Opinion
C. A. No. 00A-05-001
Decided: October 27, 2000
Dear Mr. Hooks and Representative of Legum Norman:
Enclosed is the Memorandum Opinion I have issued this date regarding the above-referenced matter
Very truly yours,
Henley Graves
NATURE AND STAGE OF PROCEEDINGS
This case presents an appeal from a decision of the Unemployment Insurance Appeals Board ("Board"), that denied benefits to David L. Hooks ("Claimant"). The Board reversed the decision of the Appeals Referee and found that Hooks was terminated from his employment at Legum Norman ("Respondent") for just cause after failing to show for work for three consecutive days without personally reporting his absence to his Supervisor in accord with company policy. For the reasons stated herein, the Court remands this issue to the Board for further factual findings.
FACT STATEMENT
Claimant was employed by Respondent as a maintenance man from June 12, 1998, until January 21, 2000. He worked full-time and earned $8.25 an hour. At the hearing in front of the Appeals Referee on March 21, 2000, the representative for the Respondent ("Reynolds"), testified to the following. Claimant was discharged for failing to report his absence in accordance with Respondent's employee manual. Respondent has a written policy stating that if an employee fails to call in or show up for work for three consecutive days, Respondent will view this lack of communication as job abandonment and the employee will be terminated. Claimant signed a memorandum attesting to the fact that he had been informed of this policy. Copies of both the Respondent's policy manual and the memorandum signed by Claimant were admitted into evidence.
Claimant was scheduled to work on January 15, 2000. At 12:56 am on the morning of the fifteenth, Claimant called Respondent's answering service and left a message that he would not be able to work that day. Claimant was also scheduled to work January 18th, 19th, and 20th. He did not call or show up for work on those days. The answering service, which operates 24 hours a day, has no record of any other calls received from Claimant. Reynolds testified that he had heard rumors that Claimant was incarcerated, but had no official notification explaining Claimant's absence.
On January 22nd, Claimant came in to work to get his paycheck and was informed by Reynolds that he had been terminated for job abandonment. Reynolds testified that during Claimant's employment, Claimant was counseled several times regarding attendance and his responsibility to personally call in any absences, however Claimant probably was not specifically told that he would be terminated if he did not call in or show up for three consecutive days.
Claimant testified as follows. He was incarcerated on January 15, 2000. During his incarceration, he was only permitted one phone call and he used his to inform Respondent, by way of its answering service, that he would not be at work on the fifteenth. Claimant believed that he would be able to return to work the next day, but he was not freed until the evening of January 21. Claimant was prohibited from placing any further phone calls for the duration of his incarceration.
Claimant pled guilty to disorderly conduct and paid a fine.
Claimant's girlfriend, Patricia Killeen ("Killeen"), testified as follows. Killeen called Respondent January 15th, and left a message with the answering service informing Respondent that Claimant would not be able to work that day. On the sixteenth, she saw Reynold's administrative assistant, Beth Ann Steele ("Steele"), at a restaurant where Steele was working. Killeen claimed that she told Steele that Claimant was incarcerated and that he did not know when he would be able to return to work. On January 18th, between 5:00-7:00am, Killeen called Respondent's answering service and left a message that Claimant would not be at work. Also, on January 19th, she spoke to Steele about getting Claimant's paycheck because he needed funds so he could make his bail. Killeen believed that her contacts with Steele provided Respondent with sufficient notice for Claimant's absences from work.
The Appeals Referee's Findings were as follows.
This tribunal finds that the claimant was incarcerated on January 15, 2000. He called the employer's answering service and left a message that he would not be in to work that day. The claimant's girlfriend also called an left a message. The employer only received one of these messages. On January 16, the claimant's girlfriend saw the administrative assistant at the restaurant where the assistant was working. The claimant's girlfriend told her that the claimant was incarcerated and that she did not know when he would be getting out. The claimant was next scheduled to work on Tuesday January 18. His girlfriend called the employer's answering service between 5:00-7:00am and left a message that he would not be in to work that day. The next day, she went and spoke to the administrative assistant about getting the claimant's paycheck to use to get him out of jail. She could not authorize it. The claimant did not work his scheduled days of January 18, 19, and 20. He was released from jail on Friday. On Saturday, he went to speak to the employer representative. He was told he had not called in or shown up for work for three consecutive days and his position was terminated per the personnel policy for job abandonment. The employer's policy states that an employee will be discharged for not calling in or showing up for three consecutive days. The claimant was informed at his hire about the personnel policy manual and where it was located. He asked several times for a copy of it to review, but he never received it.
The Referee concluded that the actions taken by Killeen provided sufficient notice to Respondent that Claimant was incarcerated and unavailable for work. The Referee held that this notice complied with Respondent's employee policy, and therefore Respondent did not meet its burden of proving willful and wanton misconduct by Claimant sufficient to provide just cause for his discharge. Respondent appealed from this decision of the Appeals Referee.
At the hearing on the appeal of the decision of the Appeals Referee, held on April 19, 2000, the Board heard testimony from Steele refuting Killeen's version of events. Steele maintained that she was not working at the restaurant on the days Killeen claimed to have spoken to her, and that she had no contact with either Claimant or Killeen until the evening of January 20th, by which time Claimant had already missed three consecutive scheduled work days.
After personally observing both witnesses, the Board found Steele's testimony to be more persuasive than Killeen's. The Board's Decision reads as follows.
Findings of Fact and Conclusions of Law
The Appeals Referee found that the claimant was discharged from his work without just cause in connection with his work. The Board disagrees and reverses the Referee for the following reasons.
The Board heard additional testimony from Beth Reynolds....Ms. Reynolds contradicts Ms. Killeen's testimony and the Board accepts Ms. Reynolds' testimony. Although the girlfriend testified that she saw Ms. Reynolds on Sunday evening, Ms. Reynolds affirms that she saw Ms. Killeen only on the following Thursday evening. By this time the claimant had been a no call, no show for three consecutive days in violation of the employer's policy. The Board rejects Ms. Killeen's testimony and accepts Ms. Reynolds' testimony and finds that the claimant was discharged for just cause.
Decision
The decision of the Appeals Referee is affirmed [sic]. The claimant was discharged from his work for just cause in connection with his work. He is disqualified from the receipt of unemployment benefits beginning with the week in which he was discharged.
Claimant appeals the decision of the Board arguing that the Board erred when it preferred Steele's testimony to Killeen's. Respondent did not file an answering brief, but through its employee representative, Reynolds, explained its position by means of a letter to the Court. Though corporations must be represented by an attorney in court proceedings, a non-attorney employee may represent the employer at an administrative hearing. Marshall-Steele v. Nanticoke Memorial Hospital. Inc., Del. Super., C.A. No. 98A-10-00l, Graves, J. (1999). Pursuant to Superior Court Rule 107(E), this Court has opted to decide the issue based on the pleadings filed.
DISCUSSION
I. Was the finding that Claimant was fired for just cause supported by substantial evidence?
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing court is to determine whether substantial evidence supports the agency's decisions. Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 6-7 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). The appellate court does not weigh the evidence, determine questions of credibility. or make its own factual findings. Johnson v. Chrysler Corporation, 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 19 Del. C. § 3323(a).
Generally, poor attendance will support a finding of "just cause" for the discharge of an employee. Ortiz v. Unemployment Ins. Appeal Bd., Del. Supr., 317 A.2d 100 (1974). However, in Weaver v. Employment Sec. Comm'n, Del. Super., 274 A.2d 446 (1971) ("Weaver"), an employee was found to be discharged without just cause when his employer, without prior warning, fired him for poor attendance despite the fact that such behavior had been tolerated in the past. The Court held that the employee's "expected standard of conduct" was relevant to the determination of whether he behaved wilfully or wantonly and thus discharged for just cause. The Court reasoned that in situations where an employer has previously tolerated an employee's absences from work, the employer must first give the employee an unambiguous warning that further absences will endanger the employee's job before the employer may terminate for just cause. Applying this precedent to the instant case, in order to conclude that Claimant was discharged for just cause, the Board first needed to find that Claimant acted against policy despite having notice of Respondent's expected standard of conduct for employees.
The Appeals Referee found that Claimant "was informed at his hire about the personnel policy manual and where it was located. He asked several times for a copy of it to review, but he never received it." (emphasis added). Neither the Referee, nor the Board upon its subsequent hearing, made any inquiry into whether Claimant had actually been informed that the next time he failed to call in he would be terminated. The evidence in the record is conflicting on this matter. Claimant asserts that he was never personally informed of the policy, yet he signed a Memorandum indicating that he was aware of Respondent's policy.
A decision of the Board may be reversed and remanded for further hearings where there is a legally insufficient development in the record of factual determinations necessary to a determination of a claimant's eligibility for unemployment benefits. Harper v. Unemployment Ins. Appeal Bd., Del. Super., 293 A.2d 813, 816 (1972). Without an articulated finding that Claimant either was or was not aware of Respondent's absentee policy and of the consequences for failing to report for work for three consecutive days without providing personal notice to his supervisor, this Court cannot review the decision of the Board.
CONCLUSION
Because the Board's findings did not address Claimant's knowledge of Respondent's absentee policy and of the consequences for violation of this policy, the Court remands this case to the Board for further findings on this issue.
IT IS SO ORDERED.