Opinion
C.A. NO: 00A-01-006-NAB.
Submitted: May 26, 2000.
Decided: August 14, 2000.
Appeal From a Decision of the Unemployment Insurance Appeal Board. Reversed and Remanded.
Paula C. Witherow, Esquire, Cooch and Taylor, Wilmington, Delaware, for the Appellant.
Jane W. Evans, Esquire, Legal Services Corp. of Delaware, Inc., Wilmington, Delaware, for Appellee Jeffers.
James J. Hanley, Esquire, Deputy Attorney General, Wilmington, Delaware, for the Board.
ORDER
Having reviewed the parties' submissions, as well as the record below, the Court finds and concludes as follows:
1. Posture. Claimant Darnita Jeffers filed with the Department of Labor (Department) a petition for unemployment insurance benefits after being terminated from her job with The Lensfest Group, d/b/a Suburban Cable TV (Employer or Suburban). A Department claims deputy granted her petition, and Employer appealed. An appeals referee reversed the claims deputy, and Claimant appealed to the Unemployment Insurance Appeal Board (Board). The Board reversed the referee and granted Claimant's petition for benefits. Employer filed a timely appeal with this Court. Briefing is complete, and the issues are ripe for decision.
2. Facts. Claimant worked for Suburban as a customer service representative from June 29, 1998 through August 25, 1999. She answered telephone calls from customers and was expected to resolve as many calls as possible.
3. In May 1999, Claimant received a verbal warning because she had logged an unacceptably high number of "short calls," which Employer defines as any call lasting less than 10 seconds. Employer monitors the number of short calls logged by each customer representative because a short call is usually one that is either unresolved or unanswered. Employer had an informal "discussion" (also referred to as counseling) with any employee who logged more than 20 short calls in one month. During May 1999, Claimant had a total of 274 short calls.
4. After the informal discussion, Claimant signed a document, prepared by Employer, which verified the warning and stated that, if Claimant's performance did not improve, there would be "further disciplinary action up to and including termination." In June 1999, Claimant had 87 short calls, fewer than she had had in May but more than quadruple the acceptable number of 20. She logged a total of 2,442 calls, an unduly high volume which usually indicates that the rep is not staying on the line long enough to resolve the caller's question or problem. Claimant's average time per call was 1 minute and 55 seconds, compared to an expected 3 to 6 minutes per call.
Unemployment Insurance Appeal Board Record at 50 (hereinafter referred to as "Rec. at page no.").
5. In August 1999, management determined that Claimant was one of several employees whose performance warranted further evaluation. Claimant's calls were monitored August 18, 19 and 20, 1999. The results were consistent with May's results. Mike Collison, customer satisfaction manager, observed the high number of short calls and the extremely high number of calls answered, both of which are considered to be "red flags" which indicate that this rep's level of customer service is low. When these trends in Claimant's performance showed up in routine reports, Collison asked Eric Gilcrest, Claimant's team leader, to monitor her in an effort to identify the problem. Collison also followed up on Claimant's suggestion that the short calls were attributable to her sign-on number, but the telecommunications personnel said there was nothing wrong. Although Claimant showed some improvement, it was not significant. On August 25, 1999, Collison conducted "secret" monitoring of Claimant's calls at 2:00 p.m., a busy time of day for customer service representatives. Over the course of 10 minutes, Collison heard 5 to 7 calls which were unanswered. A colleague joined him in listening for another 5 minutes, when 6 to 7 calls were unanswered.
Rec. at 67-69.
When asked how long he monitored Claimant's calls, Collison responded, "About 15 minutes total. I listened to the first maybe 10 minutes by myself. My colleague listened and I listened for another 5 minutes." Rec. at 36.
6. According to Claimant, Collison then called her to his desk and asked her to define a short call. In Claimant's words, "I told him that there are so many at this job that I honestly don't know." Collison then asked Claimant to accompany him to the office of Kathy Joseph, manager of Human Resources. Collison asked Claimant if there were any problems with her equipment, and she said no. After several more questions, Claimant was terminated. At that point, Claimant remembered that her headset was not activated.
Compare this statement to Claimant's subsequent statement that "I received a counseling on June 3rd for short calls for the month of May." Rec. at 64.
7. The Board's decision. The Board acknowledged the uncontested facts that Claimant's performance was substandard and that she had been warned about her shortcomings. The Board observed (incorrectly) that it had no evidence about Claimant's performance for July and August 1999. The only finding that the Board made was its acceptance of Claimant's testimony that she had not intentionally ignored the incoming calls on August 25, 1999. For this reason, the Board concluded that Claimant's poor performance was not the result of wilful or wanton misconduct. However, the Board did not define "wilful or wanton misconduct" or attribute Claimant's substandard performance to inability, inadvertence, or simple negligence. Thus, the Board reduced the case to a single question of credibility.
8. Standard of review. The function of this Court on review of a Board decision is to determine whether the decision is supported by substantial evidence. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. This Court does not weigh the evidence, determine questions of credibility, or make factual findings in the first instance. Rather, this Court's role is to determine whether the evidence is legally adequate to support the Board's findings.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler, 213 A.2d at 66.
Title 29 Del. C. § 10142 (d).
9. Issues. On appeal, Employer argues that the Board's findings are not supported by substantial evidence and that the Board did not articulate its reasons for reversing the referee. Employer also argues that the Board misapplied accepted law regarding the "wilful or wanton misconduct" standard. Claimant responds that the decision is supported by substantial evidence and contains no error of law.
10. Just cause for dismissal: wilful or wanton misconduct. An individual is disqualified from receiving unemployment benefits when he is "discharged from the individual's work for just cause in connection with the individual's work. . . ." The burden is on the employer to show that the employee was terminated for "just cause." Just cause means wilful or wanton misconduct in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct. "[M]ere inefficiency, unsatisfactory conduct, or failure of performance as a result of inability or incapacity, inadvertence in isolated instances or good faith errors of judgment" do not constitute just cause.
Title 19 Del. C. § 3315 (2).
Evans v. Tansley, Del. Supr., No. 86A-AU-9, Horsey, J. (Mar. 29, 1988), Order at 4-5.
Unemployment Ins. Appeal Bd. v. Martin, Del. Supr., 431 A.2d 1265, 1267 (1981).
Starkey v. Unemployment Ins. Appeal Bd., Del. Super., 340 A.2d 165, 166-67 (1975), aff'd Del. Supr., 364 A.2d 651 (1976).
11. It is also important to note the distinction between wilful misconduct and wanton misconduct. The term "wilful" implies actual, specific or evil intent. The term "wanton" refers to heedless, malicious or reckless conduct and does not require a showing of bad motive or intent to cause harm. Although it is more difficult to show wilful, intentional conduct than it is to show wanton, reckless conduct, evidence of either one is sufficient to satisfy the "just cause" standard.
Delaware Administration for Regional Transit v. Jones, Del. Super., C. A. No. 94A-04-027, Babiarz, J. (Jan. 23, 1995) (Mem.Op.)
Id. at 6.
Id.
Id. (citing Boughton v. Division of Unemployment Ins. of the Dep't of Labor, Del. Super., 300 A.2d 25, 26 (1972).
12. The Board failed to state the law and disregarded much of the evidence. At the hearing, the Board chairman stated that "let's not go with the short calls cause they didn't do anything about the short calls when they could have." The record shows the opposite. Employer had a discussion, including a verbal warning, with Claimant, and she signed the verification notice indicating that if her performance did not improve, termination was possible. Employer continued to monitor her performance, which did not significantly improve. The oversimplification of the issues which began at the Board hearing is apparent in the Board's written decision as well.
Rec. at 74.
13. After reviewing the entire record, the Court concludes that the Board failed to state and apply the appropriate legal standards and ignored much of the relevant evidence. In fact, the Board narrowed the case to a sole question:
whether Claimant intentionally ignored incoming telephone calls on August 25, 1999. Furthermore, although the Board stated that the referee's decision was reversed, it did not say why and did not identify any errors in the referee's analysis. The referee made a thorough set of factual findings and stated the evidentiary basis for each finding. In contrast, the Board's decision is inadequate as to both the facts and the law. The Court can only conclude that the Board's decision evinces a "capricious disregard for competent evidence," not to mention the applicable law.
Dela ware Administration for Regional Transit v. Jones, supra, at 4 (citing Ridings v. Unemployment Ins. Appeal Bd., Del. Super., 407 A.2d 238, 239 (1979).
14. Instructions on remand. On remand, the Board will set forth the legal definition of "wilful or wanton misconduct," as well as the distinction between the two. The Board will determine whether or not Employer in this case has shown by a preponderance of the evidence that Claimant's work conduct constituted wilful or wanton misconduct. The Board will also consider whether Claimant acted "in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct." The Board will determine whether Employer gave Claimant notice of the standard of conduct expected of a customer service representative. In making its factual findings, the Board will consider the totality of evidence presented at both hearings and will resolve conflicts in testimony and evidence.
Id.
McKoy v. Dep't of Labor, Del. Super., C. A. No. 97A-02-21, Cooch, J. (Oct. 16, 1997) (Mem. Op.).
15. One such conflict is raised by Claimant's putative reason for talking rather than working on August 25, 1999. Claimant testified that, at the meeting which ended about 2:00 that afternoon, her team leader, Eric Gilcrest, had stated that the company was going to start cutting back on staff. In contrast, Collison repeatedly testified that Suburban was not planning any layoffs. Claimant responded that Collison was on vacation at the time of one of the alleged meetings. However, this assertion, even if true, does not explain why Collison had no knowledge of the alleged layoffs, since Collison was obviously not on vacation on Aug. 25, when Claimant testified that Gilcrest, who worked for Collison, informed the employees of possible layoffs. The Board questioned Collison and Joseph, the Human Resource manager, at some length about this question. Joseph also denied the allegation that layoffs were pending and summed up the situation as follows: "Well, we're hiring more than we're losing." This conflict must be resolved because Claimant relies on the alleged layoffs to explain why she was talking rather than working and also to suggest that her termination had nothing to do with her poor performance. Her statements are in direct contradiction to the testimony of both Collison, director of Customer Satisfaction, and Joseph, manager of Human Resources. On remand, the Board will review the evidence on this question and make findings based on that evidence.
Claimant testified that "My supervisor let us know that the job was going to start letting people go." Rec. at 62. She also said that "he [Gilcrest] was talking about we need to really be on our P's and Q's because you with the transition of the new company coming in they're going to start letting people go." Rec. at 73. In regard to another meeting, which Collison said never took place, Claimant testified that "[t]here was a manager meeting about a high number of short calls which I was told from a source I cannot reveal that there was talk of firing me. It was my belief that what I was told was true about the meeting the managers had and how my name came up to be terminated." Rec. at 64.
Collison, who is the team leader's manager, stated that "I was never party to any such meeting where termination of any employee was ever discussed and I've been working with this company for 14 years." Rec. at 77.
Rec. at 78.
See Rec. at 78-80.
Rec. at 81.
16. Another conflict which must be resolved is the parties' different perceptions of Claimant's performance and the reason for her termination. Claimant apparently believed that her shortcomings had been addressed and that her failure to take calls on Aug. 25, 1999, was a mere pretext for her dismissal. In contrast, Employer saw a "pattern" or "trend" of poor performance that started as early as May 1999 and culminated in August 1999. Employer evaluated Claimant throughout the summer and documented her performance. Further, Employer warned Claimant that termination could result if her performance did not improve. On remand, the Board will review the evidence on this question and make findings based on that evidence.
Rec. at 32, 35 (referee's hearing); 67-68 (Board hearing).
For all these reasons, the Board's decision granting Claimant Darnita Jeffers' petition for unemployment insurance benefits is Reversed, and the matter is Remanded to the Board for further proceedings as enumerated above.
It Is So ORDERED.