Opinion
C.A. No. 00A-07-010
Date Assigned: January 17, 2001
Decided: May 4, 2001
On The Employee's Appeal from the Decision of the Unemployment Insurance Appeal Board.
James W. McMahon, pro se.
Wendy K. Voss, Esquire. Attorneys for the Appellee.
OPINION AND ORDER FACTS AND PROCEDURAL POSTURE
This matter is before the Court from the decision of the Unemployment Insurance Appeals Board in favor of the Employer, Kline Transportation Co. Inc. The Employee, James W. McMahon, was fired from his job as a "yard jockey" with Kline Transportation on February 3, 2000. The reasons stated for his termination were that he refused to report for his shift, refused to take a drug test and because he used profanity in addressing his supervisor.
Mr. McMahon's duties as a "yard jockey" consisted of moving vehicles on the property of the Sunoco site in Marcus Hook, PA.
At approximately 6:30 p.m. on February 2, 2000, Mr. McMahon's girlfriend, Marion Simms, called Mr. McMahon's supervisor at Kline Transportation, Linda Kline. Ms. Simms reported that Mr. McMahon was ill and would not be reporting that evening for his scheduled 11:00 p.m. to 7:00 a.m. shift. Mrs. Kline informed Ms. Simms that Mr. McMahon would be required to call back personally to report off; which he did. During the course of the ensuing exchange, Mrs. Kline expressed her concerns over Mr. McMahon's absentee record. In response to these stated concerns, Mr. McMahon conceded that he would report to work that evening despite his illness.
It was also during that conversation, Mrs. Kline noticed that Mr. McMahon's speech was somewhat slurred. This slurred speech raised some suspicion on her part that Mr. McMahon was not ill, but was under the influence of alcohol. As the conversation came to a close, Mrs. Kline decided to act on her suspicions and informed Mr. McMahon that he would be required to take a test for the purposes of determining if he was under the influence of drugs and/or alcohol the next morning. Mr. McMahon responded by addressing Mrs. Kline in a profane and derogatory manner.
Mr. McMahon failed to report to work for his shift that night or for the drug/alcohol test the following day, February 3. He did telephone Kline Transportation on February 3, and this time spoke with Mr. Kline, who informed him that he was fired and to return any company issued property.
Mr. McMahon subsequently filed for unemployment compensation benefits. The Claims Deputy determined that Mr. McMahon was fired for just cause and disqualified him from receiving unemployment compensation benefits. Following a hearing on May 17, 2000, the Appeals Referee affirmed the ruling of the Claims Deputy. This matter was then presented to the Unemployment Insurance Appeal Board on July 5, 2000. In affirming the Appeals Referee's decision, the Board found that because Mr. McMahon's failure to report to work on February 2 and his failure to submit to the drug/alcohol test on February 3, was willful or wanton misconduct and was therefore just cause for his dismissal. Mr. McMahon now appeals to this Court.
Mr. McMahon contends that he was terminated before he was scheduled to report to work on February 2, not on February 3. Consequently, he was under no duty to report for work on February 2 and was not under a duty to submit to the drug/alcohol test on February 3. Mr. McMahon further alleges that Kline Transportation violated various federal Department of Transportation regulations.
Kline Transportation contends that there is substantial evidence to support the Board's decision and that the Board's decision contains no legal error. In addition, it argues that the issue concerning the alleged DOT regulation transgressions were not presented to the Board and were not otherwise addressed by that body. As a result, they cannot be addressed on appeal to this Court.
DISCUSSION
In reviewing a decision of the Unemployment Insurance Appeals Board, this Court is bound by that decision if, absent an abuse of discretion or an error of law, the decision is supported by substantial evidence. Ohrt v. Kentmore Home, Del. Super., C.A. No. 96A-01-005, Cooch, J. (Aug. 9, 1996) (Mem. Op. at 8). "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Anchor Motor Freight v. Ciabattoni, Del. Super., 716 A.2d 154, 156 (1998); and Streett v. State, Del. Supr., 669 A.2d 9, 11 (1995). It "is more than a scintilla and less than a preponderance" of the evidence. City of Wilmington v. Clark, Del. Super., C. A. No. 90A-FE-2, Barron, J. (March 20, 1991) (Mem. Op. at 6).
The Board's decision that Mr. McMahon was fired for just cause was based upon at least three findings of fact. First, it found that Mr. McMahon addressed his supervisor using profanity over the telephone. Second, Mr. McMahon did not report for his scheduled shift on February 2 and failed to take a drug/alcohol test as directed on February 3. A review of the record reveals that these findings are supported by substantial evidence. Accordingly, the Board's decision must therefore be upheld absent any error of law.
Mr. McMahon argues that the Board's decision was legally flawed because he was fired on February 2 prior to the start of his shift and prior to the time and date of the drug/alcohol test. He therefore contends that Kline Transportation had no basis to discharge him. In support of his claim, Mr. McMahon cites to several areas of the hearing transcripts where Kline Transportation representatives refer to "the evening" that he was fired. He apparently argues that these statements prove that he was fired on February 2.
While the Board's decision does not state any conclusions relating to the date upon which Mr. McMahon was terminated, it is apparent that he was not fired until Mr. Kline orally informed him of his termination during the course of their telephone conversation of February 3. This conclusion is implicit in the Board's finding that Mr. McMahon was fired in part for his failure to report for work on February 2 and in part for his failure to take the drug/alcohol test on February 3. Therefore, the noted inaccuracies in the witnesses' statements do not constitute legal error.
Finally, the Court agrees with Kline Transportation regarding the alleged violations of DOT regulations. These charges were not raised below. Nor are they germane to the issue of whether the Board committed error, abused its discretion, or whether its decision is supported by substantial evidence. It is inappropriate for this Court to first address these matters at this point in time. Hubbard v. Unemployment Ins. App. Bd., Del. Super., 352 A.2d 761, 763 (1976).
CONCLUSION
Based upon the foregoing, the Court must find that the Board's decision is supported by substantial evidence in the record and the Board neither erred as a matter of law or abused its discretion. Therefore, the decision of the Unemployment Insurance Appeal Board must be, and hereby is, affirmed.