Opinion
C.A. No. 99A-07-006-CG.
Date Submitted: March 14, 2000.
Date Decided: March 23, 2000.
ORDER
This 23th day of March, 2000, upon consideration of the record in the case and the papers filed by the parties, it appears to the Court that:
(1) Appellee, New Castle County, Delaware, ("the County") hired Appellant, Mary T. Connell, on December 7, 1998 to serve as a clerk/typist. On March 12, 1999, the County terminated Connell due to her poor attendance and unacceptable attitude. Connell subsequently applied for unemployment compensation benefits. On April 5, 1999, a Department of Labor claims deputy determined that Connell was eligible to receive benefits.
(2) The County appealed the claims deputy's determination and an Appeals Referee held a hearing on May 13, 1999, which Connell and representatives of the County attended. On May 25, 1999, the Appeals Referee issued a written decision reversing the decision of the claims deputy that Connell was eligible for benefits. The Appeals Referee determined that Connell was discharged from her work for just cause in connection with her work. The Appeals Referee found:
The claimant was hired in a probationary period on December 7, 1998. The claimant had been absent and late a number of times from work and failed to follow the proper call-in procedures as required by the employer. The claimant received a disciplinary warning concerning the same on February 19, 1999 and was advised if she failed to correct her conduct, further disciplinary action would be taken, up to and including discharge. On March 12, 1999, the claimant was again late work and proceeded to answer a personal phone call and talked for 15 minutes upon her arrival. The claimant reasonably should have known that her job was in jeopardy because of the warning she had received on February 19 and especially in light of the fact that she was still in a probationary period.
(3) Cornell appealed the decision of the Appeals Referee and the Unemployment Insurance Appeal Board held a hearing on June 30, 1999. On July 6, 1999, the Board issued its decision affirming the decision of the Appeals Referee denying benefits to Cornell. The Board did not issue separate findings of fact; rather, the Board adopted the Appeals Referee's findings. Cornell subsequently appealed the decision of the Board to this Court, pursuant to 19 Del. C. § 3323.
(4) On appeal, Cornell argues that the Board's determination that she was terminated for just cause is not supported by substantial evidence in the record, that the Board erred by adopting the Appeals Referee's findings of fact rather than issuing its own findings of fact and conclusions of law based upon the additional evidence presented at the Board hearing, and that decision of the Appeals Referee was based upon hearsay.
(5) This Court's role, in reviewing a decision of the Board, is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Unemployment Ins. Appeal Bd. v. Duncan, Del. Supr., 337 A.2d 308 (1975). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Indus. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892 899 (1992). Under this standard of review, the Board must resolve questions of credibility and conflicts in the evidence while this Court may only determine whether there is satisfactory proof to support a factual finding. Ridings v. Unemployment Ins. Appeal Bd., Del Super., 407 A.2d 238, 239 (1979).
(6) Initially, Connell argues that she was denied due process of law because the Board adopted the Appeals Referee's decision, rather than issuing a decision that included "findings of fact or conclusions of law." The Court finds that the Board did not commit legal error by adopting the Appeal's Referee's findings of fact. The Board clearly stated that it considered the evidence presented by the parties at the Board hearing, as well as the record of the Appeals Referee proceedings. The Board stated in its decision:
The record of the above case having been reviewed, and additional testimony having been heard by the Appeal Board, based on the testimony heard before the Referee and by the Appeal Board, the pertinent findings of fact of the Referee are adopted as the findings of fact of the Appeal Board and the decision of the Referee is affirmed and the benefits are denied.
(Emphasis added.) As a result, the Court finds that Connell's first argument is without merit.
(7) Connell next argues, essentially, that the Board's determination that just cause existed for her dismissal is not supported by substantial evidence contained in the record. Connell argues that "one unauthorized absence and two minor late occurrences . . . [do] not rise to the level of `willful and wanton conduct. . . ."
(8) Initially, the Court notes that Connell does not argue that the Appeals Referee's findings of fact, quoted above, are not supported by substantial evidence in the record. Connell admits that she had one unauthorized absence and two occurrences where she was late to work. Connell also admits that she was given a verbal warning prior to the second late occurrence and that the verbal warning was memorialized in a written Record of Discipline, which Connell signed. The bottom the Record of Discipline reads, "This disciplinary action provides you with an opportunity to correct your conduct in the future. Additional related offenses are cause for more serious discipline, up to and including discharge." Connell also acknowledged to the Board that she was still within the probationary period of her employment. Rather, Connell argues that the County tolerated similar conduct and failed to explain "that its attendance policy required termination for such minimal infractions." Therefore, the Court must decide whether Connell's conduct, as set forth in the Appeals Referee's decision, constitutes just cause for her dismissal.
(9) Under 19 Del. C. § 3315(2), an individual is disqualified from receiving unemployment insurance benefits where the individual has been discharged for just cause in connection with his or her work. "Just cause" is defined as a "wilful or wanton act in violation of either the employer's interest, or the employee's duties, or of the employee's expected standard of conduct." Abex Corp. v. Todd, Del. Super., 235 A.2d 271, 272 (1967). If an employer consistently tolerates such misconduct, however, the employer may not be justified in firing the employee without first warning the employee that the conduct is no longer acceptable. Moeller v. Wilmington Sav. Fund Soc'y, Del. Supr., 723 A.2d 1177, 1179 (1999) (citing Ortiz v. Unemployment Ins. Appeal Bd., Del. Supr., 317 A.2d 100 (1974)).
(10) The Court finds that the Board's determination that Connell's conduct constituted just cause for her dismissal is supported by substantial evidence in the record and free from legal error. It is well-settled that poor attendance may support a finding of just cause for an employee's dismissal. Ortiz v. Unemployment Ins. Appeal Bd., Del. Supr., 317 A.2d 100, 101 (1974). Further, Connell was warned, both verbally and by written follow-up, that further incidences of tardiness could result in her dismissal from work. Therefore, despite Connell's arguments to the contrary, the Court finds that Connell was informed that her conduct was unacceptable and could result in her termination. The Court notes that Connell received write-ups on both occasions that she was late to work, which further supports a determination that the County did not tolerate such behavior from its employees, as Connell contends.
(11) Finally, Connell argues that the Appeal's Referee's decision is "solely based upon hearsay, speculation and conjecture, generated evidence that the claimant had no knowledge of and upon numerous unsubstantiated accusations, unfounded allegations, and inconsistent statements." As a result, Connell contends that the Board's decision constitutes plain error and abuse of discretion.
(12) Connell states, without further elaboration, that the majority of the County's testimony is "either unsupported hearsay, double hearsay or hearsay within hearsay." Initially, the Court notes that Connell failed to object to any part of the County's witnesses' testimony as hearsay during the Appeals Referee's or Board hearings. As such, Connell failed to preserve those arguments for appeal. Although Connell objected to the introduction of a performance evaluation at the Appeals Referee's hearing, the Appeals Referee correctly determined that the form was admissible and allowed Connell to testify that she had no prior knowledge of its existence.
(13) Also, Connell does not explain in this appeal to which statements she refers or in what way they constitute a form of hearsay testimony. Connell merely refers to pages of transcript testimony which are attached to her briefs without indicating which testimony contained in those pages she believes to be hearsay.
(14) Finally, the Court notes that, even if portions of the County's witnesses' testimony constituted hearsay, it is well-settled in Delaware that hearsay evidence is permissible in certain instances in administrative hearings, although the administrative board may not rely upon such evidence as the sole basis for its decision. Geegan v. Unemployment Compensation Comm'n, Del. Super., 76 A.2d 116, 117 (1950); Flowers v. Carpenter Transp., Del. Super., C.A. 92A-11-015, Barron, J. (Sept. 15, 1993), Order at 4. The purpose of allowing the Board to accept such evidence is to "free administrative boards or commissions from technical rules in order to prevent the invalidation of administrative orders when such evidence has been received." Geegan, 76 A.2d at 117. In other words, hearsay evidence is permissible as long as there is competent evidence having probative value to support the findings of the Board. Id; Rodgers v. M.K. Coale Enter., Del. Super., C.A. No. 92A-09-024, Afford, J. (Sept. 22, 1993), Mem. Op. at 2. The Court finds that the Board's decision was not based solely, or even in large part, upon hearsay testimony by the County's witnesses.
(15) Therefore, for the reasons set forth above, the Court finds that the Board's findings of fact are supported by substantial evidence in the record and that the Board committed no errors of law by determining that Connell was discharged for just cause in connection with her work.
As a result, the Board's decision is hereby AFFIRMED.
IT IS SO ORDERED.
oc: Prothonotary pc: Mary T. Connell Eric Leonard Episcopo, Esq.