The Washington Times v. DES, 97-AA-1512.

• Decision Date: 25 February 1999
• Docket Number: No. 97-AA-1512.,97-AA-1512.
• Citation: 724 A.2d 1212
• Parties: THE WASHINGTON TIMES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Ty Clevenger, Intervenor.
• Court: D.C. Court of Appeals

724 A.2d 1212

THE WASHINGTON TIMES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Ty Clevenger, Intervenor.

No. 97-AA-1512.

District of Columbia Court of Appeals.

Argued December 10, 1998.

Decided February 25, 1999.

James A. Borer, Washington, DC, for petitioner.

Sharman J. Monroe, Washington, DC, for respondent.

Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and PRYOR, Senior Judge.

SCHWELB, Associate Judge.

The Washington Times (the employer) has asked this court to review a decision of the Director of the Department of Employment Services (DOES or the agency) in which the Director held that Ty Clevenger, formerly a reporter for the Times who had been discharged for unsatisfactory performance, was entitled to receive unemployment compensation benefits. The employer claims that the Director made various legal errors requiring reversal. We reject most of the employer's contentions, but remand the case for clearer and more explicit findings.

I. THE AGENCY PROCEEDINGS

A. The evidence.

Clevenger came to work for the Times on or about August 8, 1995. He did not perform his duties to the employer's satisfaction during his initial probationary period. On January 4, 1996, Clevenger received a generally unfavorable performance evaluation, but was retained in a probationary status for four more months. On or about May 7, 1996, Clevenger was advised that his writing and reporting abilities remained substandard, and his employment with the Times was terminated.

On May 23, 1996, Clevenger filed a claim for unemployment compensation benefits pursuant to D.C.Code §§ 46-101 et seq. (1996). On June 3, 1996, a DOES claims examiner found Clevenger to be eligible for the requested benefits.¹ The employer objected to the claims examiner's ruling, contending that Clevenger had been discharged for misconduct, and that he was therefore ineligible for benefits. See D.C.Code § 46-112. On July 24, 1996, an evidentiary hearing was held before a DOES appeals examiner.

The employer's sole witness at the hearing was Kenneth M. McIntyre, the Metro editor of the Times. McIntyre testified that he was in charge of the Metro desk and its eight editors and fifteen reporters. Although McIntyre had general oversight responsibility over all of these employees, Clevenger's work was directly supervised by two of the editors, Bernard R. Dagenais and Joseph Curl.

McIntyre testified that Clevenger's performance was deficient in a number of respects. He claimed that Clevenger failed to attend staff meetings and other meetings, omitted important information from his stories, missed deadlines, pitted editors against one another, and failed to respond appropriately to criticism designed to improve his performance. Much, if not most of McIntyre's assessment of Clevenger's work was, however, based on information that McIntyre received from other editors who had regular direct contact with Clevenger.²

The employer also introduced into evidence the report of Clevenger's January 1996 performance appraisal, which was prepared by Dagenais, Curl and McIntyre, as well as portions of the log maintained by Dagenais. The performance appraisal contained many criticisms of Clevenger's work,³ occasional praise,⁴ but little if any indication of willful misconduct.⁵ In his log, Dagenais concluded that "Ty has shown a willingness to work but hasn't used his time wisely," and complained, inter alia, that Clevenger "chose to fight his editors rather than learn from them," that he did inadequate research and missed significant stories, and that although Clevenger's attitude might have improved in the period preceding his dismissal, the "attitude shift" did not have a significant impact on Clevenger's work.

Clevenger testified on his own behalf and painted an entirely different picture of the situation at the Metro desk. He claimed that his difficulties at the Times had their genesis in the inability of the editors who supervised him to get along with one another. According to Clevenger, the editors repeatedly gave him conflicting instructions, and one editor would berate him for carrying out the directives of a different editor. Clevenger asserted that morale among the reporters was very low and resulted in a high turnover rate. He stated that the editors were frequently abusive to him and to other reporters. Clevenger testified that he complained to Dagenais that reporters were being blamed for mistakes made by editors, and he stated that after he had done so, "everything hit the fan," and he was "scapegoated" in retaliation for standing up to the abuse. Clevenger denied the employer's allegation that he was unwilling to learn:

I said from the outset, the first day I came to the Washington Times, I was green, I knew I had a lot to learn. And I was willing to learn. I — to the day I was fired, I was willing to learn. What I was not willing to do was to be belittled and insulted and kicked around like some kind of football. That I was not willing to do and I stood up against that.

B. The appeals examiner's decision.

On August 2, 1996, the appeals examiner issued a brief written decision in which she ruled in favor of the employer. The examiner described Clevenger's unfavorable performance appraisal in January 1996, and noted that he was placed on a second period of probation at that time. The examiner then faulted both Clevenger and his superiors, as follows:

The claimant missed important deadlines (vital in the newspaper business), faulted others for his deficiencies, pitted editors against each other, displayed a progressively negative attitude and missed staff meetings.

The employer was slanderous to the claimant, ill treated its staff, and had unclear lines of authority between line staff and the various editors.

Emphasizing that by the end of his second period of probation, Clevenger had reason to know of the employer's dissatisfaction with him, the examiner concluded that

the employer was attempting to work with an employee, who was not able to receive corrective criticism. The Examiner finds that the employer has met its burden of proof sufficient to support a finding of gross misconduct pursuant to 7 DCMR [§] 312.3 [1994].

The examiner therefore held that "the claimant becomes ineligible for benefits."

C. The Director's decision.

Clevenger filed an internal appeal with the agency's Office of Appeals and Review (OAR). On July 30, 1997, the OAR issued a proposed decision reversing the appeals examiner's decision in a one-page order, the operative portions of which read as follows:

In the instant case, the Claimant was alleged to have committed any [sic] acts of misconduct which resulted in his disqualification for gross misconduct. However, the testimony offered at the Hearing consisted of no witnesses that could testify to any acts of misconduct other than the main supervisor.

However, there were no corroborating witnesses and the Claimant adamantly stated that he was doing the best job he could do under the circumstances. The burden to prove misconduct or gross misconduct is on the Employer and in this case, the Employer has not met its burden of proof.

The Employer alleged issues of not completing jobs, but this was always countered by testimony by the Claimant indicating he had more than one editor telling him what to do as a new reporter, working for The Washington Times. There was no rebuttal evidence given by other editors on the job, or any one to indicate that the Claimant, in fact, had committed any act of misconduct of a deliberate nature.

In summary, the overall testimony does not support any acts of willful misconduct on the part of the Claimant and he should not be denied benefits in this case.

Over the employer's objection, the OAR's proposed decision became the Director's final decision on August 28, 1997. The employer filed a timely petition for review in this court.

II. LEGAL DISCUSSION

A. The standard of review.

Under the District of Columbia Administrative Procedure Act (DCAPA), D.C.Code §§ 1-1501 et seq. (1992), we must sustain the decision of the agency unless it is unsupported by substantial evidence in the record. See, e.g., Wallace v. District Unemployment Compensation Bd., 294 A.2d 177, 178-79 (D.C.1972)

. "The scope of our review is limited to whether substantial evidence supports the Department's determination that the reasons for claimant's discharge did not amount to statutory misconduct." Keep v. District of Columbia Dep't of Employment Servs., 461 A.2d 461, 462-63 (D.C.1983) (per curiam). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Wallace, supra, 294 A.2d at 179 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In order to pass muster under the DCAPA,

(1) the [agency's] decision must state findings of fact on each material, contested factual issue;

(2) those findings must be based on substantial evidence; and

(3) the conclusions of law must flow rationally from the findings.

Perkins v. District of Columbia Dep't of Employment Servs., 482 A.2d 401, 402 (D.C. 1984) (citations omitted).

In the present case, the Director of the DOES reversed the decision of the appeals examiner. Such a reversal implicates a separate standard of review within the agency. The Director of the DOES lacks authority to review de novo the examiner's resolution of a factual issue. Santos v. District of Columbia Dep't of Employment Servs., 536 A.2d 1085, 1088 (D.C.1988). "When OAR reviews an appeals examiner's decision, due deference must be accorded [to] the credibility determinations of the examiner who heard and evaluated the evidence." Coalition for the Homeless v. District of Columbia Dep't of Employment Servs., 653 A.2d 374, 376 (D.C. 1995) (citations and internal quotation marks omitted). The OAR "may not reject an appeals...