The Petitioner, Joyce Benjamin, was employed by the Washington Hospital Center as a Unit Clerk from August 2002 until September 11, 2008, when she was fired. Ms. Benjamin's job as a Unit Clerk included the performance of a variety of clerical and/or administrative functions for the Hospital. She was essentially terminated for chronic lateness, in violation of the Hospital's policy against repeated tardiness. Washington Hospital Center defined excessive absenteeism or lateness as a failure to arrive at work within seven minutes of your scheduled start time, more than six times during any twelve (12) month period. To enforce this regulation, there was a three step disciplinary process: the first violation resulted in a written warning; a second violation was cause for suspension; and the third instance would lead to termination.

There is no question that between April 2007 and September 2008, Ms. Benjamin received disciplinary action on three occasions regarding her excessive lateness. In fact, instead of being terminated upon the third instance, she entered into a “last chance agreement,” but had additional excessive tardiness, which then resulted in her termination.

Once fired, she applied to the Department of Employment Services (DOES) for unemployment compensation benefits. The assigned claims examiner denied her compensation on the basis that she had been discharged for misconduct. However, the Court noted that the claims examiner did not expressly state that Ms. Benjamin has been discharged for gross misconduct, even though, the examiner cited the statutory provision that limits unemployement benefits when an employee is terminated for gross misconduct. DC Code §51-110(b)(1). Ms. Benjamin appealed the DOES decision to OAH where an Administrative Law Judge affirmed the claims examiner decision finding that the employer had proven that Ms. Benjamin engaged in misconduct. The ALJ likewise did not make a specific finding that Ms. Benjamin's actions amounted to gross misconduct.

The Court of Appeals has emphasized the important distinction between gross and simple misconduct in Odeniran v. Hanley Wood, LLC, 955 A.2d 421 (D.C. 2009),“being discharged for gross misconduct has a different impact on employment benefits than being discharged for simple misconduct.” The Court also noted that gross misconduct involves an employee's misdeeds being serious. The Court then noted the case of Doyle v. NAI Personnel, Inc., 991 A.2d 1181 (D.C. 2010), where the employee's failure to notify her employer, a temp agency, that her current placement assignment had ended, fell short of gross misconduct as it was lacking in terms of seriousness or egregiousness necessary for such a finding.

The Court noted that Ms. Benjamin was apparently tardy on 24 separate occasions during period of time in question. It noted that attendance at work is an obligation which every employee owes to his or her employer—poor attendance, especially, after one or more warnings can constitute misconduct sufficient to justify the denial of a claim for unemployment benefits. Shepherd v. The District of Columbia Dep't of Emp. Svcs., 514 A.2d 1184 (D.C. 1986).

The Court stated that even if the employee's conduct had explicitly been determined to fall within the definition of gross misconduct, it is not sufficient for the denial of benefits unless it is also deemed willful or deliberate. Therefore, the Court had no choice but to remand the matter back to OAH to make specific findings as to whether Ms. Benjamin had committed gross misconduct and whether that gross misconduct was willful and deliberate as required the applicable regulation. 7 DCMR §312.4(k).]