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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-AA-517

                         JACQUELINE LYNCH, PETITIONER,

                                       V.

                         MASTERS SECURITY, RESPONDENT.

                   On Petition for Review of a Decision of the
             District of Columbia Office of Administrative Hearings
                                 (DOES-196-13)

(Argued April 10, 2014                                   Decided June 26, 2014)

       Drake Hagner, with whom Jennifer Mezey and John C. Keeney, Jr. were on
the brief, for petitioner.

      Jeffrey P. Brundage, with whom Edward R. Noonan was on the brief, for
respondent.

      Before FISHER and EASTERLY, Associate Judges, and REID, Senior Judge.

      Opinion of the court by Senior Judge Reid.

      Concurring Opinion by Associate Judge Fisher at page 20.

      REID, Senior Judge: Petitioner, Jacqueline Lynch, filed an unemployment

compensation claim after she was terminated from employment by Respondent,

Masters Security. A District of Columbia Department of Employment Services

(―DOES‖) claims examiner disqualified her from receiving benefits on the ground
                                         2

that she committed gross misconduct in that she ―violated [Masters Security‘s]

weapons handling policy by leaving her loaded gun in the ladies room unsecured.‖

Sergeant Lynch filed an appeal with the Office of Administrative Hearings

(―OAH‖). After finding that Sergeant Lynch had not violated a company rule

regarding the handling of her firearm, an OAH administrative law judge (―ALJ‖)

affirmed the claims examiner‘s decision on the ground that Sergeant Lynch‘s

―actions were reckless‖ because she went to work knowing that she was

―distracted‖ by her mother‘s illness and failed to notice that she did not have

possession of her weapon. The ALJ also denied Sergeant Lynch‘s motion for

reconsideration. Sergeant Lynch lodged a petition for review with this court.



      For the reasons set forth below, we reverse the agency decision. We hold

that the ALJ‘s orders are not ―in accordance with the law,‖ because they are based

on a reason for termination that Masters Security did not articulate; hence, the

orders violate the fundamental principle that the denial of unemployment benefits

to a claimant must be grounded on the reason specified by the employer. Although

we agree with the ALJ that Masters Security did not prove a violation of its rules,

we remand this case to OAH to determine whether the existing record reveals that

Masters Security proved by a preponderance of the evidence that Sergeant Lynch‘s

act of leaving her loaded weapon in a publicly accessible place – standing alone
                                        3

and regardless if doing so violated her employer‘s rule – is the kind of gross

negligence that this court has equated with intentionality due to the serious harm

that could ensue.



                            FACTUAL SUMMARY



      The record before us indicates that Masters Security provides security

services to various clients, including the federal Department of Health and Human

Services (―HHS‖). When Masters Security terminated Sergeant Lynch, she was a

five-year employee holding the rank of sergeant, and she was assigned to the lobby

of the HHS headquarters building.



      During the hearing before the ALJ on February 25, 2013, Sergeant Lynch

was represented by an attorney, and Masters Security was represented by Major

Bernard Battle, Vice President of Operations for Masters Security.        Captain

Timothy Nelson, Sergeant Lynch‘s supervisor, testified that upon her arrival at

work on the morning of January 14, 2013, Masters Security distributed a weapon

to her. Before taking her post in the lobby, Sergeant Lynch went into a restroom.

She removed her weapon upon entering a bathroom stall. Later, another Masters

Security employee, Irene Burton, entered the same stall in the restroom, found a
                                          4

weapon on the toilet paper dispenser and took it to Captain Nelson.1 Officer

Burton acknowledged that she once left her weapon in the bathroom but was not

terminated.



      Captain Nelson determined that the weapon that Officer Burton found had

been issued to Sergeant Lynch.        He recommended that Sergeant Lynch be

suspended, pending termination, because ―she left a [loaded] weapon in the

bathroom stall, which is [a] termination offense according to the employee

handbook of Masters Security.‖2 While Captain Nelson ―was trying to handle [the

matter] in-house,‖ another security officer called Major Battle to report the


      1
         The ALJ admitted into evidence the incident statement written by Officer
Burton on January 14, 2013 (Exhibit 214). The statement read: ―[A]t 0806 Ofc.
Burton went on break, using the restroom on the lobby level. I found a 9 mm hand
gun sitting on the toilet paper roll. I wrapped it up and returned it to Cpt Nelson. I
left and continued with my break. PSO Irene Burton.‖
      2
        The record shows that Captain Nelson completed a personnel action form
on January 14, 2013 (Exhibit 212), stating in part: ―[L]eaving your weapon in the
[b]athroom and going back to post was neglect on your part and could have caused
harm to an employee that may have picked up the weapon. Therefore, after
conferring with Major Battle [Captain Nelson‘s supervisor] you are suspended
immediately pending further investigation.‖ The record also contains a termination
report (Exhibit 201), dated January 23, 2013, reflecting ―neglect of duty‖ as the
reason for termination, with the following explanation: ―Officer Lynch left her
weapon, which was loaded in the bathroom stall on top of the toilet paper
dispenser, and walked back to post without weapon. Another officer found the
weapon . . . and turned the weapon in.‖ Neither of these exhibits was admitted into
evidence.
                                         5

incident.   Major Battle contacted Captain Nelson and instructed him to ―get

[Sergeant Lynch] off of post immediately and send her home, and write up a

personnel action form.‖ Major Battle contacted Masters Security‘s Vice President,

Kristine Nichols, the ultimate decision-maker. He later informed Captain Nelson

that Sergeant Lynch would have to be terminated ―because of the offense of

leaving her weapon in the bathroom,‖ ―her loaded weapon in the bathroom.‖

When the ALJ asked Captain Nelson if he had spoken with Sergeant Lynch ―to

find out why she had left the gun in the bathroom,‖ he responded: ―[S]he had told

me that she had been going through some things. I believe she has a sick person in

her family, and her mental state wasn‘t right, at the time.‖ The ALJ said, ―So, she

was distracted? . . . Is that correct?‖ Captain Nelson answered, ―Yes, Ma‘am.‖



      Major Battle attempted to question Captain Nelson about the nature of

Sergeant Lynch‘s training, and to introduce documents about her training, but the

ALJ said she did not believe there would be any dispute about training and that in

her findings of fact, she would say that Masters Security ―did not train [Sergeant

Lynch] that leaving her gun in the bathroom was appropriate.‖ When Major Battle

said that was not acceptable, the ALJ asked why.          Major Battle answered,

―Because it states in her training manual that leaving a weapon - - you‘re never
                                          6

supposed to leave a weapon, an unarmed weapon - -.‖ The ALJ cut him off and

inquired, ―Isn‘t that what I just said?‖ Major Battle responded, ―Okay, that‘s fine.‖



      During her testimony, Sergeant Lynch explained that she ―had a lot of things

on [her] mind,‖ and that her ―mother has been very ill.‖ She asserted: ―I went into

the restroom, used it and as I head out, I usually, I always touch my weapon before

I come out of the restroom . . . . [B]ecause . . . that was on my mind, . . . I didn‘t

even think about that. I didn‘t do it.‖ After she received a call from Captain

Nelson around 8:06 or 8:10 a.m., she realized that she had forgotten her weapon.



      Prior to the hearing, Masters Security had submitted a list of exhibits and

had included several documents in a folder that was given to the ALJ. After the

testimony had been completed, the ALJ asked whether ―everyone has presented all

the evidence they wish to present.‖       Major Battle attempted to reference the

documents in the folder that had been given to the ALJ. The ALJ interrupted him

to indicate that only one of the documents had been ―moved in‖ and that was

Officer Burton‘s statement about finding Sergeant Lynch‘s loaded weapon in the

bathroom stall. The ALJ stated that she had all the evidence she needed, that there

was no dispute that ―the handbook says people should be fired for this‖; there was

evidence ―to indicate that not everybody gets fired, when they leave their gun in
                                         7

the bathroom‖; and there was no dispute about training and licensing. In response

to the ALJ‘s question as to whether there were any other facts she needed to know,

counsel for Sergeant Lynch and Masters Security‘s representative both replied,

―No.‖



        The ALJ issued a final order on March 11, 2013. She concluded that:

―Employer fired Claimant, a security officer, for leaving a loaded gun in a

publicly-accessible restroom for 15 minutes because she was preoccupied.‖ She

disagreed with Masters Security‘s statement that Sergeant Lynch‘s action

constituted ―disqualifying rule violation misconduct.‖     The ALJ declared that

Masters Security ―presented no credible evidence of any policy that would have

required [Sergeant Lynch] to place her gun elsewhere than the stall shelf while she

used the toilet,‖ but that as the ALJ ―understood the evidence, the problem was not

where [Sergeant Lynch] placed the gun while she used the toilet, but that [she] left

the bathroom, completely forgetting about the gun for 15 minutes.‖



        During an exchange with Major Battle at the February 25, 2013, hearing, the

ALJ stated: ―So, the question is going to be why [Sergeant Lynch] did it and

whether it was reasonable for [Masters Security], having apparently decided not to

terminate some other employee for doing the same thing, to go ahead and
                                        8

terminate her services for that reason, which seems the same.‖ When Sergeant

Lynch‘s attorney requested judgment as a matter of law, the ALJ denied the

request saying, ―even if this isn‘t a rule violation case, there [are] still some

unanswered questions here.‖     In her order, the ALJ gave her rationale for

concluding that Sergeant Lynch had engaged in gross misconduct:



                   The record evidence is that [Sergeant Lynch],
            although she knew that she was distracted by worry about
            her mother, failed for 15 minutes to notice that she did
            not have possession of her gun. Given the essential
            nature of her job, which was to use all her senses to
            monitor security in the area to which she was assigned,
            and given the fact that she had developed habits for
            safeguarding the weapon while she used the public
            bathroom, I conclude that [Sergeant Lynch‘s] actions
            were reckless, and constitute misconduct. Claimant‘s
            distraction was not a momentary lapse. She admitted that
            she remained so distracted that she never noticed that she
            did not have her weapon until she reported to the arms
            room at Captain Nelson‘s request. Simply put, those who
            are armed security personnel must also monitor
            themselves to ensure that they are not too impaired,
            either by drowsiness, distraction, or medication, to
            safeguard their weapons. [Sergeant Lynch] knew that
            she was distracted, but went to work anyway. It was
            sheer luck that her gun was found no more than 15
            minutes later by another officer, instead of an
            unauthorized person. . . . Instead of notifying [Masters
            Security] that she needed a break to check on her mother,
            or that she needed to be absent from work, [Sergeant
            Lynch] abandoned a loaded weapon in a[] publicly-
            accessible place. Such conduct is egregious, as it
            presented huge risks to the persons she was supposed to
                                         9

            be protecting, especially considering the known security
            challenges at the site.




The ALJ ―conclude[d] that [Masters Security] has demonstrated that [Sergeant

Lynch‘s] discharge arose from gross misconduct.‖



      Sergeant Lynch filed a motion for reconsideration; the ALJ denied the

motion on May 1, 2014. After summarizing Sergeant Lynch‘s argument that ―her

action of leaving her loaded gun unattended in a restroom was unintentional,‖ and

that ―she did not intend to place anyone in harm‘s way,‖ the ALJ declared, ―That is

not the point.‖ Rather, Sergeant Lynch ―knew that she was distracted by worry,

and knew that being on duty required her to at least safeguard, and be ready to use,

her loaded weapon.        Nevertheless, instead of admitting she lacked the

concentration necessary to perform her duties that day, she began her shift.‖ In

doing so, the ALJ concluded, in pertinent part, that (1) Sergeant Lynch‘s actions

were ―consciously reckless, in much the same way they would have been had she

been distracted or unable to properly pay attention to core job duties because she

was sleepy, had taken medication, or was engaged in a personal conversation,‖ and

(2) ―conscious disregard amounting to recklessness satisfies the intentionality

requirement.‖ Sergeant Lynch filed a petition for review with this court.
                                        10

                                  ANALYSIS



      Sergeant Lynch contends that the ALJ found that she unintentionally left her

firearm in the bathroom because she was distracted, and consequently, the ALJ

erred by using an unintentional act as the basis for finding gross misconduct. She

maintains that gross misconduct (as well as simple misconduct) requires employee

actions that are ―intentional, deliberate, and willful.‖ She further argues that a

―failure to notice‖ that she left her firearm in the bathroom does not constitute

―conscious disregard‖ or a ―conscious choice of a course of action.‖ Sergeant

Lynch also contends that the ALJ erred by ―treat[ing] Sergeant Lynch‘s decision to

go to work while knowing she was distracted as if it were disqualifying conduct,‖

even though that was not Masters Security‘s stated reason for terminating her

employment.



      Masters Security urges us to affirm the ALJ‘s determination, and asserts that

the ALJ ―made a finding of fact (which Sergeant Lynch unquestionably admits)

that Ms. Lynch intentionally came to work distracted,‖ and that ―it would defy

logic for her to argue that she ‗unintentionally‘ reported to work.‖       Masters

Security further argues that Sergeant Lynch‘s ―conduct violated [its] security

interests in building security (and threatened the public at large),‖ and that
                                        11

although the ALJ ―found that the employer did not prove a violation of company

rules,‖ nevertheless, as this court declared in another case, ―gross misconduct may

still be found when rules exist and the employee‘s conduct ‗disregards standards of

behavior which an employer has a right to expect of an employee.‘‖ Masters

Security insists that ―[Sergeant] Lynch intentionally came to work in such a

clouded mental state that she abandoned her loaded firearm in a publicly accessible

bathroom for 15 minutes,‖ that the ―ALJ‘s findings are not arbitrary, capricious, or

an abuse of discretion, and they are supported by substantial evidence on the

record.‖3



      Sergeant Lynch responds, in her reply brief, by reiterating the basic

arguments in her main brief. However, she emphasizes her contention regarding


      3
          Masters Security also argues that Sergeant Lynch violated the company‘s
rules regarding firearms. However, the ALJ specifically noted in the Final Order
that Masters Security ―presented no credible evidence of any policy that would
have required [Sergeant Lynch] to place her gun elsewhere than the stall shelf
while she used the toilet.‖ Masters Security points to a number of documents that
articulate policies for the safekeeping of firearms. However, none of these
documents were admitted at the hearing and we may not consider them in support
of Masters Security‘s contention here. See Mack v. District of Columbia Dep’t of
Emp’t Servs., 651 A.2d 804, 806 (D.C. 1994) (―[I]n reviewing the final decision of
an agency, we are limited to the record on appeal and cannot consider issues or
evidence not presented to the agency.‖). The burden was upon Masters Security to
prove a rule violation at the hearing, 7 DCMR §§ 312.7, 312.8 (1994), and the
company has presented nothing on appeal to challenge the ALJ‘s determination
that it failed to meet that burden.
                                        12

the ALJ‘s reliance on a reason for her termination that was not stated by Masters

Security; she asserts, ―it is settled law that the denial of unemployment

compensation cannot be based on conduct that was not the actual basis of the

employee‘s termination.‖



      ―Our review of OAH decisions is limited, and we must affirm unless the

decisions of the OAH are arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.‖ Savage-Bey v. La Petite Acad., 50 A.3d 1055, 1060

(D.C. 2012) (internal quotation marks and citation omitted). In addition, as we

have said previously:



            we review OAH decisions solely to determine whether
            (1) [the ALJ] made findings of fact on each materially
            contested issue of fact, (2) substantial evidence supports
            each finding, and (3) [the ALJ‘s] conclusions flow
            rationally from its findings of fact. . . . We defer to the
            ALJ‘s factual findings as long as they are supported by
            substantial evidence. . . . Substantial evidence is relevant
            evidence that a reasonable mind might accept as adequate
            to support a conclusion. . . . However, we review the
            ALJ‘s legal conclusions of whether a terminated
            employee‘s actions constitute gross or simple misconduct
            de novo.



Badawi v. Hawk One Sec., Inc., 21 A.3d 607, 613 (D.C. 2011) (internal quotation

marks and citations omitted).
                                         13

      Our analysis of the issues presented in this case is guided by the following

legal principles, statutory and regulatory provisions. An employee is disqualified

from immediate unemployment benefits if that person is discharged for either gross

misconduct or ―other than gross misconduct.‖ D.C. Code § 51-110 (b) (2012

Repl.).4   ―An employer seeking to prevent the payment of unemployment

compensation bears the burden of proving that the employee engaged in

misconduct (gross or otherwise).‖ Gilmore v. Atlantic Servs. Grp., 17 A.3d 558,

563 (D.C. 2011) (quoting Morris v. United States Envtl. Prot. Agency, 975 A.2d

176, 181-82 (D.C. 2009)) (internal quotation marks omitted).



       ―Gross misconduct‖ is defined in the District‘s Municipal Regulations as

any ―act which deliberately or willfully violates the employer‘s rules, deliberately

or willfully threatens or violates the employer‘s interests, shows 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.

―Other than gross misconduct‖ is defined as any ―act or omission by an employee

      4
          The two-tiered nature of this statutory regime provides a more severe
restriction on the benefits of employees discharged for gross misconduct than for
employees discharged for simple misconduct. Compare D.C. Code § 51-110
(b)(1) (gross misconduct precludes eligibility for benefits until the employee ―has
been employed in each of 10 successive weeks‖), with § 51-110 (b)(2) (simple
misconduct precludes eligibility for benefits ―for the first 8 weeks‖ in which they
are otherwise payable).
                                        14

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.‖     7 DCMR § 312.5.           This type of ―simple

misconduct‖—as we have often referred to it—includes ―acts where the severity,

degree, or other mitigating circumstances do not support a finding of gross

misconduct.‖ Id.



      ―[I]mplicit in [the] definition of ‗misconduct‘ is that the employee

intentionally disregarded the employer‘s expectations for performance.‖ Bowman-

Cook v. Washington Metro. Area Transit Auth., 16 A.3d 130, 135 (D.C. 2011)

(quoting Washington Times v. District of Columbia Dep’t of Emp’t Servs., 724

A.2d 1212, 1217-18 (D.C. 1999)). We have ―clarified that ‗intentionality or its

equivalent . . . is an element‘ of simple misconduct‖ as well as gross misconduct.

Scott v. Behavioral Research Assocs., 43 A.3d 925, 931 (D.C. 2012) (quoting

Hamilton v. Hojeij Branded Food, Inc., 41 A.3d 464, 476 (D.C. 2012)). Thus,

―[w]ithout more, proof of ordinary negligence cannot establish gross misconduct

within the meaning of [the District‘s] unemployment compensation statute,

because decisions of this court make it abundantly clear that an employee‘s actions

must be intentional, deliberate, or willful to amount to gross misconduct.‖ Capitol

Entm’t Servs. v. McCormick, 25 A.3d 19, 23-24 (D.C. 2011). Furthermore, ―[r]ead
                                          15

literally, the definition of [other than gross misconduct] . . . encompass[es] acts and

omissions that result from ordinary negligence,‖ but ―the definition of simple

misconduct cannot be read so broadly, and . . . ordinary negligence without more

cannot constitute simple misconduct disqualifying a dismissed employee from

receiving unemployment compensation benefits.‖ Id. at 24-25.



      To establish that ―more‖ is involved than ordinary negligence, and hence,

that misconduct has been established, we have required ―negligence in such degree

or recurrence as to manifest culpability, wrongful intent, or evil design, or [the]

show[ing] [of] an intentional and substantial disregard of the employer‘s interest or

of the employee‘s duties and obligations to the employer.‖ Id. at 28 (quoting

Hickenbottom v. District of Columbia Unemployment Comp. Bd., 273 A.2d 475,

477-78 (D.C. 1971)). This type of negligence, referred to as ―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 is apparent.‖ Id. (internal quotation marks and citation

omitted). This court also has declared that ―[t]he term 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
                                        16

rights and safety of others.‖ Id. n.36 (quoting District of Columbia v. Walker, 689

A.2d 40, 44-45 (D.C. 1997)) (internal quotation marks omitted).



      Not only does the employer bear the burden of proving that the employee is

disqualified from eligibility for benefits due to gross or simple misconduct, but an

ALJ‘s denial of benefits ―must be based fundamentally on reasons specified by the

employer for the discharge.‖ Smithsonian Inst. v. District of Columbia Dep’t of

Emp’t Servs., 514 A.2d 1191, 1194 (D.C. 1986); see also Brown v. Corrections

Corp. of Am., 942 A.2d 1122, 1124 (D.C. 2008). An ALJ cannot ―reject the

employer‘s rationale and yet deny benefits on another misconduct theory

independent of the employer‘s own determination.‖ Jones v. District of Columbia

Unemployment Comp. Bd., 395 A.2d 392, 395 (D.C. 1978); see also American

Univ. v. District of Columbia Dep’t of Labor, 429 A.2d 1374, 1375 (D.C. 1981)

(―[T]he employer‘s reason for discharging the employee must be scrupulously

examined in all levels of the appeal process.‖); Green v. District of Columbia

Unemployment Comp. Bd., 346 A.2d 252, 257 (D.C. 1975) (―The existence of

grounds upon which the employee might have been discharged is immaterial if

they were not in fact the grounds of discharge.‖). Therefore, ―we must overturn a

denial of benefits erroneously based on conduct substantially different from that
                                          17

which is specified as the reason for initial discharge.‖ American Univ., supra, 429

A.2d at 1375.



         The record here is clear that Masters Security terminated Sergeant Lynch

because she left her loaded firearm in the restroom. Captain Nelson testified that

she ―left a weapon in the bathroom stall, which is [a] termination offense,

according to the employee handbook of Masters Security.‖ But he also testified

that Major Battle informed him that the reason Sergeant Lynch‘s employment was

terminated was because she left her loaded weapon in the bathroom.5



         The ALJ concluded that Masters Security had not proven a violation of its

rules.       Instead of continuing her final order by addressing whether Sergeant

Lynch‘s act of leaving her loaded gun in the bathroom, standing alone,

nevertheless constituted gross negligence, the ALJ fashioned her own theory of

termination, the ―distraction theory.‖ That theory was based on Captain Nelson‘s

answer to the ALJ‘s question about whether Captain Nelson had spoken to

Sergeant Lynch ―to find out why she had left the gun in the bathroom.‖ In


         5
        There was no testimony at the hearing that Masters Security‘s reason for
releasing Sergeant Lynch from employment was because she chose to come into
work while in a distracted state of mind.
                                        18

response, Captain Nelson asserted that he believed Sergeant Lynch ―has a sick

person in her family, and her mental state wasn‘t right at the time.‖ Upon hearing

Captain Nelson‘s response, the ALJ said, ―So, she was distracted?‖ Captain Nelson

replied, ―Yes, Ma‘am.‖ From this exchange, the ALJ declared that Sergeant Lynch

―knew that she was distracted, but [she] went to work anyway,‖ and ―although she

knew she was distracted by worry about her mother, [she] failed for 15 minutes to

notice that she did not have possession of her gun.‖ Thus, concluded the ALJ,

Sergeant Lynch‘s ―actions were reckless, and constitute misconduct,‖ and further,

―those who are armed security personnel must also monitor themselves to ensure

that they are not too impaired, either by drowsiness, distraction, or medication, to

safeguard their weapons.‖



      The ALJ‘s final order and order denying reconsideration reflect a finding of

gross misconduct, not because of the employer‘s stated reason for termination

(given by Major Battle after his consultation with Vice President Nichols) – that

Sergeant Lynch left her loaded weapon in the bathroom – but because Sergeant

Lynch went to work knowing ―she was distracted by worry about her mother,‖ and

consequently, she failed ―to notice that she did not have possession of her gun,‖

and that she had left her ―loaded weapon in a[] publicly-accessible place.‖ Masters

Security appears to concede that this was the basis of the ALJ‘s finding of gross
                                        19

misconduct; in its brief the company states that Sergeant Lynch‘s ―abandonment of

the loaded firearm was the direct result of her gross misconduct in reporting to

work in a distracted state, not the act the ALJ relied on to find gross misconduct.‖

In specifying one of the reasons why Sergeant Lynch‘s conduct constituted gross

misconduct, Masters Security again maintained that ―she deliberately and willfully

reported to work distracted, causing her to abandon her loaded firearm in a

publicly accessible bathroom.‖ But, deliberately and willfully reporting to work in

a distracted state was not Masters Security‘s articulated reason for terminating

Sergeant Lynch, and this court‘s case law makes clear that an ALJ‘s denial of

unemployment compensation benefits ―must be based fundamentally on reasons

specified by the employer for the discharge.‖ Smithsonian Inst., supra, 514 A.2d

at 1194. Here, the ALJ‘s finding of gross misconduct is grounded, impermissibly,

―on another misconduct theory independent of [Masters Security‘s] own

determination.‖ Jones, supra, 395 A.2d at 395. Consequently, because it is ―not in

accordance with the law,‖ Savage-Bey, supra, 50 A.3d at 1060, we are constrained

to reverse OAH‘s decision.



      However, we remand this case to OAH, with instructions that the ALJ

consider whether the existing record reveals that Masters Security proved by a

preponderance of the evidence that Sergeant Lynch‘s act of leaving her weapon in
                                        20

a publicly accessible place – standing alone and regardless if doing so violated her

employer‘s stated rule – 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.‖6 Capitol

Entm’t Servs., supra, 25 A.3d at 28; see also Bowman-Cook, supra, 16 A.3d at

135.



                                      So ordered.



       FISHER, Associate Judge, concurring: I join Judge Reid‘s opinion, agreeing

that we cannot uphold the ALJ‘s finding of gross misconduct because it is based on

different reasons than those given by the employer for its decision to terminate

Sergeant Lynch. Moreover, Masters Security failed to prove that Sergeant Lynch

had violated its rules about the safeguarding of weapons. This is regrettable

because Sergeant Lynch created a very dangerous situation by leaving her loaded

weapon behind in a restroom accessible to the public. Where there is such a high

       6
         The remand findings and conclusions should be based on the existing
record because, as we said in Smithsonian Inst., supra, ―We see no need to reopen
the hearing, thereby giving the employer a second bite at the proverbial apple;
rather the [ALJ] on remand shall make the necessary finding based on the existing
record.‖ 514 A.2d at 1195.
                                         21

risk of serious injury, ordinary negligence should be sufficient to support a finding

of misconduct.     If the current statutes and regulations do not permit that

conclusion, they should be amended to do so.
