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                DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-AA-476

                           OMAR COOPER, PETITIONER,

                                        v.

                STARBUCKS COFFEE CORPORATION, RESPONDENT.

                     On Petition for Review of a Final Order
                     of the Office of Administrative Hearings
                                  (DOES-368-15)

                (Hon. Jesse P. Goode, Administrative Law Judge)

(Submitted December 1, 2016                               Decided June 6, 2017)*

      Weyinmi Shekoni, Student Attorney (No. 14599), Sempian Sooriakumar,
Student Attorney (No. 14600), and Elliott S. Milstein, Supervising Attorney, were
on the brief for petitioner.
      Before BECKWITH and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.

      NEBEKER, Senior Judge:       Starbucks Coffee Corporation (“Starbucks”),

respondent, terminated Omar Cooper, petitioner, due to his admitted use of profane

language and alleged pushing of a co-worker, Deniene Sanders. Mr. Cooper,

      *
           The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published by direction of
the court.
                                          2

represented by student attorneys, challenges whether the Office of Administrative

Hearings (“OAH”) erred in ruling that he is ineligible for eight weeks of

unemployment compensation when the Administrative Law Judge (“ALJ”) only

relied upon hearsay evidence. Starbucks did not file a brief. We reverse and

instruct OAH to award Mr. Cooper the requested unemployment benefits.



                                        FACTS



      Based on a business decision, Starbucks‟s litigation strategy relied entirely

on the testimony of store manager Stephanie Brown and an unsigned, unsworn

letter allegedly written by Michael McDuffie, another employee. Ms. Brown‟s

testimony consisted mostly of secondhand information: Ms. Sanders notified Ms.

Brown that during the morning coffee rush in DuPont Circle Ms. Sanders poured

two espresso shots left on the bar into the sink, which caused Mr. Cooper to

exclaim “what the fuck are you doing” and push Ms. Sanders. Ms. Sanders

mistakenly believed the espresso shots had gone stale. Mr. Cooper denied pushing

Ms. Sanders, but admitted that he used a profane statement. Even though Mr.

Cooper testified that he offered to apologize to Ms. Sanders again in Ms. Brown‟s

presence, Ms. Brown testified that she did not know whether Mr. Cooper and Ms.

Sanders conversed after the incident.
                                        3

      At the request of Ms. Brown, Mr. McDuffie memorialized what he

witnessed during the incident. A photocopied version containing redactions was

entered into evidence.    Apparently, the signature of the unsworn letter was

redacted. Ms. Brown alleged that she had the original document and testified that

Mr. McDuffie signed the letter. Nonetheless, the letter as entered into evidence is

unsworn and unsigned. In sum, the letter states that Mr. Cooper used profane

language and pushed Ms. Sanders.1



      Following the conclusion of Starbucks‟s case-in-chief, Mr. Cooper moved

for a “directed verdict” because Starbucks only put forth uncorroborated hearsay

evidence, which is insufficient to constitute substantial evidence. The ALJ denied

the motion.


      Mr. Cooper testified that he has consistently denied the alleged pushing.

The only indication that Mr. Cooper was inconsistent in his innocence was his

termination letter stating he pushed Ms. Sanders.2      To this end, Mr. Cooper


      1
         Mr. Cooper takes issue with the discrepancy between the profane language
attributed to him by the note—“What the fuck are you doing”—and Ms. Brown‟s
testimony of Ms. Sanders‟s verbal report—“What the fuck!”. The distinction for
purposes of this appeal is immaterial.
      2
       The termination letter was entered into evidence but was not relied upon
by OAH. There is no indication as to who prepared the letter for Starbucks.
                                         4

testified that although he left the employee statement section blank and signed the

letter, he did not agree with its contents. At that time, Mr. Cooper believed

objecting to the letter‟s contents was futile because Starbucks had already informed

him of its decision to terminate and he felt he had no other choice. Ms. Brown

testified that Mr. Cooper consistently denied pushing Ms. Sanders.



      To find that Starbucks‟s hearsay evidence was corroborated, the ALJ used

Mr. Cooper‟s apology to Ms. Sanders. The ALJ asked why he apologized if

profane language was ordinary in the workplace and Mr. Cooper responded that

there had never been any animosity between them and that he felt bad because Ms.

Sanders informed him that she was only trying to help and because she is old

enough to be his mother. Mr. Cooper was already on his way to the employees-

only area where he saw Ms. Sanders and apologized. Because profane language

was commonplace at this Starbucks location, the ALJ concluded that an apology

would be unnecessary unless the push actually occurred.



                                   ANALYSIS



      We review decisions of OAH to determine if they are arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with the law.        OAH‟s
                                          5

decision will be affirmed if “(1) OAH made findings of fact on each materially

contested issue of fact, (2) substantial evidence supports each finding, and (3)

OAH‟s conclusions flow rationally from its findings of fact.”           Rodriguez v.

Filene’s Basement Inc., 905 A.2d 177, 180-81 (D.C. 2006). “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,” even if this court would

have reached a different result. R.B. v. United States Envtl. Prot. Agency, 31 A.3d

458, 462 (D.C. 2011). To successfully prevent a former employee from collecting

unemployment benefits due to misconduct, “[t]he party alleging misconduct shall”

carry the burden to present sufficient evidence. 7 DCMR § 312.2 (2016).



      Hearsay may constitute substantial evidence in administrative proceedings,

with the weight, ranging from minimal to substantial, being accorded after a “case-

by-case evaluation of the reliability and the probative value of the evidence.”

Compton v. District of Columbia Bd. of Psychology, 858 A.2d 470, 478 (D.C.

2004). Findings and conclusions drawn solely from such evidence, however, “are

subject to exacting scrutiny.” R.B., 31 A.3d at 463. Further, “in an appeal hearing,

the persons who . . . issued . . . statements alleging misconduct shall be present and

available for questioning by the adverse party,” § 312.9, and “prior statements or

written documents, in the absence of other reliable corroborating evidence, shall
                                        6

not constitute evidence sufficient to support a finding of misconduct by [OAH],”

§ 312.10. Stated differently, to use hearsay evidence in a misconduct hearing, the

unemployment benefit regulations “are even more demanding than” the Compton

factors because the regulations place emphasis “on live testimony by the persons

who have alleged misconduct and on the discharged employee‟s opportunity to

question them.” See R.B., 31 A.3d at 463 (citing Compton, 858 A.2d at 477).



      Mr. Cooper plainly prevails pursuant to OAH‟s own regulations. At the start

of the hearing, the ALJ reminded Starbucks that it carried the burden of proof and

the obligation to proceed first. Starbucks only called one witness, Ms. Brown. She

neither witnessed the alleged incident nor made the allegations of misconduct. In

other words, Starbucks only presented “prior statements or written documents,”

which “shall not constitute sufficient evidence” absent corroborating evidence.

§ 312.10.



      There are only two pieces of evidence that had the potential to be

corroborating evidence: (1) the termination letter and (2) Mr. Cooper‟s testimony.

Only the latter was relied upon, but neither provides a basis to find substantial

evidence.
                                         7

      Even if the ALJ had chosen to rely on the termination letter, the hearsay

evidence would not be corroborated.       The termination letter is itself hearsay

evidence. This court has adopted Federal Rule of Evidence 801 (d)(2), Johnson v.

Leuthongchak, 772 A.2d 249, 250 (D.C. 2001), which makes a statement that is

“adopted or believed to be true” by a party opponent not hearsay, as opposed to

statements that remain hearsay but are excepted. Compare Fed. R. Evid. 801

(d)(2)(B), with Rules 803 & 804. Seemingly, Mr. Cooper adopted the statement

that he pushed Ms. Sanders when he signed the termination letter.3



      It is, however, not that simple for a statement to be adopted by a party

opponent.    In order for a statement to be adopted, specifically through an

admission by silence, it must be reasonable to conclude that in light of all the

surrounding facts and circumstances that the party opponent actually heard,

understood, and acquiesced to the statement after having an opportunity to deny it.

Brown v. United States, 464 A.2d 120, 123-24 (D.C. 1983) (stating exemption

applies “if it clearly appears that the [party opponent] . . . unambiguously assented

to those statements” (internal quotations omitted)). For silence to be considered

evidence of acquiescence, it must have been “natural under the circumstances to


      3
          Mr. Cooper denied the allegation both before and after signing the
termination letter.
                                          8

object to the assertion in question.” United States v. Hale, 422 U.S. 171, 176

(1975) (“silence is commonly thought to lack probative value on the question of

whether a person has expressed tacit agreement or disagreement with

contemporaneous statements of others”).



      Here, the termination letter was prepared by Starbucks after “a recent partner

resources investigation” found that Mr. Cooper “pushed a fellow [employee]”—the

letter was merely an adoption of Ms. Sanders‟s and Mr. McDuffie‟s depiction of

the event. While it is true that Mr. Cooper left the employee statement section

blank, Mr. Cooper‟s unrebutted explanation was that he only signed the letter

because he believed he had no other choice. Indeed, right before presenting Mr.

Cooper with the termination letter, Ms. Brown informed him that Starbucks had

already decided to fire him. Other than the letter, Mr. Cooper has consistently

denied the pushing allegation, including under oath. Washington Times v. District

of Columbia Dept. of Emp’t Servs., 530 A.2d 1186, 1190 (D.C. 1987) (hereinafter

“Washington Times (1987)”) (“failure of employers to produce the witnesses who

had provided the information which was the basis of the disciplinary actions []

deprive[s] claimants of their right to effective cross-examination, and hence, []

sworn testimony offered in rebuttal [of such hearsay evidence] should have been

credited”). Based on all of the surrounding circumstances and facts, Mr. Cooper‟s
                                          9

silence was reasonable; inversely, it is unreasonable to conclude that it clearly

appears that Mr. Cooper unambiguously assented to the pushing allegation. As

such, the termination letter‟s pushing statement remains hearsay.4 Moreover, the

termination letter was founded upon the hearsay evidence that it would have

corroborated. See McLean v. District of Columbia Dept. Emp’t Servs., 506 A.2d

1135, 1137-38 (D.C. 1986) (finding letter to be hearsay that merely restated

hearsay and thus making it not corroborative). Under these circumstances, the

termination letter does not provide sufficient corroboration.



      On the critical issue whether Mr. Cooper pushed Ms. Sanders, Mr. Cooper‟s

testimony contradicted rather than corroborated Starbucks‟s hearsay evidence.

Although some of Mr. Cooper‟s testimony—such as that Mr. Cooper apologized to

Ms. Sanders—was consistent with Starbucks‟s hearsay evidence, we do not view

that testimony as providing sufficient corroboration.



      Repeatedly, this court has stated that administrative agencies “should not

rely on hearsay to refute sworn testimony, when the party relying on the hearsay is

      4
         As noted, hearsay may be introduced into evidence at administrative
hearings. This principle of law is not disturbed as we recognize that “individual
agency members are presumed capable of properly assessing the reliability and
weight of hearsay evidence.” Kopff v. District of Columbia Alcoholic Beverage
Control Bd., 381 A.2d 1372, 1385 (D.C. 1977).
                                          10

able to call the declarant to the stand.” E.g., Lim v. District of Columbia Taxicab

Comm’n, 564 A.2d 720, 725 (D.C. 1989) (citing Jadallah v. District of Columbia

Dep’t of Emp’t Servs., 476 A.2d 671, 676 (D.C. 1984) (reversing a finding of

misconduct grounded on testimony “not based upon [] personal knowledge of

events, but rather on a written statement that petitioner signed outside [the

witness‟s] presence”)). This principle is at its apex when the employer‟s case-in-

chief is solely built upon disputed hearsay evidence that is central to the allegations

of misconduct because credibility becomes the critical issue. See Compton, 858

A.2d at 476, 479-80. In such a case, the ALJ‟s ability to resolve conflicting

testimony is compromised, making the live testimony preferred. See id. at 479-80

(stating cross-examination and confrontation are likewise “all the more critical,”

but noting that after “heavily discounting the hearsay” of an un-called, available

declarant, “strong corroboration” can cause the “exclusive reliance on disputed

hearsay” to constitute substantial evidence (emphasis added)).



      In Compton, the petitioner provided sworn testimony to rebut the

government‟s hearsay evidence—deposition testimony—that he had engaged in

professional misconduct.     Id. at 473 (doctor-patient sexual misconduct).       The

government attempted to corroborate the hearsay by soliciting testimony from both

of petitioner‟s medical practice partners and through limited testimony of the
                                        11

deposed. Petitioner‟s partners testified that the patient had discussed her sexual

misconduct allegations with them. Id. After this court examined the corroborative

evidence, it discovered that the government‟s hearsay evidence was “given greater

weight warranted.” Id. at 479; see also id. at 479-80 (finding ALJ could not

resolve the “conflicting testimony” in favor of the government absent “some

corroboration”). Similarly, in Washington Times v. District of Columbia Dept. of

Emp’t Servs., 724 A.2d 1212 (D.C. 1999), the employer only called one witness,

Kenneth McIntyre, who was an editor with general oversight responsibility of all

Metro desk employees. 724 A.2d at 1214. McIntyre, however, did not directly

supervise the petitioner, and his testimony was entirely based on information

provided to him from those who had direct contact with petitioner. Id. In other

words, the employer only presented hearsay evidence. Petitioner took the stand

and told his story of the circumstances that lead to his termination. Id. at 1215.

This court, citing § 312.10, found that McIntyre was not in a position to contradict

the testimony the petitioner who was present at the occurrence of the alleged

misconduct and ruled that McIntyre‟s testimony did not corroborate the prior

statements or written documents that constituted an “overwhelming majority” of

the employer‟s evidence. See id. at 1218, 1220 (internal quotations omitted).
                                        12

      Ms. Brown is not in a position to contradict Mr. Cooper‟s testimony that

impeached Starbucks‟s evidence because she did not observe the alleged incident

of misconduct. Cf. General Ry. Signal Co. v. District Unemployment Comp. Bd.,

354 A.2d 529, 532 (D.C. 1976) (unless person who answered questionnaires is

available for cross-examination, documents are “„not reliable, probative, and

substantial evidence‟” in administrative “proceeding where impeaching evidence

has been introduced”). Moreover, Starbucks was the party relying on the hearsay

evidence and was in a position to call the declarants. See Jadallah, 476 A.2d at

676 (stating hearsay cannot effectively refute “the direct sworn testimony of a

witness on a crucial fact . . . when the party relying on such statements [was] in a

position to call the declarant”).      As such, Starbucks‟s litigation strategy

compromised the ALJ‟s ability to resolve the conflicting testimony and the sworn

testimony from the witness present at the occurrence of the alleged incident—Mr.

Cooper‟s testimony—is preferred. See Washington Times (1987), 530 A.2d at

1190 (“sworn testimony offered in rebuttal should have been credited”).

Consequently, Starbucks‟s hearsay evidence is not strongly corroborated and

carries minimal weight. See Compton, 858 A.2d at 478, 480.5 Therefore, the


      5
          Hearsay evidence was strongly corroborated in James v. District of
Columbia Dept. of Emp’t Servs., 632 A.2d 395 (D.C. 1993). In James, the
employer called petitioner‟s supervisor to testify regarding the twenty-two
disciplinary action reports contained in petitioner‟s employment record. Id. at 396-
                                                                      (continued…)
                                         13

record lacks substantial evidence to support a finding of misconduct to disqualify

Mr. Cooper from unemployment benefits.



      Because Starbucks decided it would only call Ms. Brown as a witness,

OAH‟s decision is reversed and the matter is remanded so that the ALJ may order

the benefits sought as it would not be “just [under] the circumstances” for

Starbucks to receive a further opportunity to expand on its previous position. D.C.

Code § 17-306 (2012).



                                       So ordered.



(…continued)
97. Having only prepared three of these reports, the supervisor discussed the
contents of the additional reports with the petitioner. Id. at 397. The appeals
examiner predominantly based her decision to deny benefits on these reports. Id.
As a result, this court had to decide whether the hearsay evidence constituted
substantial evidence. Id. Substantial evidence existed due to a litany of factors
evincing strong corroboration: (1) the reports were regularly completed as part of
employee discipline procedure; (2) numerous supervisors completed the reports;
(3) the reports were completed contemporaneously with the incidents; (4) the
number of reports; (5) the reports, importantly, demonstrated a consistent pattern
(citing Simmons v. Police & Firefighters’ Ret. & Relief Bd., 478 A.2d 1093, 1095
(D.C. 1984)); (6) the testifying supervisor had some personal knowledge; and,
similarly, (7) the testifying supervisor discussed most of the reports with petitioner
and stated that petitioner never voiced any objection to the contents of the reports
nor did petitioner react in any way that would cast doubt on the reliability of
reports. See id. at 398. While these factors are not exclusive or present in every
unemployment benefits case, similar factors are certainly not present here.
