Opinion
C.A. No. 00A-12-001-JRJ
Submitted: July 12, 2001
Decided: August 3, 2001
Appeal from a Decision of the Unemployment Insurance Appeal Board. Decision Affirmed.
Jeffrey M. Boyer, Esquire, Huffman Law Practices, Wilmington, Delaware, for Appellant Darnita L. Jeffers
Paula C. Witherow, Esquire, Cooch and Taylor, Wilmington, Delaware, for Appellee The Lensfest Group.
ORDER
Having reviewed the parties submissions, as well as the record below, the Court finds and concludes as follows:
1. Posture. In August 1999, Claimant filed with the Department of Labor, Division of Unemployment a petition for unemployment insurance benefits after being terminated from her job with The Lenfest Group, d/b/a Suburban Cable TV ("Employer" or "Suburban"). A claims deputy granted Claimant's petition, and Employer appealed. After conducting a hearing, an appeals referee reversed the claims deputy, and Claimant appealed to the Board. The Board heard further evidence and granted Claimant's petition for benefits. Employer appealed to the Superior Court.
2. This Court reversed the Board's decision and remanded the cause for application of the appropriate theory of law and resolution of conflicts in the evidence. On remand, the Board held a hearing and issued a decision on November 14, 2000, denying Claimant's petition. Claimant filed a timely appeal to this Court. Briefing is complete, and the issues are ripe for decision.
Lenfest Group d/b/a Suburban Cable v. Jeffers UIAB, Del. Super., C. A. No. 00A-01-006, Barron, J. (Aug. 14, 2000) (ORDER).
3. Facts. Claimant worked for Suburban as a customer service representative from June 29, 1998, through August 25, 1999. Her sole responsibility was to answer telephone calls from customers and resolve as many problems as possible.
4. In May 1999, Claimant received a verbal warning because she had logged an unacceptably high number of "short calls," which Employer defines as any call lasting less than 10 seconds. Employer monitored the number of short calls logged by each customer representative because a short call was usually one that is either unresolved or unanswered. The acceptable number of short calls was 20 per month. Employer had an informal discussion (also referred to as a counseling session) with any employee who logged more than 20 short calls in one month. During May 1999, Claimant had a total of 274 short calls.
5. Immediately following the counseling session, Claimant signed a document, prepared by Employer, which verified the warning and stated that, if Claimant's performance did not improve, there would be "further disciplinary action up to and including termination." Claimant logged 87 short calls in June, 126 in July, and 48 in August. In July, she logged a 2440 total calls, an unduly high number, which often indicates that the customer representative is not staying on the line long enough to handle the caller's question or problem. Claimant's average time per call was 1 minute and 55 seconds, compared to an expected 3 to 6 minutes per call.
Id. at 3.
6. When confronted with her record of short calls, Claimant asserted that her short calls were attributable to a problem with her sign-on number, but the technical personnel were unable to find a problem. Because of continuing concerns about Claimant's performance, in August 1999, management decided that Claimant was one of several employees whose performance warranted further evaluation. Claimant's team leader, Eric Gilcrest, monitored Claimant's calls on August 18, 19 and 20, 1999.
7. On the afternoon of August 25, 1999, Mike Collison, customer satisfaction manager, monitored Claimant's calls after the lunch break. During a 10-minute time span, Collison noted 5 to 7 unanswered calls. A colleague joined him in listening for another 5 minutes, when 6 to 7 calls went unanswered. Collison then asked Claimant to accompany him to the office of Cathy Joseph, manager of Human Resources. Collison asked Claimant if there were any problems with her equipment, and she said no.
After an interview of a which lasted approximately 10 minutes, Claimant was terminated and subsequently filed for unemployment benefits.
8. The Board's decision following remand. After conducting a second hearing, the Board issued a decision denying Claimant's petition on November 1, 2000. The Board made the following findings of fact. First, Claimant had been counseled on short calls on June 3, 1999, and warned that further problems in this area could result in termination. Second, between June and August 25, 1999, Claimant was informally advised of the continuing problem by her supervisor during one or two of the weekly team meetings. Third, Claimant's number of short calls decreased during the summer months of 1999, but her performance in this area was still a problem. Fourth, Claimant had been given almost three months to resolve her problem with short calls and had not done so. Fifth, Claimant's termination was not part of a pattern of layoffs. Based on these findings, the Board concluded that Claimant's continued pattern of excessive short calls and her failure to answer the phone on August 25 constituted wanton misconduct in violation of her duties, and that she was discharged for just cause in connection with her work. Having found just cause on these issues, the Board declined to rule on the additional reasons for the termination offered by Employer.
9. Issues on appeal. Claimant argues that the Board erred in concluding that Claimant's pattern of excessive short calls constituted just cause for dismissal. Claimant also argues that the Board erred in concluding that Claimant's conduct on August 25, 1999, constituted just cause. Employer responds that the Board's factual findings are supported by substantial evidence and that the decision is free from legal error.
10. Standard of review. The function of this Court on review of a 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 25, 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 (1965).
Title 29 Del. C. § 10142(d).
11. Just cause for dismissal. An individual is disqualified from receiving unemployment benefits when he is "discharged from the individual's work for just cause in connection with the individual's work. . . ." Just cause means wilful or wanton misconduct in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct. "Wilful" misconduct requires a showing of actual, specific or evil intent, whereas "wanton" misconduct requires a showing of heedless, malicious or reckless conduct but not a bad motive or an intent to cause harm. The employer bears the burden of showing that an employee was terminated for just cause.
Title 19 Del. C. § 3315(2).
Unemployment Ins. Appeal Bd. v. Martin, Del. Supr., 431 A.2d 1265, 1267 (1981). See also Coleman v. Dep't of Labor, Del. Super., 288 A.2d 285, 288 (1972).
Delaware Admin. for Regional Transit v. Jones, Del. Super., C. A. No. 94A-04-027, Babiarz, J. (Jan. 23, 1995) (Mem.Op).
Evans v. Tansley, Del. Supr., No. 86A-AU-9, Horsey, J. (Mar. 29, 1988) Order at 4-5.
12. Excessive short calls. Claimant argues first that the Board erred in finding that her pattern of short calls constituted just cause for termination. She asserts that, as a matter of law, Employer condoned Claimant's number of short calls during July and August and therefore could not terminate Claimant on the basis of short calls. In support of this contention, Claimant relies on Oddo v. Charcoal Pit.
Del. Super., 1989 WL 48581, Herlihy, J. (April 17, 1989).
13. In Oddo, the claimant, Mr. Oddo, and his employer agreed that claimant would work part-time until his annual wages met the allowable social security income cap for retired persons. For six months, all went well, but thereafter, Mr. Oddo and his supervisor began to disagree about scheduling. During their third argument, claimant was fired. This Court found that Mr. Oddo had not been terminated for just cause because the employer had agreed to accommodate him and the employer never warned him that continued inflexibility as to scheduling could lead to termination. Furthermore, Mr. Oddo's employer was satisfied with his job performance and only concerned about his scheduling flexibility.
Id.
14. In the case at bar, Claimant was warned about excessive short calls and signed a verification of the warning which indicated that she could be terminated if her performance did not improve. Furthermore, Employer in no way accommodated Claimant's performance level. In sum, Oddo does not support Claimant's position. The Court concludes that the Board did not err as a matter of law when it ruled that Claimant's short calls constituted just cause for dismissal.
See Lenfest Group d/b/a Suburban Cable v. Jeffers UIAB, Order at 3.
15. Claimant also challenges the Board's factual findings on short calls. Specifically, Claimant asserts that because Claimant's number of short calls for August decreased to 48, Claimant's termination was not for just cause. This argument ignores the fact that the acceptable number of short calls was 20 per month. Claimant was made aware of Employer's expectations about short calls in the June 3 counseling session and also in weekly team meetings. The Board explicitly accepted Gilcrest's testimony that he regularly addressed this topic with his team members because customer service was their sole responsibility and that he had discussed it with Claimant on one or two occasions between June and August 1999. There is substantial record evidence to support the Board's factual findings regarding short calls.
16. The Court concludes that the Board did not err when it concluded that Claimant's continued pattern of excessive short calls constituted just cause for dismissal.
Another indication of Claimant's poor performance was the length of her calls. Her average handle time was 1:55 minutes, compared to the 4 to 5 minutes normally required to resolve a problem or even answer a question. Cathy Joseph, manager, human resources, testified that the reports indicated that Claimant often answered calls but immediately put the caller on hold, often causing the caller to hang up. Because these calls lasted longer than 20 seconds, they were not recorded as short calls. In this way, Claimant took numerous calls without actually speaking to any customers. The Board determined that it did not need to reach this issue because it found just cause on the issue of short calls.
17. Claimant's conduct on August 25, 1999. Claimant argues that the Board erred in finding that Claimant's failure to answer the phone on August 25 was just cause for dismissal. The Court notes first that the Board found that the events of August 25 in combination with the pattern of short calls constituted wanton misconduct in violation of Claimant's duties. In regard to August 25, the Board pointed out that Claimant had been given three months to correct her performance problems and had not done so. Because Claimant had been warned that her performance was less than satisfactory, the Board found that her failure to plug in her earphones or even to even notice the blinking lights was wanton misconduct in violation of her duties and Employer's interests. Wanton misconduct means heedless, malicious or reckless misconduct and does not require a showing of bad motive or intent to cause harm.
Delaware Admin. for Regional Transit v. Jones, Del. Super., C. A. No. 94A-04-027, Babiarz, J. (Jan. 23, 1995) (Mem.Op).
18. In light of Claimant's awareness of Employer's concern about short calls, the Court concludes that the record evidence is legally adequate to support the Board's finding that Claimant's behavior on August 25 constituted wanton misconduct of her duties and Employer's expected standard of conduct.
Unemployment Ins. Appeal Bd. v. Martin, Del. Supr., 431 A.2d 1265, 1267 (1981).
For all these reasons, the Court concludes that the Board's decision denying Claimant's petition for unemployment insurance benefits must be and hereby is Affirmed.
It Is So ORDERED.