Opinion
C.A. NO, 02A-10-009-FSS.
Submitted: May 2, 2003.
Decided: August 26, 2003.
Upon Claimant's Appeal from the Unemployment Insurance Appeal Board — AFFIRMED.
Jeffery W. Ehrlich, 1105 Haines Avenue, Wilmington, Delaware, 19809. Pro Se Claimant/Appellant.
Gary R. Spritz, Esquire, P.O. Box 7559, 2407 Raven Road, Wilmington, Delaware, 19801. Attorney for Appellee, Harris Jewelers Company.
Stephani J. Ballard, Esquire, Department of Justice, Carvel State Office Building, 820 N. French Street, 6th Floor, Wilmington, Delaware, 19801. Deputy Attorney General for the Unemployment Insurance Appeal Board.
ORDER
This is an employee's appeal from the Unemployment Insurance Appeal Board's denial of benefits. The Board found that the employee intentionally tried to misappropriate his employer's money and, therefore, he engaged in willful misconduct justifying termination and disqualification from benefits. Employee offers several, alternative grounds for appeal. Basically, he alleges that the employer's representative's testimony was inconsistent, that the Board relied on inadmissable and unreliable evidence, and the Board may have had an ex parte conversation with the employer's representative, which "may have swayed the decision."
Procedurally, after the employee was fired on July 1, 2002 he applied for benefits, which a Division of Unemployment Insurance Appeals claims deputy denied on July 12, 2002. The employee appealed that decision and, after a hearing on August 28, 2002, an appeals referee reversed the claims deputy, holding that the employee was discharged without cause. The employer appealed that decision and, finally, the Board held a full hearing on September 25, 2002. Reversing the appeals deputy, the Board denied benefits. The employee filed a timely appeal to this court. The standard for review is well-settled. Unlike the administrative proceedings just mentioned, the appeal to this court is on the record. That means the review here is strictly limited. The court has no authority, on appeal, to decide which witnesses were more believable, much less to make independent findings of fact. On appeal, the court has two duties: First, the court must determine whether the Board's findings of fact were supported by substantial evidence. Substantial evidence means evidence that has substance to it. In other words, the evidence has enough probative value that, when it is viewed in a reasonable light favorable to the Board's findings, the Board's findings are rational. The court's second duty on appeal is to decide whether the Board correctly applied the law to the facts, as the Board found the facts to be. Again, the court has no authority on appeal to make its own factual findings and to redecide the case as it sees fit.
Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1995).
General Motors Corp. v. Jarrell, 493 A.2d 978 (Del.Super.Ct. 1985).
Oceanport Indus., Inc., v. Wilmington Stevedores, Inc., 636 A.2d 892 (Del. 1994).
Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Johnson at 66-67.
The case's basic facts are undisputed. Ehrlich was employed for seventeen years by Harris Jewelers as a salesman. On June 29, 2002 Ehrlich sold a tennis bracelet for $350. As it happened, the customer once worked for Harris Jewelers. The customer's suspicions about the transaction were raised when Ehrlich offered to sell the bracelet for $350. The customer knew from his former employment that Ehrlich' s asking price was only $50 above the store's cost. Furthermore, Ehrlich insisted on cash. The customer even offered to pay by check or debit card, but Ehrlich insisted on currency. Not only that, Ehrlich conducted the transaction away from the cash register. As explained at the hearing, for certain reasons sales usually happened near the cash register.
The sale took place on a Saturday. By Monday, the customer was concerned enough that he spoke to the store's manager, who began making inquires. The manager testified that he spoke with Ehrlich, and Ehrlich's story did not matchup. Both the appeals referee's and the Board's decisions set out several inconsistencies. For example, Ehrlich's paperwork reflected the sale of a $50 rope chain, not a $350 tennis bracelet. And when the transaction became an issue, Ehrlich produced the $300 difference, but the cash was in different denominations from the money paid by the customer. The Board's decision reflects other suspicious evidence found in the record. Ehrlich tried to explain what happened. For example, he testified that he put the cash in the "layaway drawer," and several people had access to it.
In finding for Ehrlich, the appeals referee focused on the fact that in the end, Ehrlich accounted for the full price he charged for the tennis bracelet, $350. Also, the jewelry store did not have written procedures for handling cash. Accordingly, the appeals referee concluded that the way Ehrlich handled the transaction did not amount to willful misconduct.
The Board, however, after hearing Ehrlich's, the manager's, the customer's and other witness's testimony concluded that the way Ehrlich handled the transaction "lead to the conclusion that claimant was intentionally trying to misappropriate money from employer." In reaching that conclusion, the Board specifically accepted the testimony of the manager and the customer over that of the employee. As explained above, deciding which witnesses are believable is a matter for the fact-finder, the Board.
The Board's decision spells out the Board's conclusions and the evidence on which they are based. While the employee testified on his behalf, the Board rejected his explanations and it accepted the employer's and the customer's version, and their implications. The court is not allowed to reevaluate the testimony and weigh it differently. The Board's findings of fact are supported by substantial evidence, and they must stand. Once the Board concluded from the evidence that, as a matter of fact, the employee was trying to misappropriate the employer's receipts, the Board was justified in concluding that the employee engaged in willful misconduct. And, as a matter of law, willful misconduct justifies denial of unemployment insurance benefits.
Moeller v. Wilmington Say. Fund. Soc., 723 A.2d 1177 (Del. 1999).
As to the employee's final claim on appeal, that the manager asked to speak to someone after the hearing "regarding Mr. Ehrlich," the basis for that claim is a matter of record. According to the transcript of the Board's hearing, near its conclusion the manager asked to speak to "somebody outside of this room about this" In response, a Board member said, "Ok, but it has nothing to do with the termination." The manager replied, "No." And the Board member then said, "Our only job is the termination." At that point, the employee changed the subject and there is nothing else in the record about any ex parte communication. Based on that exchange, the employee "feels that [the manager's] request as well as any discussion that may have been held between [the manager] and any member of the. . . Board may have swayed the decision." There is no evidence that any improper communication actually took place between any Board member and the employer. Otherwise, as discussed above, the Board's decision appears to be based entirely on the evidence and reasonable inferences, which amply support the Board's wellexplained decision.
In conclusion, after carefully reviewing the Board's decision and the record, it appears that the Board's fact-finding was based on substantial evidence and it is free from legal error. Accordingly, the Board's September 25, 2002 decision, which became final on October 17, 2002, is AFFIRMED.
IT IS SO ORDERED.