Opinion
C.A. No. 02A-05-004 CHT.
Submitted: October 16, 2002. Decided: December 9, 2002. Reopened: May 1, 2003. Argued: November 24, 2003.
Decided: November 25, 2003.
On the Employee's Appeal from the Decision of the Unemployment Insurance Appeal Board
Aida L. Orona, pro se, 300 Westwind Road, Bear, DE 19701.
Jennifer Gimler Brady, Esquire, POTTER, ANDERSON CORROON LLP, 1313 North Market Street, Hercules Plaza, Sixth Floor, P.O. Box 951, Wilmington, DE 19899-0951, Attorney for the Defendant.
Michael N. Petkovich, Esquire, and Daria E. Neal, Esquire, JACKSON LEWIS LLP, 1156 5th Street N.W., Suite 250, Washington, D.C. 20005, Of Counsel.
Stephani J. Ballard, Esquire, Deputy Attorney General, Department of Justice, Carvel State Office Building, 820 North French Street, Wilmington, DE 19801.
OPINION AND ORDER
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
Aida Orona was employed as a housekeeper by the Little Sisters of the Poor ("LSOP") at that organization's Jeanne Jugan Residence, a long term care facility for the elderly. She had been so employed since 1995. The instant controversy arises out of the performance of her duties on December 10, 2001.
The facts are the same as were stated in the Court's opinion issued by December 9, 2002. However, for the sake of clarity and to the extent necessary, they will be repeated here.
On that day, Ms. Orona entered the room of one of the facility's residents, William Clark, in order to clean it. Mr. Clark departed the room to allow her to perform her duties. However, before he left and because of his suspicions that Ms. Orona had previously stolen small items of personalty from his room, Mr. Clark intentionally left a "toothpaste squeezer" out on the sink. His stated rationale for doing so was to resolve his suspicions regarding Ms. Orona. When he returned a few minutes later, the aforementioned item was missing. Mr. Clark then confronted Ms. Orona, who by that time was no longer in his room but was down the hall performing other duties. She denied knowing what he was talking about and told him she thought that he was drunk.
Ultimately, the human resources director, Mr. Andy Rodriguez, was notified and discussed the incident with Ms. Orona. Ms. Orona apparently admitted to Eileen Fox, LSOP's Supervisor for Housekeeping and to Mother Superior Edward Marie that she had made the comments attributed to her by Mr. Clark. Those comments were deemed to be in direct violation of the facility rules as set forth in the employee handbook, which specifically stated that any infraction could result in discipline up to and including termination. Ms. Orona was subsequently discharged on December 17, 2001 because of the incident with Mr. Clark.
A report of the incident was submitted to the Delaware Department of Health and Social Services ("DHSS") on December 12, 2001, as required by law. A DHSS representative conducted an investigation of the incident and determined that sufficient evidence had been developed to warrant further action. The matter was then referred to the Medicaid Fraud Control Unit within the Attorney General's office.
Long term care facilities are required to report incidents of abuse towards residents pursuant to 29 Del. C. § 7971.
The matter was referred to the Medicaid Fraud Unit since the incident involved theft and abuse in a long term care facility. It is not clear from the record what, if anything, happened as a result of that referral.
Within one week of her termination, Ms. Orona filed a petition seeking unemployment benefits. The claim was denied by the claims deputy pursuant to 19 Del. C. § 3315, because it was determined that Ms. Orona had been discharged for just cause. Ms. Orona appealed the decision and a hearing occurred on February 19, 2002 before an appeals referee. The appeals referee determined that Ms. Orona had been discharged without just cause and was entitled to unemployment benefits. LSOP appealed to the UIAB.
Ms. Orona was placed on the Adult Abuse Registry for a period of two years starting January 3, 2002 as a result of the DHSS investigation. She claims that this registration has severely impeded her ability to gain future employment given her limited skills and language difficulties. However, the decision to do so was not a part of the decision rendered by the UIAB and is therefore not within the scope of Ms. Orona's appeal to this Court.
A hearing was held before the UIAB on April 17, 2002. The UIAB reversed the referee's decision, finding that Ms. Orona had in fact been discharged from her employment with LSOP for just cause. As a result, she was, as the claims deputy had initially determined, disqualified from the receipt of unemployment compensation benefits. Ms. Orona then appealed that decision to the Superior Court on July 15, 2002.
Ms. Orona's appeal before this Court is based on the contention that her termination was not for "just cause" because it was based on the "here say" [sic] testimony of a 94 year-old man, which she deemed to be highly unreliable. She goes on to argue that the UIAB committed legal error by proceeding with the hearing on April 17, 2002 in her absence after it had denied a continuance that she had timely requested. LSOP responded on August 7, 2002, contending that the UIAB's decision was supported by substantial evidence and that Ms. Orona was terminated for just cause. In addition, the UIAB argued that Ms. Orona had previously admitted to calling the resident crazy and stating that he drank too much. Therefore, by her own admission, she had violated the LSOP policies against abuse of residents.
LSOP's answer does not address the portion of Ms. Orona's appeal that alleges that the Board committed legal error.
In an order dated December 9, 2002, this Court remanded Ms. Orona's case back to the UIAB for a supplementation of the record. Since the UIAB denied Ms. Orona's request for a continuance, the reasons for that denial should have been made a part of the record so that this Court could properly assess whether the agency had properly exercised its discretion. In response to the remand, the UIAB has provided the Court with an explanation for its actions in that regard. That which follows is the Court's response to the issue so presented on remand and ultimate issues on appeal.
See Letter from Stephani J. Ballard, Counsel to UIAB, January 16, 2003 and Aff. of Roy Newlin, Chairman, UIAB.
DISCUSSION
In reviewing a decision of the Unemployment Insurance Appeal Board, this Court is bound by its findings if supported by substantial evidence and absent abuse of discretion or error of law. "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It "is more than a scintilla and less than a preponderance" of the evidence. The Court's role is merely to determine if the evidence is legally adequate to support the agency's factual findings.
Ohrt v. Kentmore Home, Del. Super., C.A. No. 96A-01-005, Cooch, J. (Aug. 9, 1996) (Mem. Op. at 8).
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); and Streett v. State, 669 A.2d 9, 11 (Del. 1995).
City of Wilmington v. Clark, 1991 WL 53441, at *2 (Del.Super.).
Brooks v. Swales Assoc., Inc., 1997 WL 717775, at *1 (Del.Super.) citing 29 Del. C. § 10142(d).
The first issue to be addressed by this Court is Ms. Orona's contention that the UIAB erred as a matter of law by conducting the April 17, 2002 hearing in her absence after having denied her request for a continuance. A resolution of this issue obviously impacts whether the decision of the UIAB was supported by substantial evidence in the record and/or constituted an abuse of discretion. In this regard, UIAB Rule B states in relevant part:
All parties are required to be present for a hearing at the scheduled time. Any party who is not present within 10 minutes after the scheduled time for hearing shall be deemed to waive his right to participate in said hearing and the hearing shall commence without the presence of said party.
Del. Dept. of Labor, U.I.A.B. Rules and Regulations, Rule B (1979). These rules and regulations were promulgated pursuant to the authority of 19 Del. C. § 3321(a).
There is no requirement that all parties be present for the hearing to commence. The Board is in fact required to start the hearing despite the absence of one or more of the parties after waiting ten minutes.
On April 12, 2002, Ms. Orona requested a postponement of the April 17th hearing. The reason given was that she had permanently moved from Delaware to Florida and did not have sufficient time or financial resources to return to Delaware for the April 17th hearing. Ms. Orona's request was sent by facsimile transmission to Helen McClure, a secretary employed by the UIAB, on April 12, 2002.
Ms. Orona attached to her Case Information Statement a copy of the letter and fax confirmation sheet used to request the postponement. Although Ms. Orona admits that the UIAB responded and denied her request, there is no mention in the record by either party of why the request was summarily denied at that time. Ms. McClure was present at the April 17th hearing, but did not give testimony regarding this matter.
On April 17, when Ms. Orona failed to appear within ten minutes of the time scheduled for her hearing, Stephani J. Ballard, Esquire, counsel for the UIAB noted that Ms. Orona had requested a postponement due to her inability to return to Delaware in time for the hearing and that the request had been denied. Again, no reason for the denial was given nor is there any indication that any rationale was ever later provided to Ms. Orona. Ms. Ballard then indicated that the hearing would proceed in Ms. Orona's absence.
A discretionary ruling by a trial court or administrative body on a motion for a continuance will not be set aside unless that decision is unreasonable or capricious. In this case, the UIAB denied Ms. Orona's request to postpone the hearing without providing any basis for its decision.
In Re Kennedy, 472 A.2d 1317, 1331 (Del. 1984), cert. denied, Kennedy v. Board on Professional Responsibility of Supreme Court of Delaware, 467 U.S. 1205 (1984).
In its response to the order of remand, the UIAB cites Board Rule A, which states in pertinent part:
UIAB Rules and Regulations (1979). The Board's Rules and Regulations have been revised, effective January 11, 2003, but any changes are inapplicable to this case.
. . . Any other request made after six days prior to the date of hearing shall be made directly to the Board Chairman. In such case, a postponement for rescheduling shall be granted only for emergency circumstances such as death in the family or serious illness.
Mr. Roy Newlin, on behalf of the Board, indicates that he denied Ms. Orona's request for postponement because Ms. Orona's request met the "emergency circumstances" criteria of Rule A. Furthermore, since the Board holds hearings every Wednesday with a 14-day notice, a postponement still would not have solved Ms. Orona's problem and would have simply caused undue delay to a resolution of the case.
Aff. of Roy Newlin, at 2. The Court notes that even if revised Rule A were applied, Ms. Orona still would have been denied a postponement because her move to Florida was not an "unanticipated emergency."
Given the explanation, the Court finds that the Board's decision to deny Ms. Orona's request did not constitute an abuse of discretion. There has been no evidence presented that Ms. Orona moved to Florida unexpectedly. To the contrary, the notice for the hearing was sent on April 2, 2002 and Ms. Orona did not request a postponement until April 12, 2002, which was 10 days later. It therefore appears that the decision was appropriate under the circumstances.
Having resolved this issue, the Court will turn to the issues originally presented on appeal by Ms. Orona. Specifically, left to be determined is whether the UIAB's decision that Ms. Orona was discharged for just cause, and therefore not entitled to unemployment benefits, was supported by the substantial evidence and did not constitute an abuse of discretion or error of law.
Title 19 Del. C. § 3315(2) provides, in pertinent part, that "[a]n individual shall be disqualified for benefits. . . . if the individual was discharged from the individual's work for just cause . . ." An employer has the burden of proving "just cause" by a preponderance of the evidence before the employee may be disqualified from benefits. As noted in Tuttle v. Mellon Bank of Delaware, "just cause" for discharge is defined as a wilful or wanton act in violation of either the employer's interest, the employee's duties, or the employee's expected standard of conduct. "Wanton" conduct is that which is heedless, malicious, or reckless, but not done with actual intent to cause harm. On the other hand, "wilful" conduct is that which implies actual, specific, or evil intent. Furthermore, a single incident of misconduct may justify termination after a company policy against that conduct is clearly communicated to an employee.
19 Del. C. § 3315.
Pavusa v. Tipton Trucking Co., 1993 WL 562196, at *3 (Del.Super.) (citations omitted).
659 A.2d 786, 789 (Del.Super. 1995) citing Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986); See also Abex Corp. v. Todd, 235 A.2d 271 (Del.Super. 1967).
Id.
Id. citing Farmer v. E.I. Du Pont De Nemours and Co., 1994 WL 711138, at *3 (Del.Super.).
Id. at 790 citing Pavusa, supra note 17.
Since the record reflects that Ms. Orona was aware of LSOP's policies regarding abuse of residents, the Clark incident would be sufficient grounds for termination notwithstanding her alleged inability to understand the English language. First, she acknowledged receipt of the policies in question. Second, she attended a seminar explaining the same policies. Lastly, there is no indication that she ever complained that she did not know of or understand LSOP's policies against patient abuse.
Moreover, the Board found the testimony of Mr. Clark to be credible. The Board's decision that termination was justified was also based upon Ms. Orona's admission to LSOP administrators and the investigation report submitted by DHSS, which confirmed the abusive conduct of Mr. Clark. Nor did the Board, as noted earlier, abuse its discretion by conducting the hearing in Ms. Orona's absence without hearing her version of the facts. As the Delaware Supreme Court has decreed, "[i]t is within the province of the Board, not this Court, to weigh the credibility of witnesses and to resolve conflicts in testimony." That is exactly what the Board did in this case. Ms. Orona's behavior, as determined by the Board, clearly rises to the level of the kind of conduct which is prohibited in the LSOP Employee Handbook.
Starkey v. Unemployment Insur. App. Bd., 340 A.2d 165, 166 (Del.Super. 1975), aff'd 364 A.2d 651 (Del. 1976) citing Coleman v. Dept. of Labor, 288 A.2d 285 (Del.Super. 1972).
Given the foregoing, the Court finds that there was also substantial evidence in the record to support the Board's decision that Ms. Orona's discharge was for "just cause." That decision is also free from legal error and does not constitute an abuse of discretion.
CONCLUSION
Based upon the foregoing, the decision of the Unemployment Insurance Appeal Board must be, and hereby is, affirmed.