Opinion
C.A. No. 07A-08-002-RFS.
Submitted: February 27, 2008.
Decided: May 30, 2008.
Mr. Ian Moore Ellendale, DE.
James W. Semple, Esquire Morris James LLP, Wilmington, DE.
Dear Counsel:
This case comes before the Court on appeal from the Unemployment Insurance Appeal Board (the "Board"), which reversed an appeal Referee's decision to grant Ian Moore ("Claimant") unemployment compensation benefits. The Board's decision is reversed and the case is remanded.
AGENCY PROCEEDINGS
On April 25, 2007, Claimant applied for unemployment benefits. On May 16, 2007, the Claims Deputy rejected Claimant's unemployment benefits application under Title 19 of the Delaware Code, Section 3314(2). Subsequently, on May 22, 2007, Claimant appealed to the Appeals Referee. On June 11, 2007, the Appeals Referee determined that Claimant was entitled to unemployment benefits because the employer failed to prove just cause for terminating Claimant by having an uneven disciplinary policy. Employer appealed the Referee's decision to the Board. On August 1, 2007, the Board reversed the decision of the Appeals Referee. This is a pro se appeal by Claimant.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The purpose of an appeal is to determine whether the agency's decision is supported by substantial evidence and free of legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence is "more than a scintilla, but less than a preponderance." The reviewing court does not weigh the evidence, determine questions of credibility, or make its own factual findings.
Alfree v. Johnson Controls, 1997 Del. Super. Lexis 474 at *14 (Del.Super. Sept. 12, 1997) (citing General Motors v. Freeman, 164 A.2d 686 (Del. 1960)).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (D el. 1994).
Olney v. Cooch, 425 A.2d 610, 614 (D el. Super. 1981).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
FACTS
Utility Lines Construction Service ("Employer") employed Claimant as a groundsman installing underground and overhead electric wire from November 16, 2005 until April 24, 2007.On February 26, 2007, Claimant was absent and did not notify the office about his absence until 10:00a.m. The following day Claimant received a verbal warning. A Performance Notice, number 261786, allegedly reflected this event. Although referenced in the records, the document was not included in the appendix. Claimant said he did not receive it until these proceedings began.
On April 2, 2007, Claimant notified Jimmy Reed, his superior, that he desired to use a vacation day to attend a baseball game in Philadelphia. Although the time off was approved, Reed did not make a record of it. Consequently, Claimant lost pay for that day.
During this same time frame, Claimant's car was stuck by another worker's car in the Employer's parking lot. The Employer promised to pay for repairs, but has not followed through.
On April 17, 2007, Claimant was absent and did not call the office. On April 20, he received and acknowledged a written warning. This was documented in another Performance Notice, number 200308. It stated that the next violation would lead to a termination. He was suspended on April 23, 2007 for the April 17, 2008 infraction. On April 24, 2007, Claimant was the first person to arrive at work at 7:07 a.m. This was documented in another Performance Notice, number 261785. The usual reporting time is 7:00 a.m. and he was terminated as a result. However, similar action was not taken against other late employees, including another crew member and a secretary who showed up after him. Claimant testified that he parked his car at the job site at 7:02 a.m. and laced his safety boots which was necessary for work and then left his car at 7:07 a.m.
Before termination in September 2006, Claimant needed hernia surgery, and the Employer approved medical leave. However, when Claimant was billed, the insurance company denied coverage. The carrier claimed his Employer advised Claimant was not employed as of the day before the operation. However, with considerable assistance from the Delaware Insurance Commissioner's Office, the insurance was reinstated, after a prolonged effort which required Claimant to pay for the premium to reinstate the policy as a new employee. Because of the Insurance Commissioner's involvement and other events, Claimant believes that Employer was prejudiced against him.
DISCUSSION
Did the Employer have just cause to terminate Claimant? An individual discharged for just cause is disqualified for benefits. The pertinent law provides:
An individual shall be disqualified for 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 (emphasis added).
Just cause for termination is defined as, "a wilful or wanton act in violation of either the employer's interest, of the employee's duties, or of the employee's expected standard of conduct." One acts wilfully when he acts voluntarily, intentionally, and deliberately. One must either be conscious of his conduct or recklessly indifferent of its consequences. The act "need not necessarily connote bad motive, ill design, or malice." An employer has the burden of proof to establish just cause.
Krouse v. Cape Henlopen Sch. Dist., 1997 D el. Super. Lexis 502, at *7 (Del.Super. Oct. 28, 1997); Avon Pro ducts, Inc. v. Wilson, 513 A.2 d 1315, 1317 (D el. Super. 1 986); Accord Abex Corp. v. Todd., 235 A.2 d 271, 2 72 (De l. Super. 19 67).
Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1267 (Del. 1981).
Coleman v. Department of Labor, 288 A.2 d. 285, 2 88 (De l. Super. 19 72).
Evans v. Tansley, 1988 Del. Lexis 83, at *5 (Del. Mar.29, 1988).
In Vann v. Town of Cheswold, the Delaware Supreme Court decided that an employee's right to unemployment compensation is a "property-like right." Employers contribute to the unemployment compensation program for workers and employees have a right to demand compensation when unemployed. Delaware's public policy protects workers who lose jobs through no fault of their own. When this right is exposed to forfeiture, the Court requires "an especially good reason and demand heightened scrutiny of the proffered reason."(Emphasis added). In doing so, the Delaware Supreme Court differentiated just cause to justify termination of employment contracts from just cause in unemployment compensation cases. In the latter situation, higher scrutiny of the proffered reasons is required. Other jurisdictions recognize this distinction, as well. Even where less scrutiny is required in the contract context, Vann emphasized that "the reason for termination must be job-related and cannot simply be a trumped up pre-textual excuse for termination."
Vann v. Town of Cheswold, 2008 W L 5166 59, at *3 (D el. Feb. 27, 2008).
Id.
Barron v. Pythress, 466 S.E. 2d 665 (Ga.Ct.App. 1996) ("If an employer . . . wishes to be arbitrary about such matters, Georgia la w allows it nearly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned."); Batts v. Review Bd. of Indiana Employment Sec. Division, 385 N .E.2d 11 74 (2d Dist. 1979); See also 81 CJS § 397.
Id.
Along this vein, an employer has the burden to prove just cause and the employee's misconduct. An employer "has to prove that the alleged misconduct was in fact the actual reason for the employee's discharge." A Pennsylvania state court reversed a Board's decision denying unemployment benefits because it found that "the actual reason for Employer's discharge of claimant was not her violations of the rule on vacation time, but rather, Employer's desire to eliminate an unneeded secretarial position on its staff."
76 Am.Jur. 2d Unemployment Compensation § 71; See also Landy Zeller v. Com. of Pa. Unemployment Compensation Bd. of Review, 531 A.2d 1183, 1185 (Pa.Commw.Ct. 1987)
Id.
Claimant argues that he was discharged without "just cause" because he was targeted for unfair disciplinary treatment resulting from his insurance and other claims. He argues the seven minute tardiness on April 23, 2007, was a mere pretext to eliminate a disagreeable worker. Claimant points to the discrepancy with the written document allegedly reflecting the February warning. It appears to be out of sequence as shown in this passage:
See Jackson v. Unemployment Ins. Appeal Bd., 1986 WL 11546 (Del.Super. Sept. 24, 1986) (Superior Court may characterize claimant's arguments to comport with the la w to exhibit leniency toward a pro se litigant so that his case may be fully and fairly heard.)
IAN MOORE: I don't see that this is going to be put in my file. Another question, the 20[th] the serial number is 200308, the 23[rd] or the yes when I was terminated 261785 is the next serial number. For this verbal warning it's 261786. One later than two months previous write up how is that concurrent? That was written up, I believe, I was terminated. . .
Hr'g. Tr. 28, June 11, 2007.
On the other hand, Employer argues that the Board's decision was supported by substantial evidence, and the decision was free from legal error. However, the series of events testified to by Claimant, such as apparent uneven discipline, insurance, car, and vacation day disputes, are essentially admitted. The out of order number of the document allegedly confirming the February warning is puzzling. If in correct sequence, it would have been done after the April 24th event. The Board felt, legally, that it had to accept the proffered reason that Claimant was late and had been warned. No further scrutiny was given because Claimant was not a member of a protected class, based on gender, sex, age, or religion. However, the legal standard is not so narrowly confined. In light of Vann, the Board failed to give the heightened scrutiny to the proffered reasons and this is legal error.
The Employer cites Ward v. Phoenix Steel to support the argument that disparate treatment is irrelevant. However, Ward does not advance this position. The claimant in Ward was involved in a fight at the job site with a coworker. The misconduct is obvious. Nonetheless, the Ward court was "disturbed" that different disciplinary actions were taken against the participants without adequate explanation on the record. The Court said ". . . In addition, the Board failed to discuss the comparatively lenient sanction imposed on Brooks (a two week and one day suspension). Though the disparate treatment may have been justified by the fact that Brooks, unlike claimant, did not wield steel weapons, a more complete and fair administrative record should include this or similar distinctions." Id. (Emphasis added).
Ward v. Pheonix Steel, 1986 W L 5861, at *2 (Del.Super. May 1, 1986).
Here, the Board also committed a factual error when it said the record failed to show that others came late and were not disciplined. Another crew member came after Claimant (as well as a secretary). As the crew's performance depended upon all being present, the Employer's work cannot be seen to have been adversely affected in any manner.
Tr. at 31, 36.
CONCLUSION
Considering the foregoing, the Board's decision must be reversed and remanded for further proceedings consistent with this opinion. In making the decision, the Board is required to evaluate the proffered reasons for discharge — tardiness — against the background of other events which is part of the heightened scrutiny required before a worker's right to compensation can be forfeited.
IT IS SO ORDERED.