Opinion
C.A. No. 01A-03-009-PLA
Submitted: August 20, 2001
Decided: October 22, 2001
UPON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD REVERSED AND REMANDED.
Philip B. Bartoshesky, Esquire, Wilmington, Delaware for Appellant. Stephani J. Ballard, Esquire, Dover, Delaware for Appellee, Unemployment Insurance Appeal Board. Cathy A. Jenkins, Esquire, Wilmington, Delaware for Appellee, City of Wilmington.
OPINION
This is an appeal by a former employee of the City of Wilmington from a decision of the Unemployment Insurance Appeal Board ("Appeal Board") denying unemployment benefits after he was terminated for allegedly directing profanity to other employees in the workplace.
Appellant, Reynolds C. Abrams ("Claimant") began employment with Appellee, the City of Wilmington on February 1998. He was terminated on November 6, 2000. Claimant was employed as a youth and family coordinator for the Deter Prevention Network at the William Hicks Anderson Community Center. The Claimant's duties included coordinating Youth Center activities such as basketball for children, for which Claimant was required to purchase equipment from time to time. Claimant was frustrated by the bureaucratic obstacles that prevented him from properly fulfilling these responsibilities.
Claimant's termination resulted from a situation that occurred on October 26, 2000, the facts of which are largely undisputed. Claimant had a disagreement over the telephone with his supervisor Claude McCrea ("McCrea") concerning the ordering of T-shirts for the basketball players. The argument occurred in an inner office where the Claimant was in the presence of his co-worker, Rochelle Rowe ("Rowe"). Claimant was apparently given incorrect information by his supervisor concerning the T-shirt vendor. The dispute grew heated with both parties raising their voices above average conversational tone.
After the conversation, the Claimant told Rowe, "f*** it, I don't' give a f*** what you tell him", left the inner office, stating "f*** you, f*** all you all", and proceeded out the door. It is unclear to whom the latter expletive was directed. The Claimant contends that he did not direct his comments to anyone specifically and that they were just general statements made to vent his frustration. The two secretaries sitting outside the inner office testified that Claimant was looking in their direction when he used profanity but they were not sure whether the expletives were specifically directed towards them. Sometime after the incident, Claimant apologized to the secretaries. McCrea testified that one of these two secretaries, in addition to Rowe, had reported the incident to McCrea because they were upset by it.
According to the testimony of various witnesses, profanity is occasionally used in the office by a number of employees. Claimant testified that he has never been given an employee handbook nor had he been advised of office policies. Claimant further stated that he had never received a warning, written or otherwise, about his profanity and was never aware that it could lead to termination. There was no testimony establishing any prior incidents of profanity.
Initially, the City asserted several different reasons for Claimant's termination, including falsifying time records, inappropriate conduct in making verbal statements, and poor job performance. Following a hearing on November 22, 2000, the Department of Labor's Claim Deputy found that there was no just cause for termination because the City had provided no documentation to support its assertions. The Deputy granted Claimant unemployment benefits. In its appeal to the Appeals Referee, the City abandoned its initial assertions and grounded its appeal to the Appeals Referee solely on the October 26, 2000 incident involving profanity.
At the hearing before the Referee, the Claimant was not represented by counsel. The Referee heard testimony from various witnesses but refused to allow the Claimant to present any evidence to support his contention that the justification provided by the City for his termination was pretextual. The Referee found just cause for the termination because the Claimant had displayed a wanton disregard for the expected standard of conduct. Claimant was therefore disqualified from receiving unemployment benefits.
At the subsequent hearing before the Appeal Board on February 21, 2000, the Claimant was represented by counsel. The Appeal Board heard additional testimony, but Claimant was again denied the opportunity to introduce evidence of a pretextual basis for his termination. The Board refused to consider this evidence on the ground that there was no such evidence in the record from the Referee, and that the exclusive issue to be determined by the Board was whether just cause existed for the termination.
In this appeal, Claimant argues that it was error for the Appeal Board to refuse to allow him to present evidence that the City's justification for termination was pretextual. Claimant further submits that the Appeal Board erred in concluding that just cause existed for termination due to wanton conduct. The City, on the other hand, contends that the Appeal Board's determination of just cause was proper, that the City was not required to issue the Claimant a warning to refrain from the use of profanity, and that the Appeal Board appropriately rejected evidence of pretext because it was simply not relevant.
The function of this Court on an appeal from a decision of the Unemployment Insurance Appeal Board is to determine whether it is supported by substantial evidence and is free from legal error. Substantial evidence is such relevant evidence that a reasonable person might accept as adequate to support a conclusion. It is not the function of this Court to weigh evidence, determine questions of credibility, or make its own factual findings. The Court will only reverse a decision of the Appeal Board if its findings are not supported by substantial evidence, or where the Appeal Board has made a legal mistake.
Unemployment Insurance Appeal Board v. Duncan, Del. Supr., 337 A.2d 308, 309 (1975).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Delgado v. Unemployment Insurance Appeal Board, Del. Super., 295 A.2d 585 (1972).
This Court concludes, from its review of the record, that the Appeal Board erred in its refusal to receive any evidence from the Claimant of a potentially pretextual reason for Claimant's dismissal. The Appeal Board insisted instead that the exclusive issue before it pertained to the events that took place on October 26, 2000, and whether Claimant's behavior on that date amounted to willful and wanton conduct to justify a termination based on just cause. This Court disagrees.
The Appeal Board is required to accept all evidence that is relevant, material and competent. Exclusion of such evidence constitutes grounds for reversal if the exclusion is prejudicial. In this case, evidence of pretext is highly relevant to determine whether just cause actually existed for the Claimant's termination, particularly in light of the fact that the City had earlier asserted three other grounds for its decision but abandoned them on appeal to the Appeals Referee, substituting the incident involving profanity, which had not been argued previously. After the Claims Deputy had rejected the first three alleged grounds for Claimant's termination it only then raised the October 26th incident to support is claim of just cause. Under these circumstances, exclusion of this evidence was prejudicial to Claimant.
Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 32 (1995); Clayton Ridings, III, Claimant v. Unemployment Insurance Appeal Board and Department of Natural Resources and Environmental Control, Del. Super., 407 A.2d 238, 240 (1979).
The Lensfest Group d/b/a Suburban Cable v. Jeffers and Unemployment Insurance Appeal Board, Del. Super., C.A. No. 00A-01-006-NAB, 2000 Del. Super. LEXIS 459, *14 Barron, J. (August 14, 2000); See also Austin v. Fisher Scientific Company, Del. Super., C.A. No. 92A-03-007, 1993 Del. Super., LEXIS 147, *15 — *16 Goldstein, J. (April 22, 1993) (Finding that if allegations of pretext are true then just cause does not exist for termination); Hudley v. Riverside Hospital, Del. Super., C.A. No. 92A-11-019, 1993 Del. Super., LEXIS 421, *29 — *34 Cooch, J. (Sept. 27, 1993) (Finding that the Referee had fulfilled his duty to accept evidence of pretext to determine if just cause existed for the termination of an employee).
The employer points out that, if the question of pretext was relevant, Claimant would have mentioned it in his opening statement to the Board, but he failed to do so. This argument is not persuasive. The issue is not what was emphasized or mentioned by counsel, but whether just cause existed for the Claimant's termination. If a reason for termination exists other than what the City chose to assert, evidence of this fact is clearly relevant. The materiality of this information is not diminished merely because it was not raised directly in the opening statements presented to the Board. Furthermore, Claimant implied the possibility of the existence of unstated reasons for the termination when he asserted that the profanity was not the real cause for termination in this case.
Record at pp. 110.
The Board's finding of just cause based on the willful and wanton conduct of the Claimant is also based upon somewhat conflicting views of his conduct. For example, although the Referee below concluded in its decision that the "frustration caused by dealing with administrative red tape is understandable", the Board nevertheless found that this single outburst amounted to willful misconduct. In a case involving similar circumstances,
Record at pp. 19-20.
Dozier v. Uncle Willie's Deli , the Court examined a single incident of the use of profanity and applied the rationale that profanity is classified as willful misconduct when there is no justifiable provocation for profanity. In this instance, the Referee found the Claimant's frustration was understandable which would lead to the contrary conclusion, i.e., that his outburst was justifiably provoked.
Del. Super., C.A. No. S91A-04-002, 1992 Del. Super. LEXIS 527, *8 — *10 Lee, J. (Dec. 15, 1992).
Moreover, the Appeal Board's conclusion that the Claimant had directed his comments toward the two employees sitting outside the inner office is not supported by the evidence. The evidence on this issue consisted of the Claimant's testimony that the comments were not directed toward them, and the testimony of the two employees who were not sure whether the comments were specifically directed at them. Thus, there was no evidence presented to support the Appeal Board's conclusion that the comments were directed at these two employees.
The Court is also troubled by the fact that Claimant never received an employee handbook nor had he ever been advised of a policy that prohibited office profanity. While the use of such language can generally be assumed to be unacceptable, when considered in conjunction with testimony that other employees had been known to use profanity in the office without being terminated, the Board's restriction of the admission of the other evidence offered by Claimant simply compounds the prejudice to him.
The Board's error in excluding relevant evidence requires that its decision granting benefits to Claimant be reversed and remanded. On remand, the Appeal Board should revisit the facts related to this issue in conjunction with evidence of a possible pretextual basis for termination, and it should also reconsider the existence of just cause. The case is remanded to the Appeal Board for further hearing consistent with this decision. Findings on the issue of the existence of just cause should be made based on all of the evidence, including the additional proffered testimony that was previously excluded.
IT IS SO ORDERED.