: Pedro D. SHEPHERD, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

514 A.2d 1184

Pedro D. SHEPHERD, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 85-974.

District of Columbia Court of Appeals.

Submitted July 7, 1986.

Decided September 12, 1986.

Pedro D. Shepherd filed a brief pro se. N. Denise Wilson-Taylor, Washington, D.C., was on brief, for respondent. Michael A. Milwee, Washington, D.C., also entered an appearnce for respondent.

Before BELSON, TERRY, and STEADMAN, Associate Judges.

TERRY, Associate Judge:

Petitioner Shepherd seeks review of an order of the Department of Employment Services denying his claim for unemployment benefits on the ground that he was discharged for job-related misconduct. D.C.Code § 46-111(b) (1986 Supp.). Because the Department's ruling is supported by substantial evidence, we affirm the order.

I

Mr. Shepherd was employed by Gallaudet College as a coordinator of material handling from February 1977 to January 1985. He was fired on January 28, 1985, because of excessive absenteeism, tardiness, and poor job performance.

Shepherd filed a claim for unemployment benefits the day after he was fired. He stated on the claim form that he had been discharged for "poor performance," but made no mention of absenteeism or tardiness. The employer failed to submit a statement in response,¹ and a claims examiner determined that Mr. Shepherd was entitled to benefits because "poor performance does not constitute any form of misconduct" under applicable law. The employer appealed.

At a hearing before an appeals examiner, the employer presented the testimony of Harry White, Shepherd's immediate supervisor, and LaVarne Hines, the Director of Administrative Services at Gallaudet College. Mr. White testified that Shepherd had been discharged because of his "[e]xcessive absenteeism and poor performance," as well as tardiness. Although the college did not provide documentation of Mr. Shepherd's poor attendance in the form of time sheets or similar records, it did offer into evidence copies of three warning letters that had been sent to him. These written warnings, dated January 14, January 30, and July 20, 1984, gave very detailed descriptions, including dates and times, of occasions when Shepherd's attendance had been unsatisfactory. With regard to these letters, Miss Hines testified:

Letters of warnings which Mr. Shepherd received . . . clearly outline specific dates [when] he did not arrive to work on time . . . specific dates relative to his performance, specific dates relative to extensive lunch times, excessive use of lunch hours. Dates and times relative to making stops outside of the allotted duty which he is required to perform. But it is not a blanket type of statement [that] he did not arrive to work on time. Dates and times have been documented into the letters you [the appeals examiner] have received.

The allegations made in the warning letters were corroborated by Mr. White's independent testimony at the hearing. In addition, Mr. White stated that he had "warned Mr. Shepherd verbally many, many times and it just didn't do any good."

Mr. Shepherd testified on his own behalf. He disputed some of the dates and times and other details in the warning letters. He also stated that many of his absences were excused because they were due to a work-related injury he received on January 30, 1984. Other absences were chargeable to vacation time or sick leave, and all of these, he said, were approved and, when necessary, supported by medical documentation. He did admit, however, that his doctor had authorized him to return to work within two weeks after his injury. Shepherd introduced into evidence copies of several leave slips, in an attempt to corroborate his assertion that all of his absences either were excused or related to his injury. The employer's evidence, however, established a pattern of absenteeism and tardiness over a period of several months, both before and after he was injured.

The appeals examiner reversed the decision of the claims examiner. He found that the employer's evidence was sufficient to establish that Mr. Shepherd had been "terminated for not being regular in his attendance." Concluding that the failure of an employee to be regular in attendance constituted job-related misconduct, the examiner ruled that Shepherd was not entitled to unemployment benefits. His ruling was upheld by the Office of Appeals and Review. Mr. Shepherd now asks us to overturn that decision, claiming that he was not guilty of disqualifying misconduct.

II

In cases of this kind, the court performs a limited function. We cannot retry the facts or rehear the evidence. Our task is simply to determine whether there...