Opinion
CA. No. 99A-08-008 CG.
Date Submitted: January 25, 2000.
Date Decided: February 4, 2000.
Letter Opinion and Order on Claimant/Appellant Palmer's Appeal of a Decision of the Unemployment Insurance Appeal Board — AFFIRMED
Marlayna G. Palmer, P.O. Box 688, Claymont, DE 19703-0688
Paula C. Witherow, Esquire, Cooch Taylor, 824 Market Street Mall, Suite 1000, P.O. Box 1680, Wilmington, DE 19899-1680
Dear Ms. Palmer and Ms. Witherow:
This is the Court's Letter Opinion and Order on Claimant Marlayna Palmer's ("Palmer") Appeal of a decision of the Unemployment Insurance Appeal Board ("UIAB"). For the reasons stated herein, the decision of the UIAB is AFFIRMED.
FACTS
Palmer was employed as a dispatcher for Suburban Cable from March 1993 until April 29, 1999. She received wage compensation of approximately $14.50 per hour. Palmer was terminated for theft of company property (cable television services) and for the participation in the installation of illegal television services at her residence. (Record, Dkt. No. 3. Termination Letter, Bates No. 00081). Suburban Cable challenged paying unemployment compensation benefits to Palmer, claiming that she was fired for just cause.
Suburban Cable is a subsidiary of the Lenfest Group. Both parties are Appellees in this case. For simplicities sake in the remainder of this Letter Opinion, both groups will be referred to as Suburban Cable.
As a benefit to working at Suburban, free basic and premium channels are given to its employees. ( See Record, Dkt. No. 3, Bd. Tr. at 4-7). There are some items, like pay-per-view events, that the employees are expected to pay 50% of the cost. Id. at 6. The 50% payment policy, however, is not written down. Ms. Palmer had, in the past, payed bills for cable services. Id. at 11, 32.
Each suburban employee has access to their own account information through a log on code. The potential for abuse of this system existed because an individual could make changes to his or her own account concerning items like pay-per-view charges. So, as a possible way to curb any abuse that could occur, Suburban decided to create a policy prohibiting employees from making changes on their own accounts or on the accounts of their co-workers. (Record, Dkt. No. 3, Referee Tr. at 16, Bd. Tr. at 26). This company policy was instituted via an E-mail memorandum distributed on July 27, 1998. This memo forbade employees from accessing their own accounts and gave instructions about how employees were to make changes to their personal accounts. It appears that Palmer received the E-mail concerning this change in policy ( See Record, Dkt. No. 3, E-Mail Distribution List Dated 7/27/98, Bates No. 00085) but she does not recall ever receiving notice that she could not make changes on her account. (Record, Dkt. No. 3, Referee Tr. at 19, Bd. Tr. at 20). The Suburban Cable policy was quite clear. It stated that any time a person that worked for the company needed something done with their account, they had to get somebody else to do it. (Record, Dkt. No. 3, Bd. Tr. at 19). The policy memo further stated "[i]f it is found that someone has failed to comply with this policy it could result in immediate disciplinary action up to and including termination of employment." (Record, Dkt. No. 3, E-Mail Policy, Bates No. 00081). Although Palmer states that she did not receive the E-Mail regarding the change in Suburban Cable policy, she "heard talk of people saying you know we shouldn't change our accounts or whatever." (Record, Dkt. No. 3, Referee Tr. at 58).
Palmer apparently did not pay the bill that was charged to her for her cable services. Palmer's entire bill for cable services was approximately $68.00. (Record, Dkt. No. 3, Bd. Tr. at 29). A disconnect was scheduled for her account on April 8, 1999 because of her nonpayment. Palmer, in contravention of company policy, went into the computer system and changed her disconnect. (Record, Dkt. No. 3, Referee Tr. at 20). At that time, Palmer also granted herself a payment extension. ( Id. at 23). Palmer admits to this conduct. (Record, Dkt. No. 3, Bd. Tr. at 12, 14).
Palmer testified before the Board that "[a]t the time I didn't have the funds at that time and I just gave myself an extension. And again I've done it before without any ramification and that's why I did not believe there would be any ramifications this time." (Record, Dkt. No. 3, Bd. Tr. at 33).
On April 22, 1999, Palmer's account was automatically disconnected because of her non-payment. (Record, Dkt. No. 3, Referee Tr. at 24). Subsequent to that, a pole disconnect of her cable was performed. ( Id. at 25). On the 29th of April, Palmer scheduled a "reconnect with a reason of disconnect in error" on her own account. ( Id. at 25). Basically, Palmer placed an order so that her own cable would be reconnected.
Ms. Thais Brown-Smith ("Smith") discovered the inappropriate activity on Palmer's account. Smith testified that a "random audit" had been performed on Palmer's tech number. That audit that showed that Palmer had some equipment (cable boxes) under her name that had not been returned. ( Id. at 10). Smith determined that there should not have been any equipment under Palmer's tech number because her account had been disconnected. ( Id. at 10). While investigating why Palmer had equipment checked out to Palmer's tech number, Smith discovered the unauthorized changes made to her account.
Smith confronted Palmer about the incident on April 29, 1999. ( Id. at 33). At that time, Palmer had indicated that she was being stalked and that is why she made changes in her account. Palmer indicated that she had moved and that she had notified the proper parties regarding changes in her address in the system, and making changes to her account. Palmer indicated that she sent the new information to Karen Davenport in the support services group on January 7, 1999. ( Id. at 38). That fact, however, did not explain the more recent changes made by Palmer on her own account. Palmer was subsequently dismissed from her employment with Suburban Cable. Suburban Cable felt that Palmer was dismissed for just cause and contested paying unemployment benefits.
Palmer indicated that she had made changes to her account because she was being stalked, and she had contacted support services to make them aware of her change in address. This behavior indicates some awareness by Palmer of the Suburban Cable policy forbidding employee's making changes in their own accounts.
Palmer contended before the Referee and before the Board that because she was an employee, and because she was entitled to receive free cable services, no theft of services could have occurred. ( Id. at 50). She also argued that she thought that she was allowed to make changes to her account. ( Id. at 57). Additionally, she contended that she did not receive the E-mail notification about not being able to make changes to her own account.
Palmer did realize that she was not allowed to make some changes to her account. She testified that she did not have clearance to create an employee account. ( Id. at 47). Palmer sent the letter to Ms. Davenport in order to have the system information "updated and changed to the new status." ( Id. at 38).
The Referee held that Palmer went into her account and granted herself an unpaid extension without authority. The Referee also determined that Palmer failed to establish any discrimination against her. Additionally, the Referee stated that it was "abundantly clear" that Palmer had taken it upon herself to cancel the disconnect and direct the reconnect without authority. The Referee concluded that the conduct of the Claimant was both willful and wanton and constituted just cause for discharge. (Record, Dkt. No. 3, Referee's Decision at 2-3). After hearing oral argument, the UIAB affirmed the decision of the Referee and adopted the findings of fact of the Referee. (Record, Dkt. No. 3, UIAB Decision, Bates No. 00097).
Near the culmination of the hearing with the Referee, Palmer claimed that she felt that her termination was as a result of a letter that she sent to Jerry Lenfest in March of 1997. ( Id. at 65). That letter, written by the African American League of Friends Intent on Equality Justice (which is included in the record (Record, Dkt. No. 3, Bates No. 00083)), alleges that Suburban Cable's forced Marlayna Palmer into working in a "hostile environment." The Referee found that there was no discrimination exhibited by Suburban Cable.
Palmer, acting as a pro se litigant in this case, has written a very strong brief on her own behalf. Palmer states several objections to the findings of the Referee and the Board. She argues that she was fired for theft of cable service, but, in fact, she was entitled to cable service as a perk of her employment. Thus. Palmer argues, that she could not steal it.
Palmer also contends that when she met with Smith on the day of her suspension, there was no written evidence that a "random audit" was ever performed on her account. Her allegation is that Smith did the audit without the assistance of the audit department. Palmer also questions how many audits had been done and questions how many dismissals Smith has been involved with regarding theft of service. Palmer also claims that Smith has yet to produce the E-mail document that Smith alleges to have sent to all personnel.
Smith testified at the hearing that the reason why the company did the audit was to make sure that equipment was being properly put in the correct tech status. (Record, Dkt. No. 3, Referee Tr. at 10). Only one employee had equipment under her tech number, and that was Palmer. Id. That finding led Suburban Cable to discover Palmer's conduct.
It appears, however, that Palmer's main contention is that Smith has "harbored an underlying personal animosity" towards her. She also claims that her letter to the president of Lenfest caused management to set in motion the wheels of her removal because she was perceived as a threat to the company. She states that Smith is a "token" manager, and that management uses Smith as a "shield" to protect management from discrimination based claims).
In her reply Brief, Palmer asserts error because she claims that the Appellees seek to cover up the fact that Smith acted as a "Guided Missile" sent by the Lenfest group to seek and destroy her.
Palmer also claims that the Referee, John Bockius, has a "pro-employer" bias for several reasons. First, Palmer claims that Mr. William Forrest was allowed to present evidence at the hearing with no proof that he was a Delaware attorney. At the same time, Palmer argues the Referee did not allow her non-attorney representative, Malcolm Tinsley, to participate in the hearing. It is not unusual for the employer to have a representative to counter the Claimant and there is no error in this regard. Second, Palmer argues that the Referee was biased because, she claims, some of the E-mail exhibits were non-existent. Despite Palmer's claims, the E-mails do appear in the record. (Record, Dkt. No. 3, E-Mail Text, Bates No. 00081 00085). Third, Palmer argues that her signing of the employee handbook in 1993 does not provide notice of the 1998 E-mail memo in question. On that score, Palmer is correct, but this fact does not appear to be the basis of the Referee's or the Board's decision. Fourth, Palmer argues that by not allowing her to present evidence of "custom and usage" and "expedience" as an affirmative defense to the "wanton and willful allegations" showed the Referee's, bias. From the transcripts provided, it appears that Palmer was given every opportunity to give her side at both the hearing before the Referee and at the hearing before the Board. Fifth, Palmer claims error in that her claims that the Referee failed to recognize retaliation as a possible basis for termination. Sixth, Palmer claims that much of Smith's testimony was hearsay because Smith had no firsthand knowledge that Palmer ever received the E-mail. Seventh, Palmer argues that there is no written policy in the employee handbook that says she has to pay 50% the pay preview charges and late fees. Eighth, Palmer states that E-mail is not identified in the handbook an appropriate way to notify individual workers of changes in policy. In summary, Palmer asserts the employer has not met its burden of proving willful and wanton behavior in this case.
E-mails showing the changes Palmer made to her account are also provided. ( See Record, Dkt. No. 3, Bates Nos. 00080, 00087, 00088, and 00089.
STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly emphasized the limited review of the factual findings of an administrative agency. Carpenter v. Mattes Electric, C.A. No. 96A-07-005, Quillen, J. (April 9, 1997). The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence and free from legal error. General Motors Corp. v. Freeman, Del. Supr., 3 Storey 74, 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 9 Storey 48, 213 A.2d 64, 66-67 (1965). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. Inc. v. Wilmington Stevedores Inc., 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). On appeal from the Board, the Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Johnson, 213 A.2d at 66. The factual findings of the UIAB, if supported by evidence and in the absence of fraud, are conclusive, the Court's jurisdiction is confined to questions of law. 19 Del. C. § 3323 (a); Delstar Industries, Inc. v. Delaware Department of Labor, Division of Unemployment Ins. Appeal Bd., Del. Super., C.A. No. 96A-04-001, Quillen, J. (Jan. 8, 1997). When the Board affirms a Referee's decision after taking additional testimony and adopts the findings of the Referee as those of the Board, the Court relies upon the Referee's determinations for the findings of fact and conclusions of law. Boughton v. Division of Unemployment Insurance, Department of Labor, Del. Super., 300 A.2d 25, 26 (1972).
DECISION
Although Palmer asserts that there have been errors of law made in this case, it appears that her claims on appeal are essentially factual in nature. The issue is whether there is substantial evidence to support the Referee's findings, and if so, did that evidence amount to just cause for dismissal.
Just cause for discharge is generally defined as a willful or wanton act in violation of either the employer's interest, the employee's duties, or the employee's expected standard of conduct. Abex Corp. v. Todd, Del. Super., 235 A.2d 271, 272 (1967); Ortiz v. Unemployment Insurance Appeal Board, Del. Supr., 317 A.2d 100, 101 (1974). While it need not connote bad motive, ill design, or malice, willful or wanton conduct requires a showing that one was conscious of one's conduct and recklessly indifferent as to its consequences. Coleman v. Department of Labor, Del. Super., 288 A.2d 285, 287 (1972). In many respects, "just cause" is the essential equivalent of "misconduct." Starkey v. Unemployment Ins. Appeal Bd., Del. Super., 340 A.2d 165, 166 (1975), aff'd, Del. Supr., 364 A.2d 651 (1976). Misconduct for purposes of the Unemployment Compensation statute "does not mean mere inefficiency, unsatisfactory conduct, or failure of performance as a result of inability or incapacity, inadvertence in isolated instances or good faith errors of judgment." Id. at 166-67 (citations omitted). Persistent poor work attendance coupled with prior warnings from the employer can constitute just cause for discharge. Weaver v. Employment Security Commission, Del. Super. 274 A.2d 446 (1991); Ortiz, 317 A.2d at 101. The burden to demonstrate misconduct or other just cause rests upon the employer. Webb v. Interstate Battery, Del. Super., C.A. No. 89A-DE-12, Gebelein, J. (Feb. 15, 1991), memo. op. at 2.Delstar Industries, Inc. v. Delaware Department of Labor, Division of Unemployment Ins. Appeal Bd., Del. Super., C.A. No. 96A-04-001, Quillen, J. (Jan. 8, 1997). A single instance of misconduct may suffice to justify termination. Westvaco Co. v. Gouge, Del. Super., No. 97A-03-015, Herlihy, J. (Aug. 14, 1997) (citing Unemployment Ins. App. Bd. v. Martin, Del. Supr., 431 A.2d 1265, 1268 (1981)). Thus, the Court's task in this case is to determine whether the record supports the Board's finding.
The Referee found that Palmer was relieved of her employment for making unauthorized changes in her account. (Record, Dkt. No. 3, Referee Decision at 2). Palmer admits to engaging in the unauthorized conduct. Her defense is simply that she did not know that she was not allowed to make changes to her own account. The Referee and the Board, however, chose to accept the evidence and testimony of the employer and determined that Palmer knew of the policy regarding changes to accounts (distributed via electronic mail) and should have followed it. The fact that Palmer sent an E-mail to Karen Davenport in January when she changed the address on her account shows at least some knowledge of the Suburban Cable policy.
The employer stated that this information was communicated both in team meetings and electronically. (Bd. Tr. at 15).
Karen Davenport is a named individual on the July 27, 1998 E-mail who was designated as a person to contact if an employee needed to make changes on their personal account.
There are some troubling things about Suburban's behavior in this case. First, Suburban's handbook (which Palmer signed in 1993) did not state that she had to pay money for certain pay-per-view events and tax charges. In fact, the handbook said that she was entitled to receive all basic and premium services as a fringe benefit of her employment. (Record, Dkt. No. 3, Bd. Tr. at 8-9). Second, the policy concerning a 50% payment for pay-per-view was not written down and the Board noted that the policy regarding the extra charges was "a little bit inconsistent." ( Id. at 31). But, Palmer had notice of that policy because she does admit that she was billed in the past and she paid those bills. ( Id. at 7). Third, the E-Mail that provided notice of the policy was not distributed to all of the employees directly. Rather, Smith sent the policy to all of the supervisors, managers and administrative staff of the Delaware County and New Castle County offices, to then be distributed to their subordinates and employees. (Record, Dkt. No. 3, Referee Tr. at 17). There was certainly the possibility that notice could have not reached subordinates, but the E-mail copies provided do show that notice was sent to Palmer. (Record, Dkt. No. 3, Bates No. 00080 00085). Fourth and finally, the handbook does not say that changes in company policy could appropriately be distributed by E-mail. (Record, Dkt. No. 3, Referee Tr. at 56). Here, however, notice of the company policy was the most important factor and there is substantial evidence to support the fact that Palmer had notice of the policy.
Certainly Palmer is correct in saying that there was no signature page attached to the change in policy that showed receipt of correspondence by employees. (Bd. Tr. at 28).
It is the responsibility of the trier of fact, in this case the UIAB and the Referee, to make findings of fact. The Referee determined that Palmer had notice of the company policy and she violated it. Palmer's dismissal was for theft of services and she violated company policy by giving herself an unpaid extension. Palmer does not dispute that she engaged in this behavior. While Palmer certainly disagrees with the conclusions of the Referee and asserts that several errors were committed, most of the complaints deal with how the Referee perceived the facts. On appeal from the Board, the Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Johnson, 213 A.2d at 66. Despite Palmer's significant allegations of discriminatory conduct by Suburban Cable, the Referee's conclusion that Palmer knew of the account changing policy and subsequently ignored that policy, was supported by substantial evidence. Furthermore, this Court is convinced that theft of services, in contravention of company policy, if supported by substantial evidence, is just cause for dismissal. See Thompson v. James River Corp. et al., Del. Super., C.A. No. 92A-09-014, Bifferato, J. (Dec. 29, 1993); Hoover v. Sears, Roebuck Co., Del. Super., C.A. No. 84A-MR-14, Bifferato, J. (April 22, 1986). The Referee could appropriately find that the reason for Palmer's termination was not motivated by discrimination, but rather by her conduct. Moreover, the Referee's and the Board's determination that Suburban Cable's decision to relieve Palmer of employment constituted just cause for dismissal is supported by substantial evidence. Therefore, the decision of the UIAB is AFFIRMED. IT IS SO ORDERED.
Although Palmer's "theft of services" by giving herself an unpaid extension constituted a relatively small financial loss to Suburban Cable, it still constituted a theft. When an employee steals services, that cost must be absorbed by other customers. As a matter of public policy, unauthorized theft of services should not be treated lightly and a company providing services is surely justified in terminating from employment an employee who steals the services being offered to the public. The conduct is both prejudicial to the company and the public.
Sincerely,
William T. Quillen