Opinion
C.A. No. 09A-06-004-PLA.
Submitted: January 8, 2010.
Decided: March 2, 2010.
On Appeal from the Unemployment Insurance Appeal Board.
AFFIRMED.This 2nd day of March, 2010, upon consideration of the appeal of Walter Roshon ("Roshon") from the decision of the Unemployment Insurance Appeal Board ("the UIAB") denying unemployment insurance benefits, it appears to the Court that:
1. Appellee Appoquinimink School District ("the District") operates several public schools in the southern portion of New Castle County, Delaware, for which Roshon was employed as a Senior Technology Specialist for approximately five years, from August 2003 to September 2008. Upon commencing his employment, Roshon was provided with a copy of the District's Harassment Policy, which prohibits serious misconduct that would "interfere with a proper teaching, learning, or work environment even if it is not unlawful." The policy further defines behavior or comments that constitute harassment as those that a reasonable person would consider "unwelcome or offensive" or that would "create an intimidating or hostile work, teaching or learning environment" or that would "ridicule or demean a person or group based on race, color, national or ethnic origin, religion, creed, sex, sexual orientation, age, disability, or handicapped status, or other characteristics prohibited by the District's Equal Employment Opportunity Policy." Examples of behavior set forth in the policy include ethnic slurs, offensive or insulting comments, innuendoes or actions.
2. The facts giving use to this litigation are largely undisputed. On September 11, 2008, Roshon and several co-workers were eating lunch together at a location apart from school property. During the lunch, a discussion concerning language printed on rolling screen-savers ensued, whereupon Roshon stated to his co-worker Art Ridley ("Ridley"), "Do you know what would really get you in trouble is if you put `up yours nigger.'" Ridley, who is African-American, immediately responded by stating, "Don't say that word around me." Roshon explained that his statement was merely a reference to a line from the movie "Blazing Saddles" and that the comment was not specifically directed at Ridley.
3. Ridley, considering the comment to be neither a joke, nor benign, reported the incident to his direct supervisor and subsequently filed a formal complaint with the District's Human Resources Office. Following an investigation, the Director of Human Resources, Matt Fallis ("Fallis"), assembled Roshon and his supervisor for a meeting, during which Roshon admitted that he had made the offensive comment.
4. As a result of Ridley's complaint concerning the racial slur and Roshon's admission, the District determined that the comment was in violation of the District's harassment policy, and was of such severity that it warranted termination. The policy specifically allows for immediate termination of an employee who is found in violation of it. Roshon was therefore discharged on September 19, 2008.
5. Roshon filed for unemployment benefits with the Department of Labor ("DOL") following his termination, and the District contested his claim. Roshon maintained that his termination was not justified because, although he admittedly made the comment, he did not intend to harass or demean Ridley and he would not have made the statement if he had known Ridley would have been offended. A DOL Claims Deputy determined that Roshon was ineligible for benefits under 19 Del.C. § 3314(2) because the District had demonstrated just cause to discharge Roshon for violation of its Harassment Policy.
6. Roshon timely appealed this decision to the Appeals Referee, who, after hearing, upheld the Claims Deputy's determination that Roshon was disqualified from receiving unemployment compensation benefits because his employment was terminated for just cause. In her January 30, 2009 decision, the Appeals Referee found that Roshon's comment constituted a racial slur and a clear violation of the employer's harassment policy, noting that "such behavior is so egregious that it immediately arises to the level of willful or wanton misconduct as it shows a reckless disregard for the employer's interest and the claimant's expected standard of conduct."
7. Roshon filed an appeal of the decision to the UIAB, which conducted a second evidentiary hearing on May 5, 2009. Roshon presented new testimony from his therapist, Sandra Knauer, a Delaware licensed clinical social worker who had treated Roshon since February 2006. Ms. Knauer attributed Roshon's comment to the fact that he suffers from Obsessive Compulsive Personality Disorder ("OCPD"). She testified that his actions would therefore not manifest an intent to violate the District's policy, nor a reckless disregard of the policy. In her opinion, the claimant "didn't even realize what he said would offend anyone."
8. At the same hearing, the District's Director of Human Resources Matt Fallis pointed out that Roshon's own testimony was actually inconsistent with that of his therapist. In explaining the fact that his comment was a movie reference, Roshon stated that he nevertheless realized that he had "crossed the line." Fallis also testified that whether the conduct occurred on or off the District's property was not material to the termination decision because Roshon was aware of the District's Anti-Discrimination Policy, having himself initiated complaints under that same policy, and because Ridley had stated that Roshon's actions would in fact affect his relationship with Roshon.
9. Ridley's testimony at the hearing further confirmed that he was so disturbed by the racial slur that he discussed the incident with his immediate supervisor John Beeson, and also with Charles Longfellow, who was Roshon's supervisor. Ridley ultimately found Roshon's belated apology unacceptable to overcome the offense caused by his remark and therefore decided to file a complaint with Human Resources.
10. After considering the record below and the additional testimony presented at the hearing, the Board affirmed the decision of the Appeals Referee that the District had just cause to terminate Roshon based upon the single act of misconduct, which it characterized as exhibiting "a reckless disregard" for the effect that his words might have upon another person. In doing so, it concluded as follows:
In order to forestall the creation of a hostile work environment, for which the Employer could be held liable, the Employer had both the right and the obligation to protect its other employees from the bad acts of the claimant.
11. The Board was not persuaded by the social worker's testimony, finding it not to be particularly helpful because Ms. Knauer did not testify that the claimant's mental health condition caused him to make the remark, "whether causation is viewed under the counterfactual `but for' standard or a more lenient probabilistic evaluation." The Board discredited Roshon's argument that the incident occurred during an uncompensated period away from the Employer's premises, because it concluded that there was "a sufficient nexus between the off-site misconduct and job performance."
Decision of the UIAB (May 18, 2009), at 7 (quoting Warren v. Topolski, 2009 WL 1231099, at *3 (Del. Super. Apr. 30, 2009)).
Id. at 6 (quoting Bayard v. Kent County Motor Sales Co., Inc., 1988 WL31972, at *1 (Del.Super. Mar. 10, 1988)).
12. In addressing Roshon's contention that his remark represented a single incident of bad judgment, the Board correctly noted that the existence of just cause for dismissal depends entirely on the particular facts of each case. In this instance, it concluded that a school district has a justifiable expectation that is employee would "`conduct themselves in such a way as to command the respect and goodwill of the community,' including the minority community."
Id. at 7 (quoting Reitmeyer v. Unemployment Comp. Bd. of Review, 602 A.2d 505, 507 (Pa. Commw. Ct. 1992)).
13. Roshon filed an appeal of the UIAB's decision to the Superior Court on November 25, 2009. Roshon argues that the Board's decision should be reversed on the grounds that (1) the Board misconstrued the testimony of the clinical social worker Ms. Knauer and based its finding of wantonness on its "own conjecture" and ignored the fact that her testimony was "not contradicted in any way"; and (2) the incident occurred off the District's premises and had no nexus to job performance.
14. This Court's appellate review of decisions of the UIAB is limited. The Court's function is to determine whether the UIAB's findings and conclusions are supported by substantial evidence and free from legal error. The substantial evidence standard is satisfied if the Board's ruling is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court does not weigh evidence, decide questions of credibility, or engage in fact-finding in reviewing a Board decision. Where the UIAB has made a discretionary decision, the scope of the Court's inquiry includes examining the UIAB's action for abuse of discretion. A discretionary decision will be upheld absent an abuse of discretion in which the UIAB "exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice."
Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992); see also Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2003).
Anchor Motor Freight v. Ciabottoni, 716 A.2d 154, 156 (Del. 1998) (citation omitted).
Hall v. Rollins Leasing, 1996 WL 659476, at *2 (Del. Super. Oct. 4, 1996) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
See, e.g., Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991); Meacham v. Del. Dep't of Labor, 2002 WL 442168, at *1 (Del. Super. Mar. 21, 2002).
Funk, 591 A.2d at 225.
Nardi v. Lewis, 2000 WL 303147, at *2 (Del. Super. Jan. 26, 2000) (citation omitted).
15. Under 19 Del. C. § 3314(2), an individual is ineligible for benefits when discharged for "just cause." The employer bears the burden of proving the existence of just cause by a preponderance of the evidence. Just cause is found when an employee engaged in a "willful or wanton act or pattern of conduct in violation of the employer's interest, the employee's duties, or the employer's expected code of conduct." An employee's acts will be considered willful or wanton if he was "conscious of his conduct or recklessly indifferent to its consequences." An employee's conduct is considered "wanton" when it is heedless, malicious, or reckless, but not done with actual intent to cause harm." By contrast, "willful" conduct is that which "implies actual, specific, or evil intent." When an employer's policy against certain conduct is "clearly communicated" to the employee, a single incident of misconduct may justify termination. Thus, just cause exists when an employee has violated an employer's policy or rule, particularly when the employee received prior notice of the rule through a company handbook or other documentation. Furthermore, willful or wanton conduct can justify immediate dismissal without notice if sufficiently serious.
19 Del.C. § 3314(2).
Diamond State Port Corp. v. Ferguson, 2003 WL 168635, at *2 (Del. Super. Jan. 23, 2003).
See, e.g., Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986); Abex Corp. v. Todd, 235 A.2d 271, 272 (Del. Super. 1967).
Filanowski v. Port Contractors, Inc., 2007 WL 64758, at *3 (Del. Super. Jan. 2, 2007), aff'd, 931 A.2d 436 (Del. 2007) (quoting Mosley v. Initial Sec., 2002 WL 31236207, at *2 (Del. Super. Oct. 2, 2002)).
Tuttle v. Mellon Bank of Del., 659 A.2d 786, 789 (Del. Super. 1995).
Id.
Ross v. Zenith Prods., 2004 WL 2087955, at *3 (Del. Super. Sept. 17, 2004).
Mosley, 2002 WL 31236207, at *2.
Tuttle, 659 A.2d at 789.
16. Here, the Board's conclusion that Roshon was terminated for just cause is supported by substantial evidence. For an employee to direct a racial slur at an African-American co-worker clearly violates the District's policy prohibiting racially derogatory remarks that harass, disrupt, or interfere with business performance or create an intimidating, offensive, or hostile environment. Roshon has not contested that he received notice of the District's harassment policy. While the District did not present direct evidence that Roshon had actual or constructive notice of the policy, he had previously filed complaints under the same policy, and Roshon did not contradict Fallis' testimony that he was notified of the District's prohibition. In concluding that Roshon's racial slur was wanton, malicious, or reckless, the UIAB discounted the testimony of Roshon's expert, finding her testimony "not particularly helpful." Her conclusion that Roshon's remark was not intended to be offensive because of his obsessive compulsive personality disorder was not persuasive. The Board properly exercised its discretion in not accepting Ms. Knauer's expert testimony, and it was not bound to credit her opinions merely because they were not contradicted by any evidence presented by the District. The Board was entitled to accept those portions of the testimony that were reasonable and credible, and was entitled to disregard any evidence, including the opinion of an expert witness, if it was unreasonable or lacking in foundation. The Board was not required to accept Ms. Knauer's opinion as a clinical social worker if her methodology was not sound or reliable, and moreover, as the trier of fact, they were entitled to disregard her opinion entirely, even if it was not contradicted by any other evidence. In this case, the Board simply concluded that Roshon's OCPD diagnosis did not necessarily cause him to make the slur, nor did it excuse his behavior. Resolving disputes of facts and credibility is the exclusive province of the UIAB, which has sole discretion to discount the testimony of any witness it does not deem to be believable.
Roshon's reliance upon Amalfitano v. Baker, 794 A.2d 575 (Del. 2001), as support for his contention that Ms. Knauer's uncontradicted testimony must be considered conclusive is misplaced. The uncontradicted testimony in the Amalfitano case consisted not only of plaintiff's subjective testimony about her injuries and medical expert testimony to support her complaints, but also objective medical testing that confirmed both the subjective evidence of injury and the expert's opinions. Here, Ms, Knauer's testimony linking claimant's OCPD to his use of racial slur is not only not the opinion of a medical expert, but so unscientific and illogical that even a lay person would question the soundness of her opinion.
17. Based upon its factual findings, the Board properly determined that the District had just cause to terminate Roshon. The Court will not intrude on the UIAB's role as trier of fact by disturbing its credibility determinations or factual findings.
18. Roshon's wanton misconduct, consisting of behavior that was directly against the District's interests was sufficiently severe that termination was justified. Derogatory racial comments in the presence of an African-American co-worker, who was sufficiently offended to direct that Roshon not use that word around him, have no place in any employer's environment, let alone that of a public school. As the Board noted so eloquently in its decision:
See Poore v. Unemployment Ins. Appeal Bd., 1994 WL 466022 (Del. Super. Aug. 3, 1994), where the Court upheld the Board's decision denying benefits to a claimant who use a racial slur in a single conversation. The Board concluded that the claimant's post-partum depression and mistreatment at work were explanations that "do not rise to the level of proof required to justify the use of a racial epithet." Id. at *3.
Racial remarks, even if not malevolent in intent, tend to create an atmosphere where the evaluation of worth of individuals becomes tainted by their group identification rather than determined by their personal merits. It is a road down which most employers cannot afford to travel and down which a public employer should never venture.
Decision of the UIAB, at 7.
Cultural, racial, or ethic slurs are explicitly listed in the District's Policy as examples of prohibited behavior because they have no place in a public school environment even if uttered by a non-instructional employee. The District's zero-tolerance response to Roshon's misconduct was more than justified under the circumstances.
19. For all of the foregoing reasons, the decision of the UIAB is hereby AFFIRMED.
IT IS SO ORDERED.