                               District of Columbia
                                Court of Appeals
No. 14-AA-1086
                                                                         NOV 25 2015
JACQUELINE LYNCH,
                                          Petitioner,

       v.                                               DOES-196-13


MASTERS SECURITY,
                                          Respondent.


                       On Petition for Review of a Decision of the
                           Office of Administrative Hearings

       BEFORE: Glickman and Thompson, Associate Judges; and Pryor, Senior Judge.

                                    JUDGMENT

               This case was submitted to the court on the transcript of record, the briefs,
and without presentation of oral argument. On consideration whereof, and as set forth in
the opinion filed this date, it is now hereby

               ORDERED and ADJUDGED that the determination that appellant was
disqualified from receiving unemployment benefits is reversed.

                                          For the Court:




Dated: November 25, 2015.

Opinion by Associate Judge Phyllis D. Thompson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

            DISTRICT OF COLUMBIA COURT OF APPEALS

                               No. 14-AA-1086
                                                                    11/25/15

                       JACQUELINE LYNCH, PETITIONER,

                                      V.

                       MASTERS SECURITY, RESPONDENT.

                        On Petition for Review from the
                       Office of Administrative Hearings
                                (DOES 196-13)


(Submitted October 16, 2015                       Decided November 25, 2015)

     Drake Hagner and Jonathan Levy, Legal Aid Society of the District of
Columbia, were on the brief for petitioner.
      Edward R. Noonan and Jeffrey P. Brundage were on the brief for
respondent.
      Before GLICKMAN and THOMPSON, Associate Judges, and PRYOR, Senior
Judge.


      THOMPSON, Associate Judge:    This unemployment compensation matter is

before the court again after a remand order in which we directed the Office of

Administrative Hearings (“OAH”) to consider, on the existing record, whether

respondent Masters Security (the “Employer”) proved the following by a
                                        2

preponderance of the evidence with respect to the conduct that led the Employer to

terminate petitioner Jacqueline Lynch from her job as an armed security guard:



            [That] leaving her weapon in a publicly accessible
            place[,] . . . is the kind of gross negligence that we have
            equated with intentionality due to the serious harm that
            could ensue[;] that is, whether the stated act constitutes
            highly unreasonable conduct, involving an extreme
            departure from ordinary care, in a situation where a high
            degree of danger is apparent.



Lynch v. Masters Security, 93 A.3d 668, 677 (D.C. 2014) (“Lynch I”) (internal

quotation marks omitted). In an August 29, 2014, Final Order after Remand, the

OAH Administrative Law Judge (“ALJ”) found that the record establishes that

petitioner “committed an act of gross negligence in leaving a gun in a public

restroom,” that she was discharged for gross misconduct, and that she therefore is

disqualified from receiving unemployment benefits.       Petitioner challenges that

ruling, arguing that her negligent conduct, though regrettable and dangerous, as a

matter of law did not amount to gross negligence or to misconduct that disqualified

her for unemployment benefits.




      We agree with petitioner and therefore reverse the OAH ruling. As we

explain more fully below, in light of our prior case law, several factors make a
                                         3

conclusion of “misconduct” unwarranted here: (1) as we observed in Lynch I,

petitioner “had not violated a company rule regarding the handling of her firearm,”

id. at 670; (2) the ALJ found that petitioner did not intentionally leave her firearm

in the restroom; (3) the ALJ did not find that petitioner exhibited lack of concern

for the safety of others (and there was evidence, credited by the ALJ, that

petitioner did demonstrate such concern); (4) other security guards at the worksite

had left their firearms in a public restroom (suggesting that such negligence is not

extraordinary); and (5) those errant security guards were not terminated for that

conduct, and there is nothing else in the record that supports an inference or a

concern that petitioner did something that she had reason to know would result in

her termination and (possible) qualification for unemployment benefits.




                                         I.



      As recounted in Lynch I and briefly summarized here, petitioner worked for

the Employer as a front lobby guard at the headquarters building of the United

States Department of Health and Human Services (“HHS”) headquarters. In that

capacity, she carried a firearm issued by the Employer. January 14, 2013, was

petitioner‟s first day back at work after taking a period of leave to care for her

ailing mother. Petitioner‟s shift began at 8:00 a.m., but she arrived at work about
                                          4

five minutes early, signed out her company-issued firearm, and then, shortly before

reporting to her post in the front lobby, went to use a publicly accessible restroom

located in a corridor behind the lobby.1 When she entered a restroom stall, she

removed her firearm from its holster, placing it on the shelf over the toilet paper

dispenser in the stall. She explained at the hearing that this was her custom, and

that of her female co-workers, because it was difficult for them as women to sit to

use the toilet with a gun in the holster. Petitioner also explained that her practice

was not to remove her entire gun belt and hang it on the door of the stall (she

testified that most of the stall doors have no hooks) or place it on the floor, because

either option would create an unsafe situation; as the ALJ found, petitioner was

“concerned that someone could grab the gun from the outside of the stall” or that

someone could reach under the stall wall to grab the belt and weapon from the

floor.

         On the morning in question, when petitioner exited the restroom stall, she

failed to re-holster her firearm, instead leaving it on the shelf inside the stall.

Minutes later, a fellow armed security guard, Irene Burton, entered the same stall,


         1
           The ALJ found in the Final Order on Remand that “[a]nyone in the
building who had passed through the security checkpoint had access to the rest
room [which was located behind the lobby in a corridor], the door to which could
not be seen from the security checkpoint.” Petitioner testified that the location of
the restroom is such that when members of the public are in the building, “they
don‟t even see that restroom.”
                                          5

noticed the firearm, and gave it to petitioner‟s supervisor, Captain Timothy Nelson.

Captain Nelson subsequently identified the firearm as the one petitioner had signed

out, returned the weapon to her, and instructed her to return to her post. Petitioner

explained to Captain Nelson that she had a lot on her mind and was distracted with

worry about her ill mother.2 She also explained, and the ALJ found on remand,

that she was “in the habit of checking to see that she had re-holstered her weapon

before she left the rest room stall, but she failed to do so on this occasion” because

she was distracted. When Captain Nelson‟s superiors were notified of the incident,

they initially instructed him to send petitioner home; later the same day, appellant

was terminated for leaving her loaded weapon in a restroom.



      A Department of Employment Services (“DOES”) claims examiner

thereafter denied petitioner‟s claim for unemployment benefits on the ground that

she was terminated for gross misconduct. At the hearing on petitioner‟s appeal of

that determination, Burton testified that she, too, had once left her firearm in a

restroom at the HHS building but was not terminated.3            Petitioner similarly



      2
          The ALJ found that petitioner was worried “about whether she had made
the right decision in agreeing to her mother‟s request to return home to live alone.”
      3
         Petitioner was the one who found the gun in the restroom and returned it
to Burton. As the ALJ found, petitioner “did not report the incident, and [the]
                                                                        (continued…)
                                          6

testified, without contradiction, that other security guards at the site had left their

guns in restrooms but had not been terminated.4



      In a Final Order dated March 11, 2013, the OAH ALJ ruled that petitioner

could not be denied benefits based on a rule violation (there was no evidence that

petitioner violated a company policy regarding firearms), but found that

petitioner‟s act of leaving her firearm in the restroom for (what the ALJ found was)

fifteen minutes constituted gross misconduct that disqualified her from receiving

unemployment benefits.         The ALJ also denied petitioner‟s motion for

reconsideration, in which she argued that her conduct could not constitute gross

misconduct because it was unintentional. The ALJ found that petitioner‟s decision

to report to work while distracted was “consciously reckless” and, therefore,

amounted to gross misconduct.

(…continued)
officer was not disciplined.” The ALJ further found that the “Employer did not
consistently enforce any policy regarding leaving a handgun in a restroom.”
      4
           During questioning by the ALJ about what she would do if she found a
fellow security officer‟s weapon in a restroom, petitioner testified that “[i]f I found
somebody else‟s weapon, I would have secured it, . . . found the person who left it,
pulled them [aside] and whispered . . . where I had [put] it[,] . . . and ma[d]e sure
that they have it on the job for the next day.” She added, in response to a cross-
examination question about whether the proper procedure would be to turn the
weapon in to Captain Nelson, that she and fellow officers “look out for one
another, whether you say it is a proper procedure or not. . . . I‟m going to make
sure that a person has their job the next day.”
                                         7



      This court reversed the ALJ‟s ruling because it was premised on a reason

(reporting to work while distracted) that was not the Employer‟s stated reason for

terminating petitioner. Lynch I, 93 A.3d at 677. We remanded the matter to the

OAH, instructing the ALJ to consider the issue described in the introductory

paragraph above.5



      On remand, the ALJ found that petitioner‟s leaving the gun in the restroom,

conduct that the ALJ found was “not fleeting” and that did not “self-correct,” was

misconduct within the meaning of the Act and was “sufficiently egregious” to take

petitioner out of the protection of the Unemployment Compensation Act‟s

humanitarian goals and “to require a finding of gross misconduct.” The ALJ found

that petitioner‟s “negligence shows substantial disregard sufficient to find

misconduct not because of recurrence or evil design, but because she, an

experienced security officer licensed to carry and use a gun, left a loaded 9 mm

handgun unattended in a public space that she was employed to protect.” The ALJ

      5
          The Employer argues that this court concluded in Lynch I that petitioner‟s
conduct constituted misconduct and remanded the matter “solely for a
determination as to whether that misconduct was so egregious as [to] equate to
intentionality” and thus gross (rather than simple) misconduct. That argument is
incorrect; Lynch I left open the question of misconduct vel non. It is, of course,
“for this court to construe its own mandate[.]” In re Sanford Fork & Tool Co., 160
U.S. 247, 256 (1895).
                                          8

found that as a professional licensed to carry a firearm, petitioner “was more than

ordinarily aware of a gun‟s . . . destructive ability.” The ALJ emphasized that

petitioner had just returned from a leave of absence, and that “[s]uch an absence

could reasonably take any employee out of his or her normal routine,” a

circumstance that “should, in a seasoned professional, have resulted in a

heightened awareness of the dangers inherent in carrying a firearm.” Instead, the

ALJ found petitioner “disregarded that danger” by failing to pick up her weapon

and check for it when leaving the restroom, thereby “creat[ing] a highly dangerous

situation for a quarter of an hour.”



      The ALJ found “nothing in the record to suggest that [petitioner] placed her

loaded gun on the shelf with the intent to leave it behind[,]” but reasoned that “a

lack of intentionality is not the end of [the] analysis.” Citing Badawi v. Hawk One

Sec., Inc., 21 A.3d 607, 614 (D.C. 2011), the ALJ further reasoned that it was

appropriate to consider whether petitioner “„proffer[ed] evidence suggesting that

[her] actions were sufficiently excusable to negate willfulness or deliberateness,‟”

i.e., a “good reason for what might otherwise be misconduct.” Noting petitioner‟s

explanation that she was distracted with personal problems at home, the ALJ did

“not find this reason to be sufficiently excusable as to negate [petitioner‟s] reckless

and conscious disregard of the harm to Employer‟s interests of failing to remove
                                         9

her loaded weapon from an unsecured and publicly accessible bathroom.” This

putative mitigating factor, the ALJ concluded, “does not excuse creating a highly

dangerous, in fact, potentially deadly situation in her workplace” that “directly

undercut the purpose of the Employer‟s presence at HHS: to maintain safety in the

building[.]” Finally, the ALJ observed that although petitioner‟s conduct was “not

malicious or intentional,” it “strains credulity to think such an immediate threat to

the physical safety of those in the workplace caused by a claimant‟s disregard of

her primary responsibility as a security guard would constitute anything less than

misconduct[.]” Accordingly, the ALJ ruled that petitioner “remains disqualified

from receiving [unemployment] benefits.” This petition for review followed.



                                         II.



      Under the Unemployment Compensation Act (“the Act”), a terminated

employee is disqualified from receiving unemployment benefits if termination was

the result of misconduct.       D.C. Code § 51-110(b) (2012 Repl.).        The Act

recognizes two categories of misconduct: (i) gross and (ii) “other than gross,”

generally referred to as “simple misconduct.”       The implementing regulations

define “gross misconduct” as:
                                         10

             [A]n act which deliberately or willfully violates the
             employer‟s rules, deliberately or willfully threatens or
             violates the employer‟s interests, shows a repeated
             disregard for the employee‟s obligation to the employer,
             or disregards standards of behavior which an employer
             has a right to expect of its employee.


7 DCMR § 312.3. Simple misconduct, on the other hand, is defined as:


             An act or omission by an employee which constitutes a
             breach of the employee‟s duties or obligations to the
             employer, a breach of the employment agreement or
             contract, or which adversely affects a material employer
             interest. The term “other than gross misconduct” shall
             include those acts where the severity, degree, or other
             mitigating circumstances do not support a finding of
             gross misconduct.


7 DCMR § 312.5. If the employer asserts that misconduct was the basis for the

employee‟s termination, the employer carries the burden of proving such

misconduct. See Amegashie v. CCA of Tennessee, 957 A.2d 584, 587 (D.C. 2008);

see also D.C. Code § 51-110(b)(1).       “The fact that an employee‟s discharge

appears reasonable from the employer‟s perspective does not necessarily mean that

the employee engaged in misconduct.” Washington Times v. District of Columbia

Dep’t of Emp’t Servs., 724 A.2d 1212, 1218 (D.C. 1999).



      The scope of our review in unemployment compensation matters is limited,

and, in general, if the ALJ‟s findings of fact are supported by substantial evidence,
                                         11

and her conclusions flow rationally from these findings, we must affirm OAH‟s

decision.   See Bowman-Cook v. WMATA, 16 A.3d 130, 133 (D.C. 2011).

However, we review questions of whether an employee‟s actions constituted

misconduct de novo: “[w]hether a fired employee‟s actions constituted misconduct,

gross or simple, is a legal question.” Gilmore v. Atlantic Servs. Grp., 17 A.3d 558,

562 (D.C. 2011) (internal quotation marks omitted).         And while we “accord

appropriate weight to the interpretation of a statute by the agency which is charged

with its enforcement, and which therefore ordinarily has specialized expertise, . . .

OAH is vested with the responsibility for deciding administrative appeals

involving a substantial number of different agencies.” District of Columbia Office

of Tax & Revenue v. BAE Sys. Enter. Sys., 56 A.3d 477, 480 (D.C. 2012) (internal

quotation marks omitted).     “Accordingly, OAH does not have „subject matter

expertise‟ that would warrant deference to OAH‟s determination” to whether the

conduct that triggered an employee‟s termination was grossly negligent or

constituted misconduct within the meaning of the Act. Id.




                                        III.



      To reiterate, we remanded this matter to OAH
                                        12


            with instructions that the ALJ consider whether the
            existing record reveals that [the Employer] proved by a
            preponderance of the evidence that [petitioner‟s] act of
            leaving her weapon in a publicly accessible place . . . is
            the kind of gross negligence that we have equated with
            intentionality due to the serious harm that could ensue,
            that is, whether the stated act constitutes highly
            unreasonable conduct, involving an extreme departure
            from ordinary care, in a situation where a high degree of
            danger is apparent.


Lynch I, 93 A.3d at 677 (internal quotation marks omitted). In the Final Order

after Remand, the ALJ repeatedly emphasized the serious harm and high degree of

danger that could have ensued from petitioner‟s conduct and characterized the

conduct as egregious, but did not expressly find that petitioner‟s conduct amounted

to an “extreme departure from ordinary care.”       Instead, the ALJ focused on

petitioner‟s “substantial disregard” of her primary responsibility as a security

guard, on the need for petitioner to have a “heightened awareness of the dangers

inherent in carrying a firearm,” and on whether petitioner‟s conduct was

“sufficiently excusable to negate willfulness or deliberateness.” We conclude that

the ALJ‟s conclusion about “substantial disregard” does not flow rationally from

her findings of fact; that the ALJ was understandably influenced by, but too

narrowly focused on, the danger posed by petitioner‟s conduct; and that the ALJ

veered off of the mandated course of considering whether petitioner‟s conduct
                                         13

involved an extreme departure from ordinary care that can be equated with

intentionality. We address each of these points in turn.



                                         A.



      This court has held that “intentionality or its equivalent (e.g., conscious

indifference to, or reckless disregard of, the employee‟s obligations or the

employer‟s interest) is an element of misconduct of any kind.” Hamilton v. Hojeij

Branded Food, Inc., 41 A.3d 464, 476 (D.C. 2012).6 In this case, having accepted

that petitioner‟s conduct of leaving the restroom without her firearm was “not


      6
           See also Scott v. Behav. Res. Assocs., 43 A.3d 925, 931 (D.C. 2012)
(“intentionality or its equivalent (e.g., conscious indifference to, or reckless
disregard of, the employee‟s obligations or the employer‟s interest) is an element
of simple misconduct as well.”) (internal quotation marks omitted); Bowman-Cook,
16 A.3d at 135 (“[I]mplicit in the definition of „misconduct‟ is that the employee
intentionally disregarded the employer‟s expectations for performance.”) (internal
quotation marks omitted) (emphasis in original); Hickey v. Bomers, 28 A.3d 1119,
1129 (D.C. 2011) (same); Chase v. District of Columbia Dep’t of Emp’t Servs.,
804 A.2d 1119, 1123 (D.C. 2002) (same).

       We have held that although, grammatically, it may be argued whether the
phrase “deliberately or willfully” in the regulation (7 DCMR § 312.3) defining
“gross misconduct” applies to “disregard” of “the employee‟s obligation to the
employer” or of the “standards of behavior which an employer has a right to expect
of its employee,” “the word „disregard‟ carries within it the same [deliberately or
willfully] requirement[.]” Larry v. Nat’l Rehab. Hosp., 973 A.2d 180, 183 (D.C.
2009) (some internal quotation marks omitted); see also Capitol Ent. Servs., Inc. v.
McCormick, 25 A.3d 19, 24 (D.C. 2011).
                                          14

malicious or intentional,” and was “not because of recurrence or evil design,” and

that “nothing in the record . . . suggest[s] that [petitioner] placed her loaded gun on

the shelf with the intent to leave it behind,” the ALJ did not go on to explain why

she (implicitly) concluded that the conduct was the equivalent of intentional. That

is, the ALJ did not explain how she concluded that petitioner acted with conscious

indifference toward, or with reckless disregard for, her obligations to the

Employer.



      “Conscious indifference” means “a deliberate lack of interest in or concern.”

Black‟s Law Dictionary 891 (10th ed. 2009). “Recklessness” is a “state of mind in

which a person does not care about the consequences of his or her actions.” Id. at

1462. It requires a “„choice of a course of action.‟” In re Romansky, 825 A.2d

311, 316 (D.C. 2003) (quoting 57 Am. Jur. 2d Negligence § 302). To “disregard”

is to “ignore or treat as unimportant.” Black‟s Law Dictionary 573.7



      7
          These or substantially similar definitions are reflected in case law from
many courts and in many contexts. See, e.g., United States v. Kalu, 791 F.3d 1194,
1209 (10th Cir. 2015) (“[To] act with „reckless disregard‟ means to be aware of,
but consciously and carelessly ignore, facts and circumstances.”); United States v.
Jones, 735 F.2d 785, 790 (4th Cir. 1984) (“Reckless disregard means the closing of
the eyes to or deliberate indifference toward the requirements of a mandatory
safety standard, which standard the defendant should have known and had reason
to know at the time of the violation.”) (internal quotation marks omitted); Schwartz
v. Sears, Roebuck & Co., 669 F.2d 1091, 1903 n.2 (5th Cir. 1982) (“„Heedless and
                                                                         (continued…)
                                          15



      The ALJ found that petitioner was “concerned that someone could grab the

gun from the outside of the stall” if she placed the gun on the stall door while using

the restroom. Having so found, and having made no other finding that appellant

exhibited inadequate concern about the safe handling of weapons,8 the ALJ could

not reasonably conclude that, as the above definitions require, petitioner exhibited

(…continued)
reckless disregard‟ means more than momentary thoughtlessness, inadvert[e]nce,
or error of judgment. It means such an entire want of care as to indicate that the
act or omission in question was the result of conscious indifference to the rights,
welfare, or safety of the persons affected by it.”); Phillips v. C.R. Bard, Inc., No.
3:12-cv-00344-RCJ-WCG, 2014 U.S. Dist. WL 7177256, at *11 (D. Nev. Dec. 16,
2014) (“„Conscious disregard‟ means the knowledge of the probable harmful
consequences of a wrongful act and a willful and deliberate failure to act to avoid
those consequences.”); State v. Consaul, 332 P.3d 850, 857 (N.M. 2014)
(“[R]eckless disregard means the defendant „knew or should have known the
defendant‟s conduct created a substantial and foreseeable risk, the defendant
disregarded that risk and the defendant was wholly indifferent to the consequences
of the conduct.”); Simon v. San Paolo U.S. Holding Co., Inc., 113 P.3d 63, 76 (Cal.
2005) (“[C]onscious disregard means „that the defendant was aware of the
probable dangerous consequences of his conduct, and that he wilfully and
deliberately failed to avoid those consequences.‟”); State v. Carpenter, 378 P.2d
188, 190 (Idaho 1963) (construing the statutory term “reckless disregard” to mean
“„an act or conduct destitute of heed or concern for consequences.‟”).
      8
          The ALJ did not, for example, draw from petitioner‟s testimony described
in note 4 supra — that if petitioner found a fellow security officer‟s weapon in the
bathroom, she would secure and arrange for the return of the weapon, but would
not report the incident to her superiors, so as to “make sure that [the fellow security
guard] has their job the next day” — an inference that petitioner was inadequately
heedful of the safety of persons who might be injured as a result of such a fellow
officer‟s continuation on the job after such negligence.
                                         16

a “deliberate lack of interest in or concern” about her responsibilities as a security

officer, or that she “ignore[d] or treat[ed] as unimportant” the need to handle her

weapon safely. For that reason, we are constrained to conclude that the ALJ‟s

conclusion that petitioner‟s conduct “shows substantial disregard sufficient to find

misconduct” does not flow rationally from the Findings of Fact.9



                                         B.



      We explained in Lynch I that “gross negligence or reckless disregard of the

consequences, . . . is typified by highly unreasonable conduct, involving an

extreme departure from ordinary care, in a situation where a high degree of danger

      9
          We reasoned in Capitol Entertainment that an employee might exhibit
“negligence in such degree or recurrence as to manifest…an intentional and
substantial disregard of the employer‟s interest or of the employee‟s duties and
obligations to the employer[,]” 25 A.3d at 28 (internal quotations omitted) (quoting
Hickenbottom v. District of Columbia Unemployment Comp. Bd., 273 A.2d 475,
477-78 (D.C. 1971)). The only example we provided was a summary of the facts
involved in a Maine case, which we described as addressing a “tractor-trailer
driver‟s aggravated negligence in ramming a vehicle she was attempting to pass on
the highway, causing personal injury to the vehicle‟s driver and extensive property
damage.” Id. at 28 n.37 (citing Forbes-Lilley v. Maine Unemployment Ins.
Comm’n, 643 A.2d 377 (Me. 1994)). That summary demonstrates that the critical
fact about the conduct involved there was that the tractor-trailer driver was
deliberately attempting to pass the other vehicle, conduct that presents some
danger. The example does not at all suggest that petitioner‟s undisputedly
unintentional conduct of forgetting to retrieve her gun from the shelf in the
restroom stall amounts to substantial disregard of the employer‟s interest.
                                         17

is apparent.” 93 A.3d at 675 (quoting Hickenbottom, 273 A.2d at 477-78 (internal

quotation marks omitted). Thus, as petitioner correctly argues, we articulated a

two-factor test, focusing on whether there was (1) an extreme departure from

ordinary care and (2) a high degree of danger. We agree with petitioner that the

ALJ appears to have conflated the two factors, giving undue weight to the

(undeniable) danger posed by petitioner‟s conduct.             Yet, we conclude,

dangerousness standing alone cannot support a finding of misconduct for purposes

of the unemployment statute and regulations.10



      The history of the misconduct provisions of our unemployment statute

reveals that their purpose is to “prevent dissipation of [unemployment insurance]

funds due to disqualifying acts rather than lack of suitable job opportunity.”




      10
            In Badawi, 21 A.3d 607, where a lobby security guard unloaded his
weapon and placed the gun and bullets in a drawer while he prayed, his inattention
to his guard duties was dangerous, but not just dangerous; it also was willful and
deliberate, and thus constituted misconduct. In contrast, in Keep v. District of
Columbia Dep’t of Emp’t Servs., 461 A.2d 461 (D.C. 1983), where a babysitter
was terminated for conduct that included allowing a small child to chew on wire
garbage ties and neglecting to strap him into a stroller, we held that this
(dangerous) conduct was not “sufficiently willful to meet the statutory definition of
misconduct.” Id. at 463.
                                        18

Hickenbottom, 273 A.2d at 477;11 Jones v. District of Columbia Unemployment

Compensation Board, 395 A.2d 392, 395 (D.C. 1978) (same). Consistent with that

purpose, the types of wrongdoing encompassed in the regulatory definition of

misconduct “impute knowledge to the employee that should he proceed he will

damage some legitimate interest of the employer for which he could be

discharged.”   Capitol Entertainment, 25 A.3d at 25 (italics added; internal

quotation marks and brackets omitted). That is, the definition of misconduct,

which gives examples of disqualifying conduct that are of varying degrees of

seriousness (compare, e.g., “arson” with “repeated . . . tardiness following

warning”) focuses not on the relative blameworthiness (e.g., dangerousness) of

employee conduct, but on conduct that an employee can expect with certainty, or

can be reasonably sure, will cause him to be terminated.12 Thus, the definition of

disqualifying “misconduct” guards against an employee‟s deliberately proceeding

with such acts in order to get fired and (possibly) gain access to unemployment

compensation. That being the case, there is no sound rationale for concluding that,

      11
          We have said that Hickenbottom, which interpreted an earlier version of
our unemployment statute, “retain[s] [its] relevance.” Capitol Entertainment, 25
A.3d at 26 (internal quotation marks omitted).
      12
          This makes appropriate the mandate of 7 DCMR § 312.7 “that violation
of a rule may support a denial of benefits only if the rule was known to the
employee, reasonable, and consistently enforced.” Capitol Entertainment, 25 A.3d
at 27.
                                         19

where an employee has been negligent in handling the instruments of his work, the

high degree of danger posed by those instruments must disqualify him for

unemployment benefits, if there is no basis for “imput[ing] knowledge to the

employee that[,] should he proceed,” he is likely (or certain) to be discharged.



      For that reason, we think it relevant here that petitioner testified, and the

Employer did not disprove, that other security officers had left their weapons in

restrooms without being terminated.13 Indeed, as the ALJ found, Captain Nelson

initially returned petitioner‟s weapon to her, and when the incident was reported to

his superior, Major Battle, Battle instructed Nelson to send petitioner home for the

day while the Employer “considered what discipline to impose on her.” It thus

appears that it was unclear that petitioner would face termination for her negligent

conduct. In short, the record provides no basis for concern that petitioner would

have been motivated toward laxity in safeguarding her (dangerous) loaded firearm


      13
            In her Reply Brief, petitioner cites several news articles about police
officers in this jurisdiction, or elsewhere in the country, who left their guns in
public restrooms and who were disciplined through suspensions and remedial
training (rather than termination). Petitioner argues that the frequency of these
incidents indicates that incidents such as the one in issue here do not involve an
extreme departure from ordinary care, but instead common negligence. We do not
rely on these articles because they were not part of the OAH record, but we
acknowledge their possible relevance to whether, on the day she was discharged,
petitioner could have expected to be terminated for inadvertently leaving her
weapon in a public restroom.
                                        20

in order to trigger her termination and (possible) qualification for unemployment

benefits.



                                        C.



      The ALJ premised her ruling on the need for petitioner to have a

“heightened awareness of the dangers inherent in carrying a firearm” because of

her recent absence from work that took her “out of . . . her normal routine.” The

ALJ did not explain the basis for imposing this “heightened awareness” standard

— under which, we presume, petitioner would have had a duty to be more cautious

than her fellow security guards who had not just returned from a leave of absence

— and it appears not to be grounded in the law of this jurisdiction.14 We have said,

in other contexts involving whether a party was negligent, that “[t]his jurisdiction

does not recognize varying standards of care . . . but always requires reasonable

care to be exercised under all the circumstances.”15 The ALJ found that petitioner

deviated from a “heightened awareness” standard, but, as we explain below, did


      14
          Moreover, at least arguably, by using this standard, the ALJ once again
focused improperly on what state of mind petitioner had when she came to work.
      15
        Pannu v. Jacobson, 909 A.2d 178, 194 (D.C. 2006) (internal quotation
marks omitted).
                                         21

not adequately address what our remand order required: whether petitioner

deviated from ordinary care in a manner so egregious as to show “an intentional

and substantial disregard of the employer‟s interest or of the employee‟s duties and

obligations to the employer.” Capitol Entertainment, 25 A.3d at 28.




                                         D.



      The ALJ concluded that petitioner‟s conduct amounted to gross negligence,

i.e., “an extreme departure from ordinary care.” 16 Lynch I, 93 A.3d at 677. Yet,

gross negligence “requires such an extreme deviation from the ordinary standard of

care as to support a finding of wanton, willful and reckless disregard or conscious

indifference for the rights and safety of others[,]” Capitol Entertainment, 25 A.3d

at 28 n.36 (quoting District of Columbia v. Walker, 689 A.2d 40, 44-45 (D.C.




      16
          The ALJ also concluded that petitioner‟s “discharge resulted from her act
of gross misconduct.” But, “[i]n order to conclude that the employee engaged in
gross misconduct under our statutory scheme, the ALJ must first find that the
employee acted deliberately or willfully.” Badawi, 21 A.3d at 614; see also
Odeniran v. Hanley Wood, LLC, 985 A.2d 421, 428 (D.C. 2009) (“[T]he
requirement that the dismissed employee acted intentionally is . . . a necessary . . .
condition for a finding of gross misconduct.”).
                                          22

1997) (internal quotation marks and brackets omitted)),17 a conclusion that we have

explained above is not justified on the factual record. We have said elsewhere that

the fact that a party took steps to ensure safety and security militates against a

finding of gross negligence. See Mefford, 728 A.2d at 609.18 Here, as the ALJ

found, although petitioner negligently failed to do so on the day she was

terminated, she was “in the habit of checking to see that she had re-holstered her

weapon before she left the rest room stall.” The ALJ also credited petitioner‟s

testimony that her reason for placing her gun on the shelf above the toilet paper

dispenser was to guard against its being grabbed by someone else. In short, the

record does not support a conclusion that petitioner exhibited wanton disregard for

the safety of others.


      17
            “This [gross negligence] standard has been held to connote that the actor
has engaged in conduct so extreme as to imply some sort of bad faith.” Walker,
689 A.2d at 44; see also Mefford v. District of Columbia, 728 A.2d 607, 609 (D.C.
1999) (construing statutory term “gross negligence” to mean “a willful intent to
injure. . ., or a reckless or wanton disregard of the rights of another.”) (internal
quotation marks omitted).
      18
            See also District of Columbia v. Henderson, 710 A.2d 874, 876 (D.C.
1998) (holding that no reasonable juror could find gross negligence where the
evidence was that “[t]he evening was dark enough that other vehicles . . . had their
headlights on; [Officer] Davis went one step further and activated his high-beam
headlights. Additionally, Davis applied his brake as he entered the intersection. It
is regrettable that the officer did not avoid the crash, but his conduct simply did not
reflect „such an extreme deviation from the ordinary standard of care as to support
a finding of wanton, willful and reckless disregard or conscious indifference for the
rights and safety of others.‟”) (emphasis omitted).
                                        23



      We have explained that a “finding of gross negligence, if such standard is to

be meaningfully distinguished from simple negligence, must demand serious

aggravating factors in [a party‟s] conduct . . . beyond those necessary to establish

simple negligence in the first place.” Henderson, 710 A.2d at 877; see also Scott,

43 A.3d at 931 (“In order to demonstrate that an employee‟s actions amounted to

gross misconduct, . . . an employer must make a heightened showing of seriousness

or aggravation, lest the statutory distinction between gross and „simple‟

misconduct . . . be erased.”) (internal quotation marks omitted). “„[B]ona fide

forgetfulness,‟” though, which is what occurred here, is ordinary negligence.

Association of American R.Rs. v. Connerton, 723 A.2d 858, 862 (D.C. 1999); see

also Gonzalez v. Duncan, 551 F.3d 875, 886 n.10 (9th Cir. 2008) (forgetting to

register as a sex offender is “ordinary negligence”); Montalvo v. Williams, No. 97-

41340, 1998 U.S. App. WL 858830, at *1 (5th Cir. Nov. 20 1998) (forgetting to

give diabetic insulin injections was “merely negligent”); Hosely v. Knipp, No.

2:13-cv-00962-KJM-GGH, 2014 U.S. Dist. WL 3385187, at *10 (E.D. Cal. Jul. 10,

2014) (“There is simply no logical way around the fact that if one does not perform

a required act because the requirement is innocently or negligently erased from

one‟s consciousness for a time, the person „forgets‟ in common parlance,

negligently or without culpability.”); Luck v. Fox, No. 1:09cv335 (AJT/JFA), 2009
                                          24

U.S. Dist. WL 1172860, at *5 n.3 (E.D. Va. Apr. 28, 2009) (nurse‟s alleged three-

day failure to order antibiotics “because she forgot is at worst simple negligence,

not „gross‟ negligence.”).



       Exercising de novo review and considering the findings the ALJ made and

the inferences she drew, we cannot conclude that petitioner‟s (unquestionably

negligent) conduct involved an “extreme departure from ordinary care.”19 It was

petitioner‟s first day back at work. She went to the restroom just before her shift

started.    Thus, she had not been at work long enough to perceive that her

distraction because of concern about her mother was adversely affecting her work.

As already described, she placed her gun on the shelf in the restroom stall where

she customarily placed it in order to safeguard it against theft or mischief by a third

       19
            “Generally speaking, whether a discharged employee‟s conduct involved
gross negligence or recklessness as opposed to ordinary negligence is a question of
fact for. . .the administrative law judge to determine.” Capitol Entertainment, 25
A.3d at 28. We conclude, however, as a matter of law that the record before us
will not support a finding of gross negligence or recklessness.

       We presume that the Division of this court that remanded the matter to OAH
did so out of an abundance of caution, contemplating the possibility that, from the
existing record, the ALJ might make additional findings and draw additional
inferences bearing on whether petitioner‟s conduct could be said to have involved
an extreme departure from ordinary care (for example, an inference of the sort
described in footnote 8 supra). It appears, however, that the ALJ drew no
additional factual inferences. Thus, on the factual record as it remains, this is not a
“case that could conceivably support a finding either way.” Benjamin v.
Washington Hosp. Ctr., 6 A.3d 263, 268 (D.C. 2010).
                                        25

party. Thus, she was not “indifferent to safety.” Capitol Entertainment, 25 A.3d at

28. She also was not the first female officer to inadvertently leave her weapon in

the restroom, a fact that provides some additional support for a conclusion that her

negligence was garden-variety and ordinary. Such “ordinary negligence in failing

to perform work in accordance with the employer‟s standards, rules, or

expectations is not misconduct, gross or otherwise, within the meaning” of the Act.

Id. at 27.



                                        IV.



       For all the foregoing reasons, we are unable to sustain the ALJ‟s ruling on

remand. The record does not support that petitioner was discharged for conduct

that was misconduct for purposes of the unemployment statute and regulations.

Accordingly, the determination that she was disqualified from receiving

unemployment benefits is

                                      Reversed.
