Opinion
C.A. No. 01A-05-001 WCC
Submitted: December 3, 2001
Decided: March 27, 2002
Upon Claimant's Appeal from the Unemployment Insurance Appeal Board.
Denied.
Philip B. Carlson, New Castle, DE, Pro Se.
Barry M. Willoughby and Adria B. Martinelli, Young, Conaway, Stargatt Taylor, LLP, Wilmington, DE, Attorneys for Appellee Fairmont Supply Company.
ORDER
On this 27th day of March, 2002, upon consideration of Phillip B. Carlson's appeal from the April 29, 2001 decision of the Unemployment Insurance Appeal Board, it appears to this Court that:
1. Phillip B. Carlson, ("the Claimant") was employed as a salesman for Fairmont Supply Company, ("Fairmont") from January 23, 1996 until January 24, 2001. The Claimant's termination resulted from an inappropriate comment made to a fellow employee, Sherill Sinibaldi, coupled with a sexual gesture, which was found to be unacceptable for a workplace environment. In January, 2001, Fairmont Supply Company was in the process of being acquired by new owners, and it appeared that the Claimant on January 19, 2001, was particularly disturbed by this process and the potential affect on his continued employment. Frustrated by the situation, the Claimant expressed his desire to leave work in a loud manner to which Ms. Sinibaldi suggested to the Claimant that he use his vacation time and go home. In response to these comments, the Claimant made a gesture with his hands in his groin area, and responded, "why don't you suck it." Because of a previously scheduled office meeting with the new owners of Fairmont Supply Company, Ms. Sinibaldi did not immediately report the incident to her supervisors. However, after the meeting, which was approximately 20 minutes after the incident, Ms. Sinibaldi reported it to Tom Yucas and Joe Barcale, her immediate supervisors at the company.
Whether or not the Claimant actually uttered these words appears to be in dispute, but what is not in dispute is the fact that the Claimant grabbed his groin area with his hands and directed this gesture toward Ms. Sinibaldi.
The Claimant conceded, when he testified, that he made the hand gesture towards Ms. Sinibaldi, but denied making the lewd remark. He agreed that the gesture was derogatory, but claimed that he and Ms. Sinibaldi frequently bantered in that manner and used as an example an alleged discussion of the Claimant's buttocks by Ms. Sinibaldi a few days previous to this event. He testified that the gesture made was not intended to offend or hurt Ms. Sinibaldi, as this type of conduct was engaged in by other employees, and was, according to the Claimant, condoned by the management. On the other hand, the Claimant, during his testimony, verified that he had received a copy of Fairmont's Handbook and was aware of the company's policy against such conduct. Ms. Sinibaldi denied the accusations that she and the Claimant engaged in teasing sexual remarks.
After this incident, Mr. Yucas and Mr. Barcale, the Claimants supervisors, spoke with Ms. Sinibaldi and discussed the matter with the Claimant, who acknowledged making the gesture and the comment, according to these supervisors. Mr. Yucas reported this incident to Fairmont's home office, who determined that the Claimant had violated company policy and since the Claimant's behavior was a violation of the standards set forth the Fairmont's handbook, the Claimant was terminated.
2. The Claimant first filed a petition to receive unemployment insurance effective on January 21, 2001. In its February 6, 2001 decision, the Claims Deputy found that Fairmont had established just cause to terminate the Claimant, which thereby disqualified him from receiving unemployment benefits. The Claimant appealed the Claims Deputy's decision to the Appeals Referee, who found that the Claimant's conduct, although inappropriate and an exercise of poor judgment, was not indicative of sexually harassing conduct warranting termination. Therefore, according to the Appeals Referee, Fairmont failed to establish just cause to terminate the Claimant, which thus entitled the Claimant to unemployment insurance benefits.
In a discharge situation, an employer must establish just cause to terminate an employee.
After the Appeals Referee's determination, Fairmont appealed to the Unemployment Insurance Appeal Board (hereinafter "Board"), which held a hearing on February 28, 2001 and found that Fairmont had demonstrated just cause to terminate the Claimant. The Board cited Tuttle v. Mellon Bank, as support for its determination that Fairmont's handbook clearly stated the use of profane or obscene language or conduct towards co-employees was a violation of company policy, that the Claimant was aware of this policy, and as such, the Claimant's remarks and gestures were inappropriate behavior for the workplace. The Board found that this conduct was inappropriate for any workplace environment, and also found that it was an exhibition of willful and wanton disregard of Fairmont's standard of conduct, which justified Fairmont's termination of the Claimant. The Claimant has now filed an appeal of that decision with this Court.
659 A.2d 786 (Del.Super. 1995).
4. On appeal, the Claimant appears to contend that the Board's decision was not supported by substantial evidence, and that the Board was biased because of the make-up of it members. The Claimant specifically asserted that because the Board was comprised of four women and one man, the Board did not render a fair decision supported by substantial evidence. At the Board's hearing, it appeared to the Claimant that the women Board members were "immediately on Ms. Sinibaldi's and [Fairmont]'s side" and that the Board members aided Ms. Sinibaldi "in creating lies" about the January 19th events. The Claimant also appears to contend that since the two witnesses he brought to the Board's hearing testified that they did not hear or see any of what Ms. Sinibaldi testified to, the Board was erroneous for finding Ms. Sinibaldi's rendition of the events credible.
5. Fairmont asserts that the Board's decision was supported by substantial evidence and free from legal error for several reasons. First, Fairmont asserts that even if it did not make out a legal claim that the Claimant committed sexual harassment it does not follow that he was fired without just cause. Thus, argues Fairmont, even if Ms. Sinibaldi welcomed the Claimant's lewd behavior, as the Claimant persistently asserts, this does not eliminate his responsibility to adhere to Fairmont's employment policy, which prohibits profane and obscene behavior. Further, Fairmont contends that the Claimant was aware of Fairmont's policy regarding profane or obscene language and conduct, and he had recently signed an acknowledgment stating he received and reviewed Fairmont's code of conduct, which included Fairmont's policy on sexual harassment.
Fairmont's Answering Brief at 4.
6. The function of this Court on review of an Unemployment Insurance Appeal Board decision is to determine whether the decision is supported by substantial evidence and is free from legal error. Substantial evidence is such relevant evidence that a reasonable person 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.
General Motors Corp. v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Boughton v. Div. of Unemployment Ins., Del. Super., 300 A.2d 2, 26-27 (1972); Ridings v. Unemployment Ins. Appeal Bd., Del. Super., 407 A.2d 238, 239 (1979).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 231 A.2d 64, 66-67 (196).
7. The Court finds that there was substantial evidence to support the Board's decision that Fairmont terminated the Claimant for just cause. Just cause has been defined as "a willful or wanton act in violation of either the employer's interests, the employee's duties or the expected standard of conduct." One factor used in determining "just cause" is "whether an employee received a prior warning [as] [a] single incident of misconduct may justify termination after a company policy against the conduct is clearly communicated to an employee." Here, it appears that not only did the employee handbook outline impermissible behavior, which would warrant termination, but the Claimant admitted having knowledge of that handbook and its contents. Since the Claimant conceded that he knew, and had read the employee handbook, which outlined the impermissible behavior, the Claimant cannot now claim that he did not have notice of the employee policy, or that he was unjustly terminated without just cause. The Claimant conceded to making the lewd gesture, and it is amazing to the Court that he continues to pursue this appeal in light of this admission. This Court will not tolerate or find acceptable the locker room demeanor and immature conduct demonstrated by the Claimant in a professional business setting. In this case, not only was such conduct unacceptable and unprofessional, it violated the code of conduct clearly articulated by Fairmont. There is simply no question that Fairmont had just cause for terminating the Claimant.
Tuttle v. Mellon Bank of Delaware, 659 A.2d 786, 789 (Del.Super. 1995) (citing Avon Products, Inc. V. Wilson, 513 A.2d 1315, 1317 (Del.Super. 1986)).
See Tuttle 659 A.2d at 789 n. 4(citing Weaver v. Employment § Commission, 274 A.2d 446, 447 (Del.Super. 1971); Pavusa v. Tipton Trucking Co., Inc., Del. Super., C.A. No. 92A-12-009, Cooch, J. (Dec. 1, 1993) (Mem. Op.) at 10.
As such, the Board's decision in this matter is factually and legally supported by the evidence presented, there was no abuse of discretion, in making that decision, and the decision was otherwise free from legal error. Therefore, the Claimant's appeal is denied.
See Tuttle v. Mellon Bank of Delaware, 659 A.2d 786 (Del.Super. 1995).
IT IS SO ORDERED.