IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
PHILIP B. CARLSON, ) 
) 
Appellant, ) 
) C.A. No. 01A-05-001 WCC 
) 
v. ) 
) 
FAIRMONT SUPPLY COMPANY )
et al., )
)
Appellees. )
Submitted: December 3, 2001 
Decided: March 27, 2002 

O R D E R 

Upon Claimant’s Appeal from the Unemployment Insurance Appeal Board. 
Denied. 
Philip B. Carlson, 425 Howell Drive, New Castle, DE 19720. Pro Se. 
Barry M. Willoughby and Adria B. Martinelli, Young, Conaway, Stargatt & Taylor, 
LLP, P.O. Box 391, Wilmington, DE 19899-0391. Attorneys for Appellee Fairmont 
Supply Company. 

CARPENTER, J.

On this 27th day of March, 2002, upon consideration of Phillip B. Carlson’s 
appeal from the April 29, 2001 decision of the Unemployment Insurance Appeal 
Board, it appears to this Court that: 

1. Phillip B. Carlson, ("the Claimant") was employed as a salesman for 
Fairmont Supply Company, ("Fairmont") from January 23, 1996 until January 24, 
2001. The Claimant’s termination resulted from an inappropriate comment made to 
a fellow employee, Sherill Sinibaldi, coupled with a sexual gesture, which was found 
to be unacceptable for a workplace environment. In Janu ary, 2001, Fairmont Supply 
Company was in the process of being acquired by new owners, and it appeared that 
the Claimant on January 19, 2001, was particularly disturbed by this process and the 
potential affect on his continued employment. Frustrated by the situation, the 
Claimant expressed his desire to leave work in a loud manner to which Ms. Sinibaldi 
suggested to the Claimant that he use his vacation time and go home. In response to 
these comments, the Claimant made a gesture with his hands in his groin area, and 
responded, "why don’t you suck it."1 Because of a previously scheduled office 
meeting with the new owners of Fairmont Supply Company, Ms. Sinibaldi did not 
immediately report the incident to her supervisors. However, after the meeting, 
which was approximately 20 minutes after the incident, Ms. Sinibaldi reported it to 
Tom Yucas and Joe Barcale, her immediate supervisors at the company. 

The Claimant conceded, when he testified, that he made the hand gesture 
towards Ms. Sinibaldi, but denied making the lewd remark. He agreed that the 
gesture was derogatory, but claimed that he and Ms. Sinibaldi frequently bantered in 
that manner and used as an example an alleged discussion of the Claimant’s buttocks 
by Ms. Sinibaldi a few days previous to this event. He testified that the gesture made 
was not intended to offend or hurt Ms. Sinibaldi, as this type of conduct was engaged 
in by other employees, and was, according to the Claimant, condoned by the 
management. On the other hand, the Claimant, during his testimony, verified that he 
had received a copy of Fairmont’s Handbook and was aware of the company’s policy 
against such conduct. Ms. Sinibaldi denied the accusations that she and the Claimant 
engaged in teasing sexual remarks. 

After this incident, Mr. Yucas and Mr. Barcale, the Claimants supervisors, 
spoke with Ms. Sinibaldi and discussed the matter with the Claimant, who 
acknowledged making the gesture and the comment, according to these supervisors. 
Mr. Yucas reported this incident to Fairmont’s home office, who determined that the 
Claimant had violated company policy and since the Claimant’s behavior was a 
violation of the standards set forth the Fairmont’s handbook, the Claimant was 
terminated. 

2. The Claimant first filed a petition to receive unemployment insurance 
effective on January 21, 2001. In its February 6, 2001 decision, the Claims Deputy 
found that Fairmont had established just cause to terminate the Claimant, which 
thereby disqualified him from receiving unemployment benefits.2 The Claimant 
appealed the Claims Deputy’s decision to the Appeals Referee, who found that the 
Claimant’s conduct, although inappropriate and an exercise of poor judgment, was 
not indicative of sexually harassing conduct warranting termination. Therefore, 
according to the Appeals Referee, Fairmont failed to establish just cause to terminate 
the Claimant, which thus entitled the Claimant to unemployment insurance benefits. 

After the Appeals Referee’s determination, Fairmont appealed to the 
Unemployment Insurance Appeal Board (hereinafter "Board"), which held a hearing 
on February 28, 2001 and found that Fairmont had demonstrated just cause to 
terminate the Claimant. The Board cited Tuttle v. Mellon Bank,3 as support for its 
determination that Fairmont’s handbook clearly stated the use of profane or obscene 
language or conduct towards co-employees was a violation of company policy, that 
the Claimant was aware of this policy, and as such, the Claimant’s remarks and 
gestures were inappropriate behavior for the workplace. The Board found that this 
conduct was inappropriate for any workplace environment, and also found that it was 
an exhibition of willful and wanton disregard of Fairmont’s standard of conduct, 
which justified Fairmont’s termination of the Claimant. The Claimant has now filed 
an appeal of that decision with this Court. 

4. On appeal, the Claimant appears to contend that the Board’s decision 
was not supported by substantial evidence, and that the Board was biased because of 
the make-up of it members. The Claimant specifically asserted that because the 
Board was comprised of four women and one man, the Board did not render a fair 
decision supported by substantial evidence. At the Board’s hearing, it appeared to the 
Claimant that the women Board members were "immediately on Ms. Sinibaldi’s and 
[Fairmont]’s side" and that the Board members aided Ms. Sinibaldi "in creating lies" 
about the January 19th events. The Claimant also appears to contend that since the 
two witnesses he brought to the Board’s hearing testified that they did not hear or see 
any of what Ms. Sinibaldi testified to, the Board was erroneous for finding Ms. 
Sinibaldi’s rendition of the events credible. 

5. Fairmont asserts that the Board’s decision was supported by substantial 
evidence and free from legal error for several reasons. First, Fairmont asserts that 
even if it did not make out a legal claim that the Claimant committed sexual 
harassment it does not follow that he was fired without just cause. Thus, argues 
Fairmont, even if Ms. Sinibaldi welcomed the Claimant’s lewd behavior, as the 
Claimant persistently asserts, this does not eliminate his responsibility to adhere to 
Fairmont’s employment policy, which prohibits profane and obscene behavior. 
Further, Fairmont contends that the Claimant was aware of Fairmont’s policy 
regarding profane or obscene language and conduct, and he had recently signed an 
acknowledgment stating he received and reviewed Fairmont’s code of conduct, which 
included Fairmont’s policy on sexual harassment. 

6. The function of this Court on review of an Unemployment Insurance 
Appeal Board decision is to determine whether the decision is supported by 
substantial evidence5 and is free from legal error.6 Substantial evidence is such 
relevant evidence that a reasonable person might accept as adequate to support a 
conclusion. This Court does not weigh the evidence, determine questions of 
credibility, or make factual findings in the first instance.8 Rather, this Court’s role is 
to determine whether the evidence is legally adequate to support the Board’s findings. 

7. The Court finds that there was substantial evidence to support the 
Board’s decision that Fairmont terminated the Claimant for just cause. Just cause has 
been defined as "a willful or wanton act in violation of either the employer’s interests, 
the employee’s duties or the expected standard of conduct."9 One factor used in 
determining "just cause" is "whether an employee received a prior warning [as] [a] 
single incident of misconduct may justify termination after a company policy against 
the conduct is clearly communicated to an employee."10 Here, it appears that not only 
did the employee handbook outline impermissible behavior, which would warrant 
termination, but the Claimant admitted having knowledge of that handbook and its 
contents. Since the Claimant conceded that he knew, and had read the employee 
handbook, which outlined the impermissible behavior, the Claimant cannot now 
claim that he did not have notice of the employee policy, or that he was unjustly 
terminated without just cause. The Claimant conceded to making the lewd gesture, 
and it is amazing to the Court that he continues to pursue this appeal in light of this 
admission. This Court will not tolerate or find acceptable the locker room demeanor 
and immature conduct demonstrated by the Claimant in a professional business 
setting. In this case, not only was such conduct unacceptable and unprofessional, it 
violated the code of conduct clearly articulated by Fairmont. There is simply no 
question that Fairmont had just cause for terminating the Claimant. 
As such, the Board’s decision in this matter is factually and legally supported 
by the evidence presented, there was no abuse of discretion, in making that decision, 
and the decision was otherwise free from legal error.11 Therefore, the Claimant’s 
appeal is denied. 

IT IS SO ORDERED. 

Judge William C. Carpenter, Jr. 
cc: Prothonotary