Opinion
C.A. No. 03A-12-001 CHT.
Submitted: June 15, 2004.
Decided: September 17, 2004.
On the Employee's Appeal from the Decision of the Unemployment Insurance Appeal Board.
Aniea T. Ross, pro se, New Castle, DE.
J.R. Julian, J.R. JULIAN, P.A., Wilmington, DE, Attorney for the Defendant, Zenith.
Mary Paige Bailey, Esquire, Deputy Attorney General, Department of Justice, Wilmington, DE, Attorney for U.I.A.B.
OPINION AND ORDER
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
Aniea Ross began her employment with Zenith Products Corporation on October 1, 2001 as a second shift shipping office clerk. On September 28, 2001, Ms. Ross was provided a copy of Zenith's Employee Handbook, which contained the company's policies against harassment in the workplace. She was also provided a check list indicating that various behavior, including insubordination and abusive behavior, could be grounds for immediate dismissal. Ms. Ross signed both forms acknowledging she had read and understood their contents.
During the course of her employment with Zenith, Ms. Ross had been reprimanded and orally warned for violating various company procedures. Consequently, on July 9, 2003, Desmond Holley, Ms. Ross' immediate supervisor, and Matt Kikut, the Department Manager, met with Ms. Ross concerning recently reported violations. The purpose of the meeting was to address Ms. Ross' repeated unauthorized use of the back shipping department entrance, repetitive use of open-toed shoes, and unauthorized entry and use of Mr. Kikut's office. Ms. Ross was informed that any further noncompliance with company policy would result in a demotion.
Mr. Kikut filed a memo with Zenith Human Resources documenting the purpose of the meeting. Allegedly, a Zenith Security Officer had observed Ms. Ross wearing "flip-flops" after being warned, entering through the back shipping department door, and entering Mr. Kikut's office, without permission, on June 8, 2003.
On July 18, 2003, Mr. Holley informed Ms. Ross that there had been more reports made regarding her wearing inappropriate footwear and she was being moved out of the office effective Monday, July 21, 2003. As a result, Ms. Ross was demoted to the position of bill puller. Ms. Ross believed Officer Sybil Clayton, a Security Officer, was the person who made the reports concerning the violations. Consequently, Ms. Ross called Officer Clayton and told her to mind her own business. She also threatened that "she would have more for [her]" if Officer Clayton told anyone about the conversation and called her a "little white bitch" prior to hanging up the phone. Feeling threatened, Officer Clayton informed her supervisor, Captain Larenzo McBride, and Kevin Orcutt, the Managing Director of Safety and Security, about the incident. Mr. Orcutt notified Mr. Holley of Ms. Ross' behavior and requested she be escorted from the building immediately to avoid any further confusion. Mr. Holley complied.
Employer-Appellee, Zenith Products Ans. Br. On Appeal, Exh. 3.
Due to Ms. Ross' insubordination throughout her employment, she was terminated on July 18, 2003. Ms. Ross filed a petition seeking unemployment benefits which was approved on August 8, 2003. The petition was granted by the claims deputy pursuant to 19 Del. C. § 3315, because it was determined that the employer had not met its burden of showing that Ms. Ross was terminated for cause. Zenith appealed the decision and a hearing occurred on September 3, 2003 before an appeals referee. The appeals referee agreed Ms. Ross was not terminated for just cause and affirmed the decision of the claims deputy. Zenith appealed to the Unemployment Insurance Appeal Board (hereinafter "UIAB").
Ms. Ross contends, in her opening brief, that she was not notified about her termination until July 21, 2003. However, such date is irrelevant to resolve this matter.
A hearing was held before the UIAB on November 5, 2003. The UIAB reversed the referee's decision, finding Ms. Ross had in fact been discharged for just cause from her employment with Zenith and was disqualified from the receipt of unemployment compensation benefits.
The UIAB based its decision on the testimony of Officer Clayton, Mr. Holley, and Mr. Orcutt. Officer Clayton testified she was instructed to observe Ms. Ross and report if Ms. Ross was wearing flip-flops in the office. After making the report, Officer Clayton received a phone call from Ms. Ross and was told to mind her own business and called a "little white bitch." After the phone call, Officer Clayton testified that she felt threatened and contacted Mr. Orcutt to report the incident.
Mr. Holley testified that he knew Ms. Ross was upset about getting demoted and was in his office when Ms. Ross called Officer Clayton. He stated that he heard Ms. Ross say "mind your own business," "coming for her," and "little white bitch." The last witness, Mr. Orcutt, testified that although Ms. Ross was not given a final warning before being terminated, she had been verbally warned on numerous occasions which were documented. He further stated the incident with Officer Clayton was a clear violation of the anti-harassment policy. Since Ms. Ross failed to appear at the hearing, there was no controverting evidence for the Board to consider. There is no documentation in the record as to why Ms. Ross did not appear or that she attempted to reschedule.
As a result, Ms. Ross appealed the Board's decision to the Superior Court on December 01, 2003. First, Ms. Ross contends the hearing should have been rescheduled because she became severely ill the night before. Ms. Ross maintains she called and gave notice to someone, although such named person is not stated in the record, and she was unable to submit a written notice. Second, Ms. Ross' appeal before this Court is based on the contention that her termination was not for "just cause" because it was based on false accusations and she is entitled to the receipt of unemployment benefits. She further insists she did not threaten or use foul language against Officer Clayton. To the contrary, Ms. Ross argues that Mr. Holley was present during the entire conversation between she and Officer Clayton and if any inappropriate conduct occurred, he should have taken immediate action. Lastly, Ms. Ross insists the Board's decision was solely based on the fact that she was not present at the hearing and was not permitted to reschedule.
Zenith, on the other hand, raises two grounds to support the Board's decision to deny unemployment benefits.
First, Zenith argues Ms. Ross was terminated from employment for just cause as that term is defined in 19 Del. C. § 3315(2). Ms. Ross signed an acknowledgment that she had read and signed the company's handbook. Her statements to Officer Clayton clearly violated the company's anti-harassment policies and were grounds for dismissal.
Second, the Board's decision was supported by substantial evidence and should be affirmed. After hearing testimony from Officer Clayton, Mr. Holley and Mr. Orcutt, the Board deemed all witnesses to be credible and agreed there was substantial evidence to conclude Ms. Ross was terminated for just cause. In addition, Zenith provided interoffice memoranda, which supported and documented the witness' testimony. Based on the evidence and finding no excuse for Ms. Ross' absence, the Board was legally correct in refusing to grant her unemployment benefits.
That which follows is the Court's response to the issues so presented.
DISCUSSION
In reviewing a decision of the Unemployment Insurance Appeal Board, this Court is bound by UIAB's 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. Ross' contention that the UIAB should have permitted a rescheduling of the hearing and should not have conducted the hearing in her absence due to her illness. 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. Nor is there any evidence in the record that Ms. Ross attempted to contact anyone at the UIAB concerning a rescheduling of the hearing. As a consequence, there is no basis, legal or factual, to challenge the UIAB's decision in this regard.
The remaining issue to be addressed becomes whether the UIAB's decision that Ms. Ross was discharged for just cause was supported by 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. "Just cause" for purposes of a 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. A single incident of misconduct may also 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).
Tuttle v. Mellon Bank of Delaware, 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. Ross was aware of Zenith's policies regarding harassment in the workplace and insubordination, the Court finds the final confrontation with Officer Clayton constituted sufficient grounds for termination.
It is apparent from her signature on the employee handbook and employee briefing checklist that Ms. Ross acknowledged receipt of the policies in question.
The Board found the testimony of Officer Clayton, Mr. Orcutt and Mr. Holley to be credible, substantiated by the interoffice memoranda addressing the circumstances. Nothing more was required.
The Delaware Supreme Court has stated, "[i]t is within the province of the Board, not this Court, to weigh the credibility of witnesses and to resolve conflicts in testimony." Clearly Ms. Ross' behavior, as determined by the Board, rises to the level and type of conduct which is prohibited in the Zenith Employee Handbook. As stated above, the fact that Ms. Ross was not in attendance at the hearing is of no significance in terms of this issue. First, her testimony was already in the record from the prior proceeding with the appeals referee. Second, she waived her right to submit evidence of her argument by not attending or requesting a continuance in accordance with UIAB rules.
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).
Consequently, the Court finds there was substantial evidence in the record to support the Board's decision that Ms. Ross' discharge was for "just cause." There is also no evidence of legal error or that the UIAB abused its discretion.
CONCLUSION
Based upon the foregoing, the decision of the Unemployment Insurance Appeal Board must be, and hereby is, affirmed.