Opinion
C.A. No. 10A-05-017 FSS.
Submitted: February 14, 2011.
Decided: May 19, 2011.
Upon Appeal From the Unemployment Insurance Appeal Board — AFFIRMED.
ORDER
Shortly after Claimant was hired, he was fired for being a "no-call, no-show" for four shifts over three days. That followed other failures to report. Claimant's core claim is Employer had no just cause to fire him as it did not give a final notice. Because Claimant was scheduled to work, failed to report, and phone logs show he did not call in, the Unemployment Insurance Appeal Board held Claimant's failure to report was wanton and wilful. From that, the Board correctly concluded Claimant was fired for cause and disqualified from benefits. Simply put, Defendant was fired for excessive absenteeism.
1. Henry Allen, Jr., was fired approximately three weeks after he was hired by Chesapeake Security. During his brief tenure, Allen was written-up for being late and also a "no-call, no-show." Then, he was a "no-call, no-show" for four shifts over three days: three of the missed shifts were with a partner at Ivy Hall; the fourth was a solo shift at Sunset Station on the same day as one of the missed Ivy Hall shifts.
2. When Allen finally returned, a supervisor asked why. Allen replied that someone told him he was on the schedule. The supervisor asked Allen to say who. "You don't need to fucking know," Allen explained. Then, Allen was fired. Allen contends "[he] never received a warning" right before he was fired.
This insubordination was raised at the Board hearing, but Employer's brief does not mention it.
3. The appeals referee awarded benefits because Chesapeake did not appear. On appeal to the Board, Chesapeake's representative, Marla Sturgill, admitted Allen was not given final notice, but she explained that "final notice is kind of hard to give to someone who doesn't show up for four shifts[,] who admits that they received a phone call, [and] who says that he called us back." Chesapeake's phone logs show it called Allen's number shortly after he first failed to appear, but Allen testified he did not answer because he was asleep. Chesapeake's phone logs also show Allen never returned the call, or otherwise called in.
4. Sturgill also introduced Allen's work schedule, which Allen had earlier introduced before the appeals referee. She testified it was customary to schedule partner shifts at Ivy Hall on weekends. Finally, in response to Allen's argument that "Allen" could refer to anybody, Sturgill testified that "Allen" referred to Claimant Allen.
5. The Board had ample reason to find Allen was fired for just cause. As the Board put it, it was a "he said-she said situation," but the Board believed Sturgill. Allen's argument he would never agree to work consecutive shifts in different locations, on the same day, did not explain why he failed to appear at either locations. Allen's claim Chesapeake knew he would not work solo shifts at Ivy Hall failed to explain why he was a "no-show" for the partner shifts. Finally, Allen's effort to blame the ubiquity of his last name failed without evidence refuting Sturgill's testimony that "Allen" was Allen. Relying on the phone logs, Allen's schedule, and Sturgill's testimony, the Board found "that [Chesapeake] has established, at a minimum, wanton conduct on the part of [Allen]." Therefore, Allen was fired for just cause and disqualified from benefits.
6. This appeal is not a rehearing. The court's role on appeal is limited: the court will not reverse a decision that is supported by substantial evidence. Substantial evidence is evidence with substance to it. It is enough that a reasonable person would accept as adequate to support the Board's conclusions. If the Board's decision is supported by substantial evidence, the court "must affirm the ruling unless it identifies an abuse of discretion or a clear error of law."
Oceanport Ind. V. Wilm. Stevedores, 636 A.2d 892 (Del. 1994).
Bolden v. Kraft Foods, 889 A.2d 283 (Del. 2005) (TABLE).
7. Just cause, as a matter of law, is a "wilful or wanton act or pattern of conduct in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct." "Wilful and wanton conduct is that which is evidenced by either conscious action, or reckless indifference leading to a deviation from established and acceptable workplace performance."
Avon Prods., Inc. v. Wilson, 513 A.2d 1315, 1318 (Del. 1986).
Id.
8. Allen provides no reason to overturn the Board's decision. If he did not receive a final notice, the evidence showed it was because he slept through Chesapeake's call, then never called in. If the Board mis-recorded Allen as objecting to the schedule, as Allen contends, then he has no problem with the Board using it. Finally, Allen's profane insubordination to Chesapeake's supervisor was not part of the Board's decision, but it provides alternative support that Allen was fired with just cause.
See e.g., Vanderslice v. Encore, 1995 WL 270156 (Del. Super. Ct. April 28, 1995) (TOLIVER, J.); Poore v. Unemployment Ins. Appeal Bd., 1994 WL 466022 (Del. Super. Ct. Aug. 3, 1994) (RIDGELY, P.J.).
For the foregoing reasons, the Board's decision Henry Allen, Jr., was fired for cause and disqualified from benefits is AFFIRMED.
IT IS SO ORDERED.