FORT MYER CONSTRUCTION CORPORATION, PETITIONER, v. CARROLL D. BRISCOE, RESPONDENT.
No. 20-AA-0480
DISTRICT OF COLUMBIA COURT OF APPEALS
August 3, 2023
Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (2020-DOES-001625)
(Argued February 8, 2023 Decided August 3, 2023)
Joseph E. Schuler, with whom Diana M. Caldas was on the briefs, for petitioner.
Rebecca Steele, with whom Jonathan H. Levy, Mariah Hines, and Nicole Dooley were on the briefs, for respondent.
Before MCLEESE and DEAHL, Associate Judges, and GLICKMAN, Senior Judge.
Opinion for the court PER CURIAM.
Opinion by Associate Judge MCLEESE, concurring in part and dissenting in part, at page 23.
PER CURIAM: The case involves competing challenges to a finding that respondent Carroll D. Briscoe was discharged for simple workplace misconduct,
I. Factual and Procedural Background
Certain basic facts appear to be undisputed for current purposes. Mr. Briscoe worked for Fort Myer as a division superintendent. His responsibilities included review and approval of time sheets (“tickets“) for division employees. Division employee Kendra Ginyard complained to Mr. Briscoe at one point that she had been removed from the Sunday schedule, an assignment for which Ms. Ginyard would have received double pay. Ms. Ginyard, a Black woman, complained that it was unfair that the shift at issue was instead given to a white male employee.
Mr. Briscoe contacted Paolo Spada, who was responsible for creating the work schedule for division employees, to ask why Ms. Ginyard was not scheduled
Mr. Briscoe sought unemployment-compensation benefits. A claims examiner concluded that Mr. Briscoe was qualified to receive such benefits because Fort Myer had not presented evidence showing that Mr. Briscoe had engaged in misconduct. Fort Myer appealed that decision to the Office of Administrative Hearings (OAH), arguing that Mr. Briscoe had engaged in gross misconduct.
An OAH Administrative Law Judge (ALJ) held an evidentiary hearing. At the hearing, Mr. Spada testified that Mr. Briscoe had directed him to sign the ticket for Ms. Ginyard. A Fort Myer official also testified that Mr. Briscoe had not denied directing Mr. Spada to sign the ticket.
The ALJ concluded that Mr. Briscoe had engaged in simple misconduct and was therefore temporarily disqualified from receiving unemployment benefits. Crediting Mr. Spada‘s testimony, and discrediting Mr. Briscoe‘s testimony to the contrary, the ALJ found that Mr. Briscoe had directed Mr. Spada to sign Ms. Ginyard‘s ticket. Because the ALJ further found that Mr. Briscoe‘s conduct was against Fort Myer‘s interests, the ALJ concluded that Mr. Briscoe had engaged in misconduct.
Fort Myer sought review in this court, and this court remanded the record for the ALJ to make an explicit finding as to whether Mr. Briscoe‘s actions were motivated by a desire to protect Fort Myer‘s interests. Fort Myer Constr. Corp. v. Briscoe, No. 20-AA-480, Mem. Op. & J. at 2 (D.C. Aug. 18, 2021).
On remand, the ALJ held a further evidentiary hearing. Mr. Briscoe‘s testimony at that hearing included the following. Mr. Briscoe spoke with Mr. Spada about the change to Ms. Ginyard‘s work schedule because Ms. Ginyard was threatening to raise a discrimination complaint. Mr. Briscoe was concerned about that possibility in light of an incident from two or three months earlier in which a Fort Myer supervisor had made a racially discriminatory comment to Mr. Briscoe. Two different Fort Myer supervisors dissuaded Mr. Briscoe from filing a complaint
Mr. Briscoe believed that paying Ms. Ginyard for a day on which she did not work would resolve any potential discrimination complaint that Ms. Ginyard might have. Mr. Briscoe had seen supervisors who, unlike him, “ran the asphalt division,” take that course of action in resolving similar complaints. For example, Mr. Briscoe described an incident in which an employee made a complaint about being removed from the work schedule, the employee threatened to raise a discrimination claim, and the supervisor who ran the asphalt division directed that the employee be paid even though the employee had not worked. Consistent with that practice, Mr. Briscoe maintained that he did not direct Mr. Spada to sign the ticket but instead told him to talk to a higher-level supervisor before doing so. Mr. Briscoe did not intend to harm Fort Myer, but rather “was trying to take care of [his Fort Myer] family.”
Mr. Briscoe acknowledged that he did not take steps to verify or investigate Ms. Ginyard‘s complaint. He also acknowledged that he was not sure whether what happened to Ms. Ginyard was the result of discrimination or favoritism for a friend.
After the hearing, the ALJ issued a new ruling. The ALJ reiterated the earlier finding that Mr. Briscoe had directed Mr. Spada to sign Ms. Ginyard‘s ticket, again discrediting Mr. Briscoe‘s testimony that he instead instructed Mr. Spada to speak with another supervisor before doing so. The ALJ credited Mr. Briscoe‘s testimony in other respects, however, finding that (1) several months before the incident with Ms. Ginyard, a Fort Myer supervisor made a racist comment to Mr. Briscoe; (2)
Based on those findings, the ALJ reaffirmed its prior conclusion that Mr. Briscoe committed misconduct but not gross misconduct. Describing Mr. Briscoe‘s conduct as “attempted misappropriation of funds,” the ALJ concluded that Mr. Briscoe had “violat[ed]” Fort Myer‘s “interest and expectation of its employees.” The ALJ did not view Mr. Briscoe‘s conduct as gross misconduct, however, for several reasons: the conduct did not have a significant adverse effect on Fort Myer‘s operations; no resources were misappropriated; the conduct was an isolated incident; Mr. Briscoe was motivated in part by a desire to avoid a discrimination complaint that could shut down Fort Myer; Mr. Briscoe did not personally benefit; and Mr. Briscoe had seen other Fort Myer supervisors correct pay issues in similar circumstances.
This court will affirm an agency‘s decision “if the decision contains findings on each material, contested issue of fact; substantial evidence supports each factual finding; the decision‘s legal conclusions flow rationally from the factual findings; and the decision is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Tyler v. George Washington Med. Fac. Assocs., 75 A.3d 211, 213 (D.C. 2013). “We defer to the ALJ‘s factual findings if they are supported by substantial evidence, but legal conclusions, including whether a fired employee‘s conduct constitutes misconduct, are reviewed de novo.” Id. (internal quotation marks omitted).
A former employee who has been terminated for misconduct is disqualified from receiving certain unemployment benefits, with the extent of the disqualification depending on the gravity of the misconduct.
Although the regulations “might seem to permit a finding of misconduct based on virtually any conduct that falls short of an employer‘s reasonable expectations,” the regulations “are not to be read so broadly.” Tyler, 75 A.3d at 214. “Because our unemployment-compensation law was designed to protect employees from the consequences of temporary unemployment, we read the definition of misconduct with an eye towards the statute‘s humanitarian purpose.” Id. Thus, a finding of misconduct requires more than “that the employer was justified in [its] decision to discharge the employee.” Id. (internal quotation marks omitted). In addition, “[m]ore than mere negligence by an employee is required for a finding of misconduct.” Id. Rather, misconduct requires “[i]ntentionality or conscious
A. Gross Misconduct
Fort Myer contends that the ALJ could not reasonably have credited Mr. Briscoe‘s testimony that he intended his actions to benefit Fort Myer. In support of that contention, Fort Myer makes a number of more specific arguments: (1) the ALJ discredited Mr. Briscoe‘s testimony that he did not direct Mr. Spada to sign Ms. Ginyard‘s ticket but instead told Mr. Spada to talk to another supervisor; (2) Mr. Briscoe‘s testimony that he was acting out of a concern to protect Fort Myer from a discrimination claim was an after-the-fact explanation; (3) Mr. Briscoe did not take reasonable steps to investigate Ms. Ginyard‘s complaint and was not certain that any discrimination actually occurred; (4) Mr. Briscoe did not follow proper procedures for handling a discrimination complaint; (5) by directing Mr. Spada to sign Ms. Ginyard‘s ticket, rather than signing the ticket himself, Mr. Briscoe concealed his involvement in the incident; and (6) Mr. Briscoe‘s acts did not in fact benefit Fort Myer.
In arguing to the contrary, Fort Myer invokes the maxim “falsus in uno, falsus in omnibus.” The Santissima Trinidad, 20 U.S. 283, 339 (1822). That maxim means “false in one thing, false in everything.” Kinard v. United States, 416 A.2d 1232, 1233 (D.C. 1980). In its strongest form, the maxim was embodied in an instruction that juries were required to disregard all of the testimony of a witness who they believed intentionally testified falsely on a material point. Id. at 1233-34. That “harsh rule was never widely followed” in the United States. Id. at 1234. In Kinard, this court held that juries should not be instructed about the maxim even in a weaker permissive form authorizing juries to apply the maxim if they chose to do so. Id. at 1234-36. In sum, factfinders in this jurisdiction are “free to reject all or part of a witness‘[s] testimony.” Id. at 1235. We see no basis upon which to second-guess
Fort Myer also argues that the ALJ failed to give “exacting scrutiny” to Mr. Briscoe‘s testimony. Fort Myer initially based this argument on the premise that the ALJ‘s findings were “based exclusively on hearsay.” R.B. v. U.S. Env‘t Prot. Agency, 31 A.3d 458, 463 (D.C. 2011). Fort Myer appears to have abandoned that premise in its supplemental reply brief. Instead, Fort Myer argues that the ALJ ought to have given exacting scrutiny to Mr. Briscoe‘s testimony because the testimony was uncorroborated and false on a central point. We conclude that the ALJ appropriately gave careful scrutiny to Mr. Briscoe‘s testimony and reasonably explained the ALJ‘s credibility determinations.
It is not entirely clear whether Fort Myer also argues that Mr. Briscoe engaged in gross misconduct even on the facts as the ALJ found them. In any event, we hold that the facts as found by the ALJ do not support a finding of gross misconduct, essentially for the reasons stated by the ALJ: the conduct did not have a significant adverse effect on Fort Myer‘s operations; no resources were misappropriated; the conduct was an isolated incident; Mr. Briscoe was motivated in part by a desire to avoid a discrimination complaint that could shut down Fort Myer; Mr. Briscoe did
“In order to demonstrate that an employee‘s actions amounted to gross misconduct, more than willful poor performance must be shown; an employer must make a heightened showing of seriousness or aggravation, lest the statutory distinction between gross and simple misconduct be erased.” Scott v. Behav. Rsch. Assocs., Inc., 43 A.3d 925, 931 (D.C. 2012) (footnote, ellipses, and internal quotation marks omitted). We can agree that Mr. Briscoe‘s conduct was lacking in some respects, and we do not question that Fort Myer was within its rights to terminate Mr. Briscoe. Mr. Briscoe (1) could have referred the matter to a supervisor, as he claimed to have done by directing Mr. Spada to speak to one; (2) he could have investigated the situation more carefully before acting; and (3) his approach appears to have been inconsistent with the training Fort Myer had given to its employees. The ALJ‘s findings, however, indicate that Mr. Briscoe acted in a good-faith belief that he was protecting Fort Myer‘s interests by taking steps similar to those he had seen other (albeit higher-up) Fort Myer supervisors take in analogous circumstances.
B. Simple Misconduct
The ALJ initially concluded that Mr. Briscoe engaged in simple misconduct but not gross misconduct. When Fort Myer filed a petition for review of that ruling,
Ordinarily, a party that wishes to alter a judgment must itself file a notice of appeal, a cross-appeal, a petition for review, or a cross-petition for review. See District of Columbia v. Chinn, 839 A.2d 701, 712 n.10 (D.C. 2003) (“[W]e recognize the well-settled rule of practice that on an adversary‘s appeal, a party may not challenge or seek to enlarge a judgment without a timely cross-appeal.“); Bath Iron Works Corp. v. White, 584 F.2d 569, 573 n.2 (1st Cir. 1978) (Respondent who failed to file cross-petition was “precluded now from attacking the Board‘s decision in an attempt to enlarge his rights thereunder.“).
The cross-appeal/cross-petition rule “is not jurisdictional, however, and we have held that it can yield in appropriate circumstances.” In re Gardner, 268 A.3d 850, 859 n.17 (D.C. 2022). Fort Myer did not raise a procedural objection in its supplemental reply brief to Mr. Briscoe‘s challenge to the ALJ‘s conclusion that Mr.
Under the circumstances, we consider Mr. Briscoe‘s challenge to the ALJ‘s conclusion that Mr. Briscoe engaged in simple misconduct. We do so for four reasons. First, having itself failed to object in a timely fashion to Mr. Briscoe‘s belated argument, Fort Myer is ill-positioned to object to the belated nature of Mr. Briscoe‘s argument. Cf., e.g., Sims v. United States, 213 A.3d 1260, 1267 n.11 (D.C. 2019) (by failing to argue that appellant‘s argument was not properly preserved at trial, “the government has waived the waiver“) (internal quotation marks omitted). Second, after we remanded the record, the ALJ issued a new order addressing simple misconduct in light of additional evidence presented on remand. It is understandable that the additional evidence and new order might cause Mr. Briscoe to reconsider his initial decision not to challenge the ALJ‘s earlier ruling on the point. Third, because we remanded the record, rather than the case, Mr. Briscoe had no occasion to file a petition or cross-petition after the ruling on remand. Cf. Bell v. United States, 676 A.2d 37, 41 (D.C. 1996) (after record remand, no new notice of appeal is required). Finally, the simple-misconduct determination is a legal question that we review de novo. Gilmore v. Atl. Servs. Grp., 17 A.3d 558, 562 (D.C. 2011).
Our dissenting colleague views the evidence and the ALJ‘s findings differently. As the dissent recounts, there is a sentence in the ALJ‘s factual findings on remand stating that Mr. Briscoe had seen other supervisors correcting payment problems and therefore “believed he could do the same thing.” The best understanding of this finding, and the one consistent with the evidence before the ALJ, is that Mr. Briscoe thought he could correct the payment problem and have Ms. Ginyard paid (i.e., “do the same thing“) in precisely the manner he claimed:
The dissent instead reads that sentence as a finding that Mr. Briscoe believed he was authorized to do exactly what he repeatedly insisted he had not done—direct Mr. Spada to sign the ticket without speaking to a higher-up.4 The record could not
The dissent‘s reading of this sentence from the ALJ‘s order, which underlies each of its counterarguments, is also inconsistent with the ALJ‘s bottom line that Mr. Briscoe “intentionally disregarded [his] employer‘s expectation” when he directed Mr. Spada to sign the ticket and “understood the conduct at issue could lead to discharge.” That was the basis for the ALJ‘s finding of simple misconduct, despite its conclusion (favorable to Mr. Briscoe) that he “was motivated by a desire to protect [Fort Myer‘s] interests.” So it makes no sense to read the sentence the dissent homes in on as reaching the opposite and unsupported conclusion—that Mr. Briscoe believed he was permitted to direct Mr. Spada to sign the ticket himself—
For the foregoing reasons, we affirm OAH‘s ruling.
So ordered.
MCLEESE, Associate Judge, concurring in part and dissenting in part: I agree with the court that Mr. Briscoe did not commit gross misconduct. I therefore join Parts I and II.A of the opinion for the court. I also agree with the court‘s decision to consider Mr. Briscoe‘s belated claim that he did not commit simple misconduct. Supra at 15-17. I respectfully dissent, however, from the court‘s conclusion on the merits that Mr. Briscoe did commit simple misconduct. Id. at 18-23.
As the court also acknowledges, supra at 10, a finding of misconduct requires more than “that the employer was justified in [its] decision to discharge the employee.” Tyler v. George Washington Med. Fac. Assocs., 75 A.3d 211, 214 (D.C. 2013) (internal quotation marks omitted). In addition, “[m]ore than mere negligence by an employee is required for a finding of misconduct.” Id. Rather, misconduct requires “[i]ntentionality or conscious disregard amounting to recklessness” and may be demonstrated by “intentional and substantial disregard of the employer‘s interest or of the employee‘s duties and obligations to the employer.” Id. (internal quotation marks omitted). In my view, the ALJ‘s specific findings foreclose the conclusion that Mr. Briscoe intentionally or recklessly disregarded his duties to Fort Myer. Cf. Lynch v. Masters Sec., 126 A.3d 1125, 1128-37 (D.C. 2015) (security guard who left firearm unattended in public bathroom did not engage in misconduct;
In concluding otherwise, the court describes the ALJ as having concluded that Mr. Briscoe “knew or recklessly disregarded a risk” that his conduct exceeded his authority. Supra at 19. I do not see any such explicit finding in the ALJ‘s decision, and the opinion for the court does not point to any such finding. Rather, the ALJ‘s explicit findings about Mr. Briscoe‘s mental state, noted above, in my view point in the opposite direction.
The court states that the ALJ “made clear that Mr. Briscoe ‘intentionally disregarded [his] employer‘s expectation’ and ‘understood the conduct at issue could lead to discharge.‘” Supra at 18 n.1. I disagree. In the first sentence quoted by the court, the ALJ describes the general requirements of a finding of misconduct, not Mr. Briscoe‘s particular mental state. It is true that the following sentence states the ALJ‘s conclusion that Mr. Briscoe engaged in misconduct. That sentence does not specifically state that the ALJ was finding that that Mr. Briscoe knowingly or recklessly disregarded the risk that his conduct was unauthorized. If nothing else pointed to the contrary, it would nevertheless be reasonable to believe that the ALJ
The court expresses the view that “a reviewing court cannot reasonably demand a more precise and express finding” than the ALJ provided in this case. Supra at 18 n.1. I have noted the ALJ‘s precise and express findings as to Mr. Briscoe‘s mental state, and I have tried to explain why those findings foreclose a determination of intentional or reckless misconduct. What the court relies upon is not a “precise and express” finding as to Mr. Briscoe‘s mental state, but rather two sentences in which the ALJ states the applicable legal standard and summarizes its conclusion under that standard without making any explicit finding that Mr. Briscoe acted intentionally or recklessly. The court then elevates those two sentences over the trial court‘s actual precise and express factual findings. As I will explain, in doing so, the court relies on a set of factual inferences that the ALJ never actually made and adopts what is in my view an implausible interpretation of the ALJ‘s actual findings. In my view, giving effect to the ALJ‘s “precise and express” findings supports reversal rather than affirmance.
The court concludes that the record does not support the ALJ‘s finding that Mr. Briscoe believed he could resolve the problem by directing that Ms. Ginyard be paid. Supra at 21-22. I disagree. The court‘s reasoning appears to be (1) Mr. Briscoe denied having directed that Ms. Ginyard be paid; (2) Mr. Briscoe never directly testified that he believed that he would have been authorized to do that; and (3) in the absence of such testimony, a reasonable factfinder could not infer that Mr. Briscoe believed he could direct payment to Ms. Ginyard. Id. I part company with the court on the last step of that reasoning. It seems to me that a reasonable factfinder could infer, as the ALJ did here, that although Mr. Briscoe inaccurately denied having directed that Ms. Ginyard be paid, Mr. Briscoe nevertheless had a good-faith belief that he could permissibly do so. Some of Mr. Briscoe‘s testimony spoke generally to the propriety of paying employees to solve problems: “Q Did you think that paying [Ms. Ginyard] for the shift was consistent with Fort Myer policies? A Yes. Q Why did you think it was okay to pay [Ms. Ginyard] for that shift according