Opinion
C.A. No. 00A-09-003 SCD
Submitted: March 9, 2001
Decided: June 13, 2001
Upon Appeal from the Unemployment Insurance Appeal Board — AFFIRMED
OPINION
This is an appeal by Diamond State Port Authority ("Employer") from the decision of the Unemployment Insurance Appeal Board ("Board"), which upheld the findings of the Appeals Referee granting Eric J. Morrow ("Morrow") unemployment compensation benefits. The Board adopted the findings of fact of the Referee and determined that Employer failed to prove willful or wanton conduct by Morrow sufficient to constitute just cause under 19 Del. C. § 3315(2). Pursuant to 19 Del. C. § 3323(a), Employer now seeks judicial review of the Board's decision.
This code section provides in relevant part: "An individual shall be disqualified from benefits: (2) For the week in which the individual was discharged from the individual's work for just cause in connection with the individual's work and for each week thereafter until the individual has been employed in each of 4 subsequent weeks (whether or not consecutive) and has earned wages in covered employment equal to not less than 4 times the weekly benefit amount.
I.
Morrow was first employed by Employer as a casual employee in February 1995. He did not work for Employer in 1996. In 1997, Morrow worked 319 hours for Employer, and 814 hours in 1998. His 1998 hours qualified him to become a union member, and he became a regular employee of Employee on January 1, 1999.
The evidence presented by Employer consists primarily of a series of written warnings and other incidents documenting Morrow's "disruptive and dangerous style" that posed a "danger to other Port employees, a risk to cargo and operations, and a threat to customer relations." On March 10, 1998, Morrow allegedly threatened a security officer when the officer attempted to tow Morrow's automobile. Morrow apologized.
Board TR. at 9. References to the August 23, 2000 Board hearing transcript will be cited as Board TR. at __.
The next incident occurred on February 2, 1999 when a supervisor reported that Morrow was not present on the job. The next day, another supervisor reported that Morrow had damaged cargo, and a written warning was issued.
Eight days later, on February 11, 1999, a supervisor reported that Morrow complained about his work assignment, thus violating the policy that workers could not select their job duties. Once again, a written warning was issued to Morrow.
Three weeks later, on March 2, 1999, the observation director observed Morrow sleeping on the job. On this occasion, Morrow was issued a five-day job suspension.
On July 6, 1999, Morrow allegedly left his work area without permission; therefore, he was docked thirty minutes. On July 16, 1999, Morrow was suspended by the operations manager due to his unsatisfactory work and inefficiency. Pursuant to union guidelines, Morrow was once again suspended and signed his first "last chance agreement." Due to a work slowdown, Morrow worked only a few hours for Employer for the remainder of 1999.
On March 24, 2000, Morrow was written up after having a heated discussion with a customer. On March 31, 2000, Morrow again was written up for giving another customer an inappropriate verbal response. Both customers requested that Employer not assign Morrow to handle their assignments, thus causing Employer to issue another written warning to Morrow.
On April 28, 2000, Morrow signed a second "last chance agreement." The agreement contained an acknowledgement by Morrow that he was informed of his employment status and understood that he would be terminated if he violated any contractual provision or Diamond State Port Corporation work rules within one year from the signing of the agreement.
One month later, on May 26, 2000, the incident resulting in Morrow's termination occurred. According to the Board's findings, Morrow was approached by another worker who asked Morrow to return the $25 he had borrowed from the worker. Morrow, concerned that his supervisors would overhear the conversation because the worker was speaking loudly, asked the worker to go with him to the nearby men's restroom so they could resolve the matter. Morrow allegedly told the worker he would return the $25 to him later in the day after he had cashed his check. Morrow left the restroom, received his work assignment for the day, and then left the union hall to go to his car in the employee parking lot to retrieve the appropriate work gear. The worker followed Morrow into the parking lot, and the worker went to his car and retrieved an unidentified object, later determined to be a bottle, from the trunk. The worker then confronted Morrow in the parking lot and attacked him with the bottle, striking him twice. Morrow then hit the worker with his fist causing him to fall down and strike his head on the ground. Other employees who witnessed the incident then approached the worker to assist him, and Morrow immediately went to report the incident to the union representative as he had been instructed to do in the past. A police investigation of the incident concluded that the worker was the aggressor and Morrow acted in self-defense.
Almost immediately after the incident, Employer terminated Morrow for violating the last chance agreement and for his numerous prior warnings and other incidents. Employer asserts that Morrow should have, and could have, done more to avoid the May 26th incident.
II.
An Appeals Referee, after hearing testimony regarding the May 26th incident, and other background complaints Employer had regarding Morrow's job performance and work history, held:
Although [Morrow] had signed a last chance agreement, the issue here with regard to unemployment benefits is whether he acted willfully or wantonly in violation of that agreement. None of the acts for which [Morrow] had previously been written up or disciplined involved a physical altercation. The evidence is uncontradicted that [Morrow] was the victim in the May 26, 2000 incident, not the aggressor. Therefore, the employer has failed to meet its burden of showing some willful or wanton misconduct that amounted to just cause for [Morrow's] discharge. [Morrow] is qualified for the receipt of employment benefits.
Referee's Decision at 4, Morrow v. Diamond State Port, Appeal Dock. No. 135141 (July 26, 2000).
Employer appealed the Referee's decision to the Board, which held its hearing on August 23, 2000. The Board heard testimony from Employer; Morrow was present, but stood on the record from below. The Board upheld the Referee's decision, stating:
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 the fact of the Appeal Board and the decision of the Referee is affirmed and the benefits are awarded.
III.
Employer filed its opening brief December 12, 2000, seeking judicial review of the Board's decision. Employer's grounds for appeal are: (1) the Board erred in its determination that Morrow was discharged without just cause under 19 Del. C. § 3315(2); (2) the Board failed to consider that Morrow's entire work record constituted just cause for dismissal; (3) the Board failed to apply the correct legal standard in its ruling; and (4) the Board failed to articulate its findings of fact, and only alluded to the "pertinent findings" of the referee.IV.
The Delaware Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. On appeal from a decision of the Board, the Court is limited to determining whether substantial evidence in the record supports the Board's findings, and that such findings are free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court in its appellate review does not, however, weigh the evidence, determine questions of credibility, or make its own factual findings. The Court merely determines if the evidence is legally adequate to support the Board's factual findings. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion. Thus, the Court now must determine if there is sufficient evidence in the record to support the Board's decision that Morrow was not discharged for just cause and is entitled, therefore, to unemployment benefits under 19 Del. C. § 3315(2).
See Employment Ins. Appeals Bd. of the Dep't of Labor v. Duncan, Del. Supr., 337 A.2d 308, 309 (1975); Longobardi v. Unemployment Ins. Appeals Bd., Del. Super., 287 A.2d 690, 692 (1971), aff'd, Del. Supr., 293 A.2d 295 (1972).
See Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battisa v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986).
See Johnson v. Chrysler, Del. Supr., 213 A.2d 64, 66 (1965).
See 29 Del. C. § 10142(d); Petty v. Univ. of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
V.
Title 19 Del. C. § 3315(2) provides in relevant part that "an individual shall be disqualified for benefits . . . [flor the week in which the individual was discharged from the individual's work for just cause in connection with individual's work. . . ." Just cause sufficient to justify an employee's termination under § 3315(2) is defined as:
[a] "willful or wanton act" in violation of either the employer's interest, the employee's duties, or the expected standard of conduct. "Wanton" conduct is that which is heedless, malicious, or reckless, but not done with actual intent to cause harm; "willful" conduct, on the other had implies actual, specific or evil intent.
See Tuttle v. Mellon Bank of Delaware, Del. Super., 659 A.2d 786, 789 (1995) (citations and footnote omitted). See also Abex corp. v. Todd, Del. Super., 235 A.2d 271, 272 (1967).
Willful or wanton conduct that constitutes just cause to discharge an employee requires a showing that the employee was conscious of his conduct and recklessly indifferent to its consequences. It does not necessarily mean bad motive, ill design, or malice. While fighting on the job has been recognized by this Court as conduct sufficient to meet the "just cause" requirement for dismissal, a finding for "just cause" termination for fighting must be examined in light of the particular circumstances of the case. Additionally, it is the burden of the employer to prove "just cause" by a preponderance of the evidence before an employee will be disqualified from receipt of benefits.
See Diamond Materials v. Manganaro, Del. Super., C.A. No. 98A-01-005, 1999 WL 1611274, at *2 Alford, J. (Apr. 8, 1999) (citing to News Journal v. McCune, C.A. No. 95A-09-022, 1996 WL 280761, at *3, Silverman, J. (Apr. 19, 1996) (Op. ORDER)).
See, e.g., Brooks v. Swales Assoc., Inc., Del. Super., C.A. No. 97A-02-006, 1997 WL 717775, Gebelein, J. (Oct. 24, 1997)(Op.); Perdue, Inc. v. Pride, Del. Super., C.A. No. 82A-MRS, Ohara, J. (Jan. 10, 1983); Dennis v. Unemployment Ins. Appeal Bd. Haveg, Del. Super., C.A. No. 5388, Balick, J. (Apr., 28, 1977) (Letter Op.).
Diamond Materials v. Manganaro, Del. Super., C.A. No. 98A-01-005, 1999 WL 1611274, Alford, J. (Apr. 8, 1999) (citing to Perdue, Inc. v. Pride, Del. Super., C.A. No. 82A-MR5, Ohara, J. (Jan. 10, 1982)).
See News Journal v. McCune, Del. Super., C.A. No. 95A-09-022, 1996 WL 280761, at *3, Silverman, J. (Apr. 19, 1996) (citing to Short v. Unemployment Ins. Appeal Bd., Del. Super., C.A. No. 85A-MY-1, Chandler, J. (Apr. 2, 1986) (Mem. Op.) at 2, aff'd, Del. Supr., 513 A.2d 1319 (1986)).
Employer contends that Morrow was discharged for just cause because Morrow could have avoided the precipitating incident, and he had already received two written warnings, three suspensions, and two last chance agreements.
Appeals Referee TR. at 12. References to the July 26, 2000 Appeals Referee hearing transcript will be cited as Appeals Referee TR at ___.
The Court is satisfied that the Board's decision is based on substantial evidence and supported by the record. After considering the record de novo and holding an independent hearing, the Board accepted the Referee's factual findings and adopted them as its own. The Board's decision indicates that, after reading what was said before the Referee and hearing the live testimony, it determined that Employer wrongly considered Morrow's physical altercation with a co-worker to be a precipitating incident in light of Morrow's pattern of conduct.
The Board is free to accept and reject testimony, accept the credibility of witnesses and weigh evidence as it sees fit. The Board agreed that the last chance agreement could support Morrow's termination for another infraction, but found that Employer failed to prove an additional violation. The Court agrees. As the Board stated, Employer could have terminated Morrow in March 2000 for his pattern of conduct subsequent to the signing of the first last chance agreement, but Employer chose not to do so. Thus, Employer may not now use Morrow's prior pattern of conduct as independent grounds for discharging him for the May 2000 incident.
See Evans v. Tansley, Del. Supr., No. 294, 1987, Horsey, J. (Mar. 29, 1988)(ORDER) (citing Coleman v. Dept. of Labor, Del. Super., 288 A.2d 287 (1972)).
In closing, the Court reemphasizes its limited role in reviewing the factual findings of an administrative agency. Admittedly, Morrow appears to be a continuing personnel problem for Employer, and it is understandable that Employer would like to terminate him. However, it is equally clear that Morrow's conduct on May 26, 2000 was neither wanton nor willful or sufficient to warrant dismissal without warning. This Court cannot reweigh the evidence and substitute its view of the facts for that of the Board's.
The Court is satisfied that the Board's decision entitling Morrow to unemployment compensation as allowed by the statute is supported by substantial evidence. The Board's decision is AFFIRMED.
IT IS SO ORDERED.