Marshall v. District Unemployment Compensation Board

KELLY, Associate Judge,

dissenting:

There has never been a question, to me, that petitioner’s dismissal from the police force because he would not conform to constitutionally valid police regulations was warranted. Indeed, the United States District Court for the District of Columbia so held several years ago. Marshall v. District of Columbia, 392 F.Supp. 1012 (D.D.C.1975).¹ My position is that a refusal to conform to the regulations which is motivated by a bona fide religious belief is not misconduct² for purposes of unemployment compensation.

The appeals examiner’s findings are as set forth in the majority opinion, and his conclusion was that petitioner’s failure to obey the regulations was insubordination which constituted misconduct under the law. The petitioner appealed to the Board which affirmed and adopted the appeals examiner’s decision, one Board member dissenting. This petition for review followed.³

While the record supports the majority of the examiner’s findings, it is silent on whether the petitioner was advised that his grooming habits would have to be modified once his tour as an undercover agent ended. There is also no evidence that the petitioner was misled into believing his appearance would be acceptable in all his future police assignments. Thus, the examiner’s comments about what petitioner should have anticipated with respect to hair regulations are unsupported by evidence of record. In fact, the regulations which petitioner violated was not officially promulgated until well after his hiring.⁴

The record also discloses that petitioner made an unsuccessful attempt to obtain a waiver from the regulation and that he was willing to serve in several positions, e. g., dispatcher or harbor policeman, which he believed would not require cutting his hair or shaving his beard. Such facts are relevant in light of the definition of misconduct which we have adopted that it

must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or. evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. [48 Am.Jur. Social Security, Unemployment Insurance, Etc., § 38 (1943) (footnotes omitted).]⁵

In my judgment this record does not support a finding of misconduct.⁶ We have here an unfortunate and irreconcilable conflict between petitioner’s religious beliefs and the police department’s hair regulations, and, while I do not suggest that the police department did not have the authority to discharge petitioner, I would hold that petitioner’s actions in refusing to violate this concededly bona fide religious vow, after having been hired and employed with long hair and a beard, did not constitute misconduct within the meaning of D.C. Code 1973, § 46-310(b).

1 . Aff’d on appeal, 559 F.2d 726 (D.C. Cir. 1977). In that suit, petitioner sought reinstatement to the police department and back pay based upon the constitutional rights of religious freedom, equal protection and due process. The court on motions for summary judgment ruled against petitioner on the constitutional issues and it refused on comity to pass on petitioner’s allegations that the police department lacked authority to issue the hair regulation and that the regulation violated the District of Columbia Human Rights Law.

2 . D.C. Code 1973, § 46-310(b).

3 . D.C. Code 1973, § 46-312 (Supp. II, 1975), provides that review of DUCB decisions shall be in accordance with the District of Columbia Administrative Procedure Act, D.C. Code 1973, § 1-1501 et seq.

4 . Metropolitan Police Department General Order No. 1102.3 was issued on December 8, 1974.

5 . Hickenbottom v. District of Columbia, D.C.App., 273 A.2d 475, 477-78 (1971).

6 . See, e. g., Green v. District Unemployment Compensation Bd., D.C.App., 346 A.2d 252 (1975); Simmons v. District Unemployment Compensation Bd., D.C.App., 292 A.2d 797 (1972); and Hickenbottom v. District of Columbia, supra.