Opinion
C.A. No. 98A-12-010.
Date Submitted: October 28, 1999.
Date Decided: February 8, 2000.
UPON EMPLOYER'S APPEAL FROM THE UNEMPLOYMENT INSURANCE APPEAL BOARD REVERSED
Thomas P. Preston, Esq., Duane, Morris Heckscher, LLP, 1201 Market Street, Suite 1500, Wilmington, DE 19801. Attorney for Employer, Below-Appellant.
Patricia A. Thompson, 914 Laura Lee Circle, Bear, DE 19701. Claimant, Below-Appellee is Pro Se.
ORDER
This 8th day of February, 2000 having read and considered Wilmington Savings Fund Society's ("Employer") Opening Brief and the record of the proceedings below, it appears that:
(1) On June 5, 1998 Employer terminated Patricia A. Thompson ("Appellee") for providing false information on her employment application. Appellee was denied unemployment benefits by the Claims Deputy on June 8, 1998. Appellee appealed the decision to the Appeals Referee. On October 14, 1998 a hearing was held before the Appeals Referee who granted Appellee's claim for unemployment insurance benefits on October 21, 1998. Employer then appealed to the Unemployment Insurance Appeal Board ("UIAB") and a hearing was held on December 9, 1998. The UIAB affirmed the Appeals Referee's decision on December 9, 1998.
(2) Appellee was hired by Employer on January 19, 1998. On the employment application Appellee was asked "Have you ever been convicted of a criminal offense?" and told to check "yes" or "no." Appellee checked "no." As part of its hiring procedures, applicants are fingerprinted. The application states that the fingerprints will be used for the purpose of verifying criminal convictions. Therefore applicants, including Appellee, are informed of the process.
(3) The Federal Bureau of Investigation uses the fingerprints to do a background check on applicants. Appellee's fingerprint results revealed she had been convicted of disorderly conduct on August 28, 1965. When questioned about the conviction on March 5, 1998, Appellee denied that she had been convicted. Appellee claimed that a mistake had been made.
(4) On March 13, 1998 a meeting was held between Appellee and Vicki Myoda, Employer's Human Resource Director. Appellee stated that she did not have a criminal record of any kind and maintained that she did not have a conviction for disorderly conduct. Appellee stated that she had worked for three other banks and none had ever indicated that she had a criminal record. Due to a match of Appellee's fingerprints, birth date, social security number, parents' names, and physical appearance, Employer conclusively determined the conviction was Appellee's. In fact, Appellee confirmed that the information in the report identified her but nevertheless maintained she did not have a criminal record.
(5) On April 24, 1998 Employer provided Appellee with all information which had been collected on her regarding her criminal record. Because Appellee continued to maintain that she did not have a criminal record, Employer gave her thirty days to prove an error had been made as to the conviction. At the end of the thirty days Appellee having failed to provide any proofs that she had never been convicted of disorderly conduct in 1965, Employer terminated her.
(6) Employer stated it attempted to obtain information from the banks that Appellee claimed previous employment in order to determine if any had ever found that Appellee had a criminal record. Employer was not able to obtain such information due to the lack of records available by her former employers for various reasons.
(7) Appellee continues to insist that she does not have a criminal record. However, Appellee applied for and received a pardon from the Governor of Delaware on September 3, 1998 for a September 2, 1965 conviction of Disorderly Conduct.
(8) The standard of review of a decision of the Unemployment Insurance Appeal Board is whether substantial evidence supports the Board's findings and whether the Board's proceedings are free from legal error. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The UIAB is to solve any questions as to credibility and conflicts while the Court is to determine only whether there is satisfactory proof to support a factual finding. "Where a party with the burden of proof fails to convince the Board below, the resulting finding of fact can be overturned by this Court only for errors of law, inconsistencies, or a capricious disregard for competent evidence."
Unemployment Ins. Bd. of Dep't. of Labor v. Duncan, Del. Supr., 337 A.2d 308, 309 (1975); Avon Products, Inc. v. Wilson, Del. Supr., 513 A.2d 1315, 1317 (1986).
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104 (1988).
Duncan, 337 A.2d at 309; Abex Corp. v. Todd, Del. Super., 235 A.2d 271, 273 (1967).
Ridings v. Unemployment Ins. Appeal Bd., Del. Super., 407 A.2d 238, 239 (1979); Hibble v. Timko Brothers, Inc., Del. Super., C.A. No. 96A-05-002, Carpenter, J. (Aug. 17, 1996) (ORDER).
(9) The issue before this Court is whether there is substantial evidence to support the UIAB's decision that Appellee did not wilfully or wantonly provide false information on the employment application, thereby resulting in termination of Appellee without just cause.
(10) The UIAB by adopting the decision written by the Appeal Referee concluded that:
[I]t must be determined that [Appellee] did not intentionally falsify any information given to her employer and filled the application out to the best of her knowledge at the time. The administrative decision of the [E]mployer to discharge the [Appellee] is certainly not questioned by this tribunal. However, in the absence of any evidence of wilful or wanton misconduct, it must be concluded that there was no just cause for the [Appellee's] dismissal within the meaning of the . . . law. Since there is no just cause for the [Appellee's] discharge, she is entitled to benefits.
The UIAB based its decision on Appellee's testimony that she was not aware of a criminal record and if she had known she would have answered "yes" to the question regarding criminal convictions. The UIAB also considered Appellee's testimony that she had worked in other banks without them finding her to have a criminal record.
(11) Employer argues the UIAB's decision is not supported by substantial evidence because the police record conclusively establishes that Appellee was arrested and convicted in 1965 for disorderly conduct. Employer argues that Appellee does not deny that the description on the police record identifies her accurately. Further, Employer argues that because Appellee was not able to produce any contradictory evidence of the conviction the factual evidence supports that she failed to reveal her conviction on the employment application. Employer argues that Appellee's conduct was wilful misconduct because when confronted with the information, Appellee refused to admit the conviction. Therefore, Employer argues it had just cause to terminate Appellee. The Court agrees.
(12) Pursuant to 19 Del. C. § 3315(2) a person will be disqualified for unemployment benefits when she is terminated with just cause in connection with employment. Just cause is defined as a "wilful or wanton act in violation of either the employer's interest, or the employee's duties, or the employee's expected standard of conduct." This Court has found that where an employee intentionally (verses inadvertently) and falsely states she has never been convicted of a crime on an employment application, the false statement constitutes just cause for termination.
Abex, 235 A.2d at 272.
Bressi v. Eckerds Corp., Del. Super., C.A. No. 92A-09-012, Goldstein, J. (Sept. 19, 1994) (ORDER) (citation omitted); Kowalski v. Unemployment Ins. Appeal Bd., Del. Super., C.A. No. 88A-JL-3, Geblin, J. (Jan. 22, 1990) (Mem. Op.).
(13) The Court finds that substantial evidence does not exist to support the UIAB's decision. Furthermore, the Court finds there was capricious disregard for competent evidence. The FBI report based on Appellee's fingerprints revealed she had been convicted of disorderly conduct on August 28, 1965. Appellee confirmed that the information contained in the report accurately identified her while maintaining this was a case of mistaken identity. The height, weight, hair color, eye color, birth date, birth place, parents' names, and social security number were corroborated. Appellee was given a chance to provide Employer with evidence to rebut the alleged misidentification but she failed. Moreover, with the overwhelming evidence that Appellee had indeed been convicted of disorderly conduct, Appellee still refused to admit any mistake on her part concerning the conviction. Additionally, the September 3, 1998 pardon, for which Appellee applied for, states ". . . the applicant, Patricia A. Thompson, was arrested, charged, and pled guilty, to Disorderly Conduct, and received a suspended sentence. . . ." Thus, it is evident from the language contained in the pardon itself that it was not granted based on factual innocence but rather, the lapse of time without criminal conduct and specifically Appellee's employment problems with Employer. While a pardon may remove a disability, it in no way erases the fact that an act was committed which constituted a criminal offense.
In re State v. (Patricia A.) Thompson, Pardon (Sept. 3, 1998).
Id.
State v. Skinner, Del. Supr., 632 A.2d 83, 84 (1993) (citations omitted).
(14) The Court finds that the UIAB completely and capriciously disregarded competent evidence that Employer had just cause to terminate Appellee based upon her wilful, wanton conduct of providing false information on the employment application. Assuming arguendo Appellee did not recollect the conviction initially, it is difficult to believe she did not recall the conviction after being confronted with the FBI report. Employer not only reasonably relied on competent evidence that Appellee had previously been convicted, but Employer also provided Appellee with the opportunity to present tangible evidence of a mistake. Appellee alleged at the October 14, 1998 hearing before the Appeals Referee that she had letters from previous employers stating that their background investigations on Appellee came back negative, meaning nothing was found. However, Appellee did not produce any such letters at the hearing and has not done so at any time. The UIAB completely ignored the competent evidence before it and rendered a decision that is not supported by substantial evidence.
Oct. 14, 1998, Hg. Tr. at 26.
For the forgoing reasons the December 9, 1998 decision of the Unemployment Insurance Appeal Board awarding unemployment benefits is hereby REVERSED.
IT IS SO ORDERED.