Williams v. Dist. Unemployment Comp. Bd.

• Decision Date: 17 February 1978
• Docket Number: No. 12320.,12320.
• Citation: 383 A.2d 345
• Parties: Clarence WILLIAMS, Jr., Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.
• Court: D.C. Court of Appeals

383 A.2d 345

Clarence WILLIAMS, Jr., Petitioner, v. DISTRICT UNEMPLOYMENT COMPENSATION BOARD, Respondent.

No. 12320.

District of Columbia Court of Appeals.

Submitted October 25, 1977.

Decided February 17, 1978.

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Clarence Williams, Jr., pro se.

Russell L. Carter, Bill L. Smith, Robert J. Hallock, Washington, D. C., and Earl S. Vass, Jr., Richmond, Va., were on the brief for appellee.

Before HARRIS, MACK and FERREN, Associate Judges.

FERREN, Associate Judge:

The petitioner, Clarence Williams, Jr., was discharged as a meter reader by Potomac Electric Power Co. He seeks review of a Final Decision by the District Unemployment Compensation Board (the "Board") that disqualified him, on the basis of misconduct, from receiving unemployment benefits for a period of five weeks. The Board affirmed the finding of the Appeals Examiner that Mr. Williams had thrown his flashlight through the glass storm door of a customer's home without justification, in violation of § 10(b) of the District Unemployment Compensation Act (the "Act"), D.C.Code 1973, § 46-310(b).¹ Because of mitigating circumstances, however, the Board reduced the Examiner's proposed disqualification of Mr. Williams from eight weeks to five weeks. We affirm.

I.

Petitioner Williams testified before the Appeals Examiner that on March 11, 1977, a customer called him from across the street to read her meter. (She had not been at home when he went there initially.) According to Mr. Williams, the customer straightaway spoke to him in a derogatory manner and, as he entered the house, failed to restrain her growling dog enough to eliminate his apprehension. An argument developed over the dog whereupon the customer, he said, slurred his mother. Incensed by that comment, Mr. Williams abruptly left the customer's home without reading the meter. Once outside, he threw his flashlight at the storm door and broke three panes of glass (without, he said, endangering the customer). Mr. Williams then called his supervisor, Mr. Griffin, to report the incident.

Mr. Griffin testified that he had responded to Mr. Williams' call by going to the neighborhood, speaking with Mr. Williams to get his story about what had just taken place, and then visiting with the customer. According to Mr. Griffin, the customer failed to corroborate Mr. Williams' version of the events in three important respects. First, she claimed that Mr. Williams had called her a "bitch" before she responded with a slur against his mother. Second, she did not mention the incident with the dog. (Nor did Mr. Griffin raise that incident with her because, he said, Mr. Williams had not mentioned the dog to him when he arrived on the scene.) Third, the customer claimed that she had been standing behind the storm door when Mr. Williams threw the flashlight, that the flashlight had broken the glass at her eye level, but that she had not been injured.

The Appeals Examiner's report, adopted by the Board, included the following findings of fact:

"The customer made a slurring reference to [claimant's] mother" [there was no finding as to whether this occurred before or after Mr. Williams insulted the customer];

"The claimant admitted throwing his flashlight through the glass of the storm door",²

"The customer was standing behind the storm door at the time and the three panels of the door near eye level were broken";

"Although the claimant alleged that the customer's dog made an attempt to bite him at the time, the dog at the time of the incident was standing behind the door";

"The claimant's supervisor [Mr. Griffin] repeatedly stated that the claimant failed to indicate that he was being attacked by any such dog during the course of the claimant's explanation to his supervisor shortly after the incident."

The first two findings are undisputed. Because of hearsay problems, however, the other facts emerge from the record with less certainty.³

As to the third finding, we must accept the customer's hearsay allegation (through Mr. Griffin) that she was standing behind the door at the time the glass was broken, for when confronted with that testimony Mr. Williams did not deny it. Wallace v. District Unemployment Compensation Bd., D.C.App., 294 A.2d 177, 179-80 (1972). Mr. Williams did deny the customer's claim that he had broken the glass door at her eye level, but on the basis of personal observation, however, Mr. Griffin corroborated that fact at the hearing. We must therefore accept the Board's finding, for it was not entirely based on hearsay. Id.

The fourth finding, with respect to the customer's dog, provides the sharpest dispute of all. Mr. Williams' written report and testimony give the threat from the dog significant play. The customer's hearsay statement, coupled with Mr. Griffin's report of his initial conversation with Mr. Williams, would have one believe that the story about the dog was insignificant if not fabricated. Without resolving all that happened here — for the Board did not resolve it — we must accept the Board's finding that the dog was behind the closed storm door at the time Mr. Williams threw the flashlight. Mr. Williams never denied this. Id. Nor, in the end, did he claim that he had thrown the flashlight because of the dog. Although that basis for his action was alleged in his written report of the incident (note 2, supra), he stated at the hearing that he had thrown the flashlight because of the customer's slur against his mother.⁴

Finally, as to the fifth finding, the Board could believe Mr. Griffin's testimony that Mr. Williams had not initially mentioned the dog — a fact probative of the significance to be accorded Mr. Williams' version of the dog's role in the incident.

We therefore accept the Board's findings of fact. We now must determine whether, on the basis of these facts, Mr. Williams was involved in the type of misconduct that would justify disqualification from unemployment benefits pursuant to § 10(b).

II.

Our court has held that a discharge from employment for violation of an employer's rules, or for any other type of alleged misconduct, does not constitute "misconduct" per se for purposes of § 10(b). Hickenbottom v. District of Columbia Unemployment Compensation Bd., D.C.App., 273 A.2d 475 (1971). In order to disqualify a claimant from benefits, the basis for discharge must be "reasonable," considered "not in reference to the business interest of the employer but with reference to the statutory insurance purpose," id. at 478, which "is to protect employees against economic dependency caused by temporary unemployment and to reduce the necessity of relief or other welfare programs." Von Stauffenberg v. District Unemployment Compensation Bd., D.C.App., 269 A.2d 110, 111 (1970) (footnote omitted), aff'd, 148 U.S.App.D.C. 104, 459 F.2d 1128 (1972). More particularly, according to Hickenbottom, misconduct

"must be [1] an act of wanton or wilful disregard of the employer's interest, [2] a deliberate violation of the employer's rules, [3] a disregard of standards of behavior which the employer has the right to expect of his employee, or [4] negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer." [Id. at 477-78; citation omitted; emphasis added.]

These four standards are set forth in the disjunctive; any will justify disqualification for misconduct. Marshall v. District Unemployment Compensation Bd., D.C.App., 377 A.2d 429 (1977). Implied in these standards, however, is a requirement that the employee be on notice "that should he proceed he will damage some legitimate interest of the employer for which he could be discharged." Hickenbottom v. District of Columbia Unemployment Compensation Bd., supra at 478. See Green v. District Unemployment Compensation Bd., D.C. App., 346 A.2d 252, 255 (1975).

Here, we believe that Mr. Williams could have been expected to know that throwing a flashlight through a customer's glass storm door, with personal injury a possible consequence, amounted to "`disregard of standards of behavior which the employer has the right to expect of his employee.'" Hickenbottom v. District of Columbia Unemployment Compensation Bd., supra at 477. We hold that unless Mr. Williams can show legal justification, his actions amounted to misconduct proscribed by § 10(b).

III.

Mr. Williams' defense is provocation. If proved legally adequate, it would excuse the alleged misconduct and require reversal of disqualification from benefits. See Georgia-Pacific Corp. v. Employment Div., 21 Or.App. 135, 533 P.2d 829 (1975).⁵ We therefore must consider, pursuant to D.C. Code 1973, § 46-311(f), whether there is evidence to support the conclusion of the Appeals Examiner and the Board that "there was no legally adequate provocation which would in any way have justified the claimant in throwing his flashlight through a glass door at or near the customer."

There were only two relevant events: the customer's admitted slur against Mr. Williams' mother, and the customer's alleged refusal to harness her dog properly.⁶ At common law, in the absence of a special statute, no provocative acts or words — unless accompanied by an overt act of hostility — would justify an assault, no matter how offensive or exasperating the acts or words were. See, e.g., Hubbard v. Perlie, 25 App.D.C. 477 (1905); Mangus v. Miller, 35 Colo.App. 335, 535 P.2d 219 (1975); Cohen v. Peoples, 140 Ind.App. 353, 220 N.E.2d 665 (1966). Courts have applied this principle in the unemployment compensation context when evaluating whether an employee was properly discharged for misconduct. Bevine v. Commonwealth Unemployment Compensation Bd. of Review, 15 Pa. Cmwlth. 371, 327 A.2d 197 (1974) (disqualification for misconduct affirmed, where claimant assaulted a fellow employee who had thrown a company tally sheet,...