Opinion
C.A. No. 03A-11-005 WCC.
Submitted: April 1, 2004.
Decided: June 25, 2004.
Appeal from Unemployment Insurance Appeal Board. DENIED.
Lynetta Mathis, Wilmington, Delaware. Pro se.
Brian E. Lutness, Esquire. Wilmington, Delaware. Attorney for Appellees.
ORDER
This 25th day of June, 2004, after consideration of the appeal of Lynetta Mathis ("Appellant" or "claimant") from the October 15, 2003 decision of the Unemployment Insurance Appeal Board ("Board") and upon review of the briefs and the record below, it appears to the Court that:
1. Appellant was employed by Delaware Document Imaging ("DDI" or "Employer") as a first-shift supervisor. On October 23, 2002, the DDI office manager gave Appellant a written warning that indicated Appellant had been excessively late for a period of time. On April 25, 2003, the DDI site supervisor gave Appellant a second written warning. The site supervisor reported that Appellant arrived late for her shift 43 times from April 25, 2003 until July 11, 2003 when she received a final written warning. Appellant's final instance of lateness occurred on July 15, 2003 when she was three minutes late for work. As a result, the Employer terminated Appellant's employment on July 15, 2003.
DDI is a retail operation that provides imaging and duplicating services. DDI employees are required to be at their workstations between five and ten minutes prior to the start of their shifts and Appellant's shift was from 9:00 a.m. until 6:00 p.m. The Employer's policy provides that if an employee is late to work three times within the same month, the employee is subject to disciplinary action, including termination. However, the policy allows for a fifteen minute grace period for the first five incidents of lateness.
When Appellant commenced employment with DDI, the employer policy provided for an unlimited number of fifteen minute grace periods. Thereafter, in January 2003, the policy was revised and a limit was placed on the grace periods. The revised policy allowed an employee to be late for their shift five times within the fifteen minute grace period.
2. Following Appellant's termination, she filed for unemployment benefits. In a decision issued on August 7, 2003, the Claims Deputy from the Department of Labor disqualified Appellant from the receipt of benefits finding that the Employer had just cause for terminating Appellant's employment.
See Claims Deputy Decision at 1. The disqualification of benefits was premised on the statutory mandate that "[a]n individual shall be disqualified for [unemployment compensation] benefits: (2) [f]or 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." DEL. CODE ANN. tit. 19 Del. C. § 3315(2) (2003).
3. Thereafter, the Appellant appealed the Claims Deputy's decision to an Appeals Referee. The Appeals Referee presided over a hearing on September 3, 2003, where Michelle Ingram and Sean Mason testified on behalf of the Employer and Appellant testified and was unrepresented. The Referee found that the revised written policy regarding tardiness did not provide for any limit on the fifteen minute grace periods. On July 11, 2003 when Appellant was three minutes late for work, she believed she had a fifteen minute grace period and as a result, the lateness would not count against her. The issue before the Referee was whether Appellant's tardiness represented willful or wanton misconduct and provided the Employer with just cause to discharge Appellant from her employment. The Referee found that the Employer did not have just cause to fire Appellant because the Employer failed to follow its own policy allowing Appellant a fifteen minute grace period on the date of her last tardiness. Appellant had reason to believe that the fifteen minute grace periods were unlimited and the last incident of tardiness on July 11, 2003 was not wanton or willful. As a result, the Referee ruled that Appellant was entitled to unemployment benefits thereby reversing the Claims Deputy ruling.
See Appeals Referee Decision at 3.
See id. at 4.
See id.
4. Subsequently, Appellant appealed to the Board and on October 15, 2003, the Board held a hearing and rendered a decision. The Board explained that "Delaware law is well-settled that in cases involving ongoing absenteeism or some other type of misconduct which might constitute just cause for discharge, the claimant must be on notice that he is engaging in conduct which may put his job in jeopardy." The Board noted that Appellant knew she had a problem with lateness and DDI warned her several times that her conduct was unacceptable and was grounds for discharge. The final written warning to Appellant on July 11, 2003 stated in part, "one more infraction will result in immediate termination of your employment . . ." This warning was specifically directed to Appellant and superceded any general policy of the Employer. However, the Board noted that even if the warning did not, the Board disagrees with the Referee's finding that DDI "did not follow" its policy. On the contrary, the Board found that DDI did follow its policy, which provides that "continued latenesses will result in termination." In addition, DDI requires that "all employees are expected to be at work on time on a regular basis" and the fifteen minute grace periods are not available to employees on a routine basis. Rather, the fifteen minute grace period is for when employees are unavoidably detained when traveling to work.
Board Decision at 2 (citing Ortiz v. UIAB, 317 A.2d 100 (Del. 1974); Moeller v. WSFS, 723 A.2d 1177 (Del. 1999)).
Id.
Id.
Id.
Id.
The Board found that the record failed to demonstrate that Appellant was "unavoidably detained" on July 15, 2003. In addition, the Board found that following the final warning, Appellant was clearly on notice that her job was in jeopardy due to her attendance record. Consequently, the Board concluded that Appellant's lateness on July 15, 2003 was willful or wanton conduct and provided DDI with just cause for her discharge and as a result, Appellant is disqualified from the receipt of benefits. Appellant now appeals the Board's decision to this Court pursuant to title 10, section 3323 of the Delaware Code.
See id.
5. 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 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.
See General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Attix v. Voshell, 579 A.2d 1125, 1127 (Del.Super.Ct. 1989).
See Boughton v. Div. of Unemployment Ins. of the Dep't of Labor, 300 A.2d 25, 26-27 (Del.Super.Ct. 1972); Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239 (Del.Super.Ct. 1979).
See Oceanport Ind., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994); Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.Ct. 1986).
See Trotman v. Bayhealth Med. Ctr., Inc., 2000 WL 33109616 (Del.Super.Ct.) (quoting Messina v. Future Ford Sales, Inc., 1997 WL 358571 (Del.Super.Ct.)).
6. In order for a disqualification of unemployment compensation benefits, an employer must establish "just cause." To establish "just cause," an employer must demonstrate "a willful or wanton act in violation of either the employer's interests, or of the employee's duties, or of the employer's expected standard of conduct." It is difficult to imagine a case where there was a more blatant violation of the Employer's expectations than that of the Appellant. She was late 43 times in less than three months and it is clear that following the final warning on July 11, 2003, Appellant knew her job was in jeopardy due to her attendance record. As such, based upon the evidence before the Board, the Court must agree that there was sufficient, substantial evidence present to support their finding and that the Board's decision was free from legal error.
See DEL. CODE ANN. tit. 19 Del. C. § 3315 (2003).
Abex Corp. v. Todd, 235 A.2d 271, 272 (Del.Super.Ct. 1967); Masanque v. Playtex Apparel, Inc., 2002 WL 1352438, at * 2 (Del.Super.).
7. The Board's decision is therefore AFFIRMED for the reasons set forth above.
IT IS SO ORDERED.