Opinion
C.A. No. 10A-01-020 MMJ.
Submitted: September 21, 2010
Decided: December 7, 2010.
Appeal from Decision of Unemployment Insurance Appeal Board Remanded for Further Findings of Fact.
Bradley V. Manning, Esquire, Wilmington, Delaware, Attorney for Appellant.
Jane W. Evans, Esquire, Wilmington, Delaware, Attorney for Thomas Dunn.
OPINION
FACTUAL AND PROCEDURAL CONTEXT
Claimant Thomas Dunn was employed by Optima Cleaning Systems, Inc. from September 25, 2000 to July 9, 2009. Dunn held various positions with Optima. Beginning in 2005, Optima cited Dunn for several instances of misconduct:
• On October 15, 2005, Dunn failed to ensure that a building was properly cleaned;
• On February 16, 2006, Dunn failed to adequately supervise Optima employees;
• On May 23, 2006, Dunn failed to ensure that a building was properly cleaned;
• On January 11, 2007, Dunn failed to ensure that a building was properly cleaned;
• On November 5, 2008, Dunn violated Optima's uniform policy;
• On April 24, 2009, Dunn violated Optima's uniform policy;
• On January 19, 2009, Dunn violated Optima's identification badge policy;
• On June 1, 2009, Dunn failed to timely report to Optima management that an Optima employee resigned;
• On June 6, 2009, Dunn was tardy;
• On June 30, 2009, Dunn failed to forward an employee leave request to Optima management; and
• On July 9, 2009, Dunn failed to accurately complete and forward employee time sheets to Optima management.
In addition, on July 3, 2009, Optima cited Dunn for what the parties refer to as the "key incident." At that time, Dunn was the Building Supervisor for the Wilmington Trust building located on Rodney Square, Wilmington, Delaware. Dunn was responsible for the keys that Optima uses to access janitorial closets and secured rooms. Dunn gave the keys to an Optima employee, Jose Valentin, so that Valentin could gain access to those rooms without Dunn's assistance. Later that evening, Valentin quit his job and left the premises, taking the keys with him.
Dunn phoned his supervisor, Kenneth Henderson, and advised him of the situation. Dunn explained that the building's security had a second set of keys. Henderson instructed Dunn to use the second set of keys, but to keep them in his possession, as they were the last set of keys to which Optima had access. Nevertheless, another Optima employee, Erick Secundio, used the keys. Subsequently, Secundio left the building.
Dunn, believing that Secundio had taken the keys with him, phoned Henderson to explain the situation. Dunn, together with other Optima employees, searched the building for the keys. As it turned out, Secundio had returned the keys to the building's security before he left.
On July 9, 2009, Dunn received a letter from Optima, informing him that he was terminated. The letter cited Dunn's poor supervisory judgment, "less than stellar administrative performance," repeated violations of Optima rules, and the key incident.
On July 26, 2009, Dunn filed for unemployment benefits with the Delaware Department of Labor. A Claims Deputy held that Dunn was ineligible for unemployment benefits because Optima had shown that the discharge was for just cause. The Deputy found that Dunn's behavior was willful or wanton, and adverse to Optima's interests. Dunn appealed the Deputy's decision to an Appeals Referee.
The Referee overturned the Deputy's decision. With respect to the key incident, the Referee found that Dunn's "failed supervision is better categorized as isolated inadvertence rather than willful or wanton conduct." As to the first set of keys, the Referee found that Dunn had permission to allow Valentin to handle the keys, and Dunn could not have anticipated that Valentin would quit and leave the premises. As to the second set of keys, the Referee noted that Dunn "left his keys on his desk to attend a cleaning emergency fifteen minutes prior to closing and had no prior warnings regarding his handling of building keys." Optima appealed the Referee's decision to the Unemployment Insurance Appeal Board ("Board").
The Board affirmed the Referee's decision, describing Dunn's repeated misconduct, leading up to the key incident, as involving "various and wide-ranging issues." It noted that Optima could have terminated Dunn for these incidents, but chose not to. With respect to the key incident, the Board agreed with the Referee's determination that it was an isolated inadvertence, rather than the product of willful or wanton behavior. To justify its conclusion, the Board stated that Optima failed to show that misplacing the keys was a violation of a "known and reasonable company policy" and that Optima did not give Dunn a warning that carelessness with the keys could lead to termination.
Optima appeals the Board's decision to this Court.
STANDARD OF REVIEW
On appeal from the Unemployment Insurance Appeal Board, the Superior Court must determine if the Board's factual findings are supported by substantial evidence in the record and free from legal error. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court must review the record to determine if the evidence is legally adequate to support the Board's factual findings. The Court does not "weigh evidence, determine questions of credibility or make its own factual findings." If the record lacks satisfactory proof in support of the Board's finding or decision, the Court may overturn the Board's decision. On appeal, the Superior Court reviews legal issues de novo.
Unemployment Ins. Appeal Bd. v. Duncan, 621 A.2d 340, 342 (Del. 1993).
Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (citing Olney v. Cooch, 425 A.2d 610, 614 (1981)).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Id. at 67.
Id. at 66-67.
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del 2009).
DISCUSSION
"An employee who is discharged for `just cause' is disqualified from receiving unemployment insurance benefits." Generally, just cause exists if an employee commits a "wilful or wanton act . . . in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct." "Wilful or wanton conduct requires a showing that one was conscious of his conduct or recklessly indifferent of its consequences; it need not necessarily connote bad motive, ill design or malice."The Board considered all relevant evidence.
Optima argues that the Board focused "extensively and almost exclusively" on the key incident. Optima contends that the Board should have afforded more weight to Dunn's repeated misconduct that stretched from October 15, 2005 to July 9, 2010.The Board considered Dunn's repeated misconduct, concluding that the "numerous reprimands and warnings beginning in October 2005[] deal with various and wide-ranging issues." As a result, the Board determined that Optima did not terminate Dunn as a result of his extensive track-record. Rather, it found that the key incident prompted Dunn's termination. Therefore, the Board considered all of the relevant evidence, giving little weight to Dunn's repeated misconduct. To the extent that Optima challenges the weight that the Board gave to this evidence, such a determination is within the province of the Board. The Court does not "weigh evidence, determine questions of credibility or make its own factual findings."
Starkey v. Unemployment Ins. Appeal Bd., 340 A.2d 165, 166 (Del. Super. 1975), aff'd, 364 A.2d 651 (Del. 1976).
Johnson, 213 A.2d at 67.
The Board erred as a matter of law by requiring a violation of stated Optima policy as a pre-requisite to termination for just cause.
Optima argues that the Board imposed an improper legal requirement to determine whether Dunn was terminated for just cause. The Board ruled that, to terminate an employee for just cause, the employee must violate a "known and reasonable" Optima policy.Violation of an established employer policy may constitute just cause to terminate an employee. The employee must be aware that the policy exists and that a violation of the policy may result in termination. However, because it is unlikely that an employer has created policy that prohibits the gamut of unacceptable employee conduct, an employee may be terminated, with just cause, for conduct that generally is adverse to the "employer's interest, the employee's duties, or the employee's expected standard of conduct."
McCoy, 1996 WL 111126, at *3 (citing Parvusa v. Timpton Trucking Co. Inc., C.A. No. 92A-12-009, Cooch, J. (Dec. 1, 1993) (The Court created a two-step application to determine whether a violation of employer policy amounts to just cause for termination:
(1) did a policy exist, and what did it prohibit; and (2) was the employee adequately made aware of the policy?)).
Moeller, 723 A.2d at 1179.
The Board failed to consider whether Dunn's conduct was adverse to Optima's interests. Rather, the Board rested its determination on the fact that Dunn did not violate a stated Optima policy. If the Board had considered whether Dunn's conduct was adverse to the "employer's interest, the employee's duties, or the employee's expected standard of conduct," it may have concluded that Dunn was terminated with just cause. The Board erred as a matter of law by requiring a violation of a "known and reasonable" Optima policy as a pre-requisite to termination with just cause.
Id.
The Board erred as a matter of law by failing to consider whether a specific warning was necessary under the circumstances.
Optima argues that the Board erred by requiring it to warn Dunn that misplacing keys could result in termination. Dunn responds that a warning is always necessary to terminate an employee with just cause.
Employees are entitled to some form of notice that their actions are unacceptable before being terminated. "If an employer consistently tolerates wilful or wanton misconduct, however, the employer may not be justified in firing employees without first warning them that their conduct no longer is acceptable." The notice need not expressly state that the employer will terminate the employee if the course of conduct continues. An employer must only provide notice of the impropriety of the conduct. However, this requirement is limited by the bounds of reasonableness. If an employee's actions are egregious — for example, stealing from the employer — then the employer may terminate the employee without any notice.
MBNA America Bank v. Capella, 2003 WL 1880127, at *3 (Del. Super.).
Moeller, 723 A.2d at 1179 (citing Ortiz v. Unemployment Ins. Appeal Bd., 317 A.2d 100, 101 (Del. 1974)).
MBNA, 2003 WL 1880127, at *3.
Further, an employer's warning is not necessarily limited to putting the employee on notice of the impropriety of the specific conduct that led to the warning. For example, if an employee is cited for failing to wear a tie, he may be unsuccessful in arguing that he did not receive a warning for subsequently failing to shine his shoes. This is especially true if the employee was aware that he was obligated to shine his shoes. Arguably, the two violations are different. However, both violations involved the employee's attire, and the employee had notice that improper attire was unacceptable. Whether an employee was on notice that certain conduct is unacceptable is a question of fact.
The Board found that Dunn "had not received any prior warning" regarding the keys. The Board did not consider whether misplacing the keys, twice, was so egregious that it was unnecessary for Optima to provide Dunn with a warning. Further, the Board did not consider whether Dunn was on notice that carelessness, in general, was unacceptable. Optima repeatedly cited Dunn for misconduct, beginning in 2005. The Board committed legal error by failing to consider whether a warning was necessary, and whether Dunn had, in fact, received a warning that careless behavior, such as misplacing keys, was unacceptable.
CONCLUSION
The Court concludes that a remand is necessary. The Board must consider: (1) whether Dunn's actions were adverse to Optima's interests, Dunn's duties, or Dunn's expected standard of conduct; and (2) whether Dunn was already on notice that careless behavior, such as misplacing keys, was unacceptable. The Board's decision is hereby REMANDED FOR FURTHER FINDINGS OF FACT.
Optima also argues that the Board's decision was not supported by substantial evidence. Because the Court concludes that the Board erred as a matter of law and has remanded for further findings of fact, the Court need not resolve the issue at this juncture.
IT IS SO ORDERED.