IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
DELAWARE TRANSIT )
CORPORATION ) CIVIL ACTION NUMBER
)
v. ) 02A-10-006-JOH
)
BARBARA M . GROSS-TODD and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD )
Submitted: April 28, 2003
Decided: June 27, 2003
MEMORANDUM OPINION
Upon Appeal from a Decision of the Unemploym ent
Insurance Appeal Board - AFFIRMED
Laura L. Gerard, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, attorney for appellant
Barbara Gross-Todd, Pro Se
19720.
HERLIHY, Judge
The Delaware Transit Corporation ("DART") appeals the decision
of the Unemployment Insurance Appeal Board that its employee bus driver
Barbara Gross-Todd w as terminated without just cause, thereby qualifying
her for benefits. Gross-Todd explained to the Board that she had refused
an assignment because she had felt ill and was unfit to work. She had told
her immediate supervisor of her illness, but did not tell the regional
supervisor. DART, on the other hand, presented witnesses who testified
that Gross-Todd never mentioned any health concerns, but rather
expressed to them that she did not take the assignment because it would
interfere with another client's pick-up to which she was already assigned
and had already agreed to perform. The Board found Gross-Todd to be
credible and awarded her unem ployment benefits.
On appeal, DART argues that 1) Gross-Todd had a legal duty to tell
the regional manager of a legitimate reason for refusing work before going
home, 2) the Board erred by failing to resolve discrepancies in Gross-
Todd's testimony, and 3) no substantial evidence existed on the record
upon which the Board could conclude that Gross-Todd was terminated
without just cause. The Court finds all three arguments to be without merit
and affirms the decision below .
Facts
Claimant Barbara Gross-Todd was employed as a full-time DART
Paratransit bus driver. The incident in dispute occurred on May 24, 2002.
At the time, she was employed under a last chan ce agreem ent, date d
March 18, 2002. The agreement provided that Gross-Todd would be
terminated for any occurrence of inappropriate behavior or insubordination
during the next three years. Claimant was pregnant and was scheduled to
begin maternity leave in June.
Upon completion of her shift at 1:30 p.m., Gross-Todd requested
overtime work from a dispatc her, Troy Thomas. Thomas assigned her
several passengers to pick-up at 3:00 p.m. in Newark. A few minutes
later, another client became ready for pick-up at St. Francis Hospital.
Marie Jones, Gross-Todd's service superv isor, told her that she had
adequate time to perform the 2:00 p.m. pick-up1 before the 3:00 p.m. pickup
to which she was already assigned.
The parties dispute Gross-Todd's reaction to the new assignment.
Gross-Todd testified that she had been suffering, as a r esul t of p regn ancy,
from intermittent back pain and cramps throughout the day, but that she
felt well enough by the end of her shift to request overtime. However, the
pain returned, she said, while she was aw aiting the 3:00 p.m. assignm ent.
According to Gross-Todd, she decided to go home, went to the dispatcher's
window, and informed Jones that she could not complete the overtime
assignm ents due to illness.
Thomas and Jones testified, however, that Gross-Todd did not
mention any health concern s. Instead, they testified that she refused the
2:00 p.m. assignment because it would make her late for her 3:00 p.m.
assignme nt. Jones allegedly replied that the 2:00 p.m. trip was nearby and
would be brief .
The rest of the facts are undisputed. Jones told Gross-Todd to see
Charles Moulds, the acting C hief Paratr ansit Supervisor for the N orthern
District of Delaware. Jones, thereafter, marked DART's log book to
record Gross-Todd's departure from work and to note that Gross-Todd had
refused to work. Jones also told Moulds that Gross-Todd had refused to
work. When G ross-Tod d met with Mould s, he asked her abou t the
incident. Gross-Todd explained that she had already agreed to take the
3:00 p.m. pick-up, but then Jones wanted her to take the 2:00 p.m. pick-up.
Gross-Todd told Goulds that she was concerned that if she took the 2:00
p.m. assignment, she would be late for the 3:00 p.m. pick-up. Gross-Todd
testified before the Board that she did not tell Moulds of her illness
because he had been harassing her and she just wanted to go home.
Moulds then told Gross-Todd that her actions constituted a refusal to work.
Gross-Todd asked Moulds if such a refusal was a termina ble offen se, to
which Moulds responded in the affirmative. Gross -Todd the n left. At this
point, it was approximately 2:30 p.m. Gross-Todd went to the hospital that
night and was put on bed rest for the weekend.
On August 7, 2002, an Appeals Referee found that Gross-Todd's
actions constituted in subordina tion, that she w as te rminated with just
cause, and that therefore she was disqualified from rece ivin g
unemployment benefits. On appeal, the Board reversed the Referee's
decision on September 11, 2002. The Board accepted as credible Gross-
Todd's testimony that she was feeling ill on the day in question. Therefore,
since leaving work due to illness cannot be considered willful or wanton
misconduct, the Board found that she was discharged without just cause
and that she is entitled to unemployment benefits .
DART has appealed that decision to this Court. DART makes three
arguments. First, it argues that the Board erred as a m atter of law when it
found that Gross-Todd w as discharg ed withou t just c a use and was
qualified to receive unemployment benefits. DART asserts that Gross5
Todd had a duty to inform Moulds, her supervisor with disciplinary
authority, of her illness, but did not. The argument continues that because
she failed to info rm him, Moulds justifiably relied upon her silence in
concluding that her refusal of work was not justified by a legitimate
excuse. Under D ART's policy, employees are not requ ired to wo rk while
ill, but, obviously, that policy is premised upon an employee in forming h is
or her supervisor of an illness.
Next, DART contends that the Board erred as a matter of law insofar
as it failed to resolve certain conflicts in the evidence. DART maintains
that there were several discrepancies in Gross-Todd's testimony and yet,
without resolving them, the Bo ard accepted her testimon y. In particular,
DART argues that the Board erred insofar as it failed to question her about
why she had given two different reasons for having refused the second
assignment; was it because she was sick or because it would have made
her late for the 3:00 p.m. pick-up? A second such alleged discrepancy was
Jones' reaction after Gross-Todd told her she wa s leaving w ork due to
illness. Gross-Todd testified before the Referee that Jones said she would
find someo ne else to do the p ick-up s, but she testified before the Board
that Jones continued to insist th at she take th e assig nments. DART
maintains that the Board's failure to resolve these discrepancies is grounds
for reversal.
Lastly, DART asserts that the Board 's decision to grant
unemployment benefits was not one supported by substantial evidence.
DART contends that the issue of the case was whether Gross-Todd was
insubordinate by refusing th e assignm ent and leav ing work without
providing a legitimate excuse for her departure. Even if she had been ill,
it argues, the Board ignored the fact that Gross-Todd was obligated and
failed to inform Moulds, the supervisor whom DART claims was the first
to have disciplinary power over her, of a justifiable reason for the refusal
to work. DART also maintains that insufficient evidence existed to
persuade any reasonable mind that Gross-Todd had a just cause to refuse
the assignment.
Standard of Review
The duty of this Court on an appeal from the Board is to determine
whether the Board's decision is supported by substantial evidence and free
from legal error.2 This Court does not sit as a trier of fact with authority
to weigh the evidence, determine questions of credibility and make its own
factual findings and conclusions. The Board's decision must be affirmed
if it is supported by substantial evidence.4 Substantial evidence means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.5 In reviewing the record for substantial evidence, the
Court will consider the record in the light most favorable to the party
prevailing below.
Discussion
On appeal to this Court, the credibility of witnesses, the weight of
their testimony and the factual infe rences drawn therefrom are f or the
Board to determine.7 This Court does not substitute its judgment for that
of the Board.8 Accordingly, this Court must view the record in the light
most favorable to the party prevailing below, Gross-Todd.
When viewing the record of this case in a light most favorable to
Gross-Todd, the essential facts are as follows. Gross-Todd accepted the
3:00 p.m. assignment because, at that time, she felt well enough to do so,
but was thereafter assigned another, earlier pick-up. Gross-Todd felt the
onset of pain and decided to go home rather than take the assignments and
she told Marie Jones, her se rvice supervisor, as such. The re gional
supervisor, Charles Moulds, asked Gross-Todd to see him before she left
work and she obliged. Mould confronted her about her refusal of the
second assignme nt. Instead of informing Mould s that she no longer felt
well enough to perform the pick-ups , Gross-Todd disagreed with Moulds
over whether or not she had enough time to perform the 2:00 p.m. pick-up
without being late for the 3:00 p.m. pick-up. When asked before the Board
why she did not tell Moulds of her sickness, Gross-Todd stated:
First of all I was upset and irritated w ith the fact I ha d to be in
there due to the fact that they had already told Marie Jones that
I was sick and secondly that Charlie Moulds and his assistant
had been harassing me.
Moulds informed Gross-Todd that her conduct constituted a terminable
offense and she wen t home, only to return several days later with doctors'
notes evidencing her medical problems.
I.
DART's first argument on appeal is that the Board erred as a matter
of law by failing to consider Gross-Todd's duty to speak so as to inform
Moulds of her legitimate reason for refusing work. DART cites two cases
for support. The first is Laime v. Casapulla's Sub Shop.10 There, the claimant
had been off from work for a few days due to pregnancy complications
when her husband called her employer to inform it that she would not be
in as expected due to continued illness. The employer essentially told the
husband that his wife should look for a new job. The claimant never spoke
with her employer again, but rather assumed from what her husband told
her that she had been terminated. The relevant part of the opinion states:
Further, Employee concedes that she did not attempt to contact
Employer about her job. This Court agrees with the Board
that, because Employee was not directly told by Employer that
she was terminated, she had a duty to speak to Employer and
clarify her job situation . "[A]n employee does have an
obligation to inform an employer of resolvable problems, and
to make a good faith effort to resolve them before simply
leaving." In this case, Employee admits that Employer only
communicated with Emp loyee's husband. Employee made no
effort to resolve her problems with Employer and never
returned to w ork. The Boa rd's finding that Employe e
voluntarily quit her job is supported by substantial evidence
and free from legal error.
The other case upon which DART relies is Carroll v. Food Lion. In that case,
the Court affirmed the Board's denial of review of the Appeal Referee's
decision. The relevant portion of the Referee's reasoning was as follows:
This pattern of conduct was illustrative of the claimant's
employment history with Food Lion. I find the claim ant's
testimony that she did not know she had to work on August 31,
1993 as lacking in credibility. She testified that a co-worker
gave her her schedule and no mention was made of August 31st.
The claimant had a duty to speak with management about her
schedule or personally visit the store to receive it. She should
not have relied upon a co-worker to convey that information to
her.
DART argues that the Board erred in the present case by failing to
apply the legal principles used in Laime and Carroll. In Laime it was held that
an employee has an ob ligation to inform an employer of resolvable
problems and to make a good faith effort to resolve them before leaving.
In Carroll , the Referee noted that the claimant had a duty to speak with
management about her schedule and that she should not have relied upon
a co-worker to convey that information. From this backdrop, DART
argues that Gross-Todd had a legal duty to inform Moulds, not Jones, of
her illness and to discuss with him options to resolve the situation.
Furthermore, it is asserted that Gross-Todd erred by relying upon Jones to
have notified Moulds of her illness. Accordingly, the argument continues,
the Board cannot legally find that Gross-Todd was terminated without just
cause.
The Court disagrees. Distilled to its essence, DART contends that
Gross-Todd had a duty to inform a supervisor with disciplinary autho rity
in order to le ave work due to illness. According to DART, it was not
enough for Gross-T odd to info rm her imm ediate servic e superviso r, Marie
Jones, of her medical condition, but rather she had a d uty to go up the
hierarchy of the organization to the Chief Paratransit Supervisor for the
Northern District of Delaware, Charles Moulds. While the record does not
flesh out the individual responsibilities of Jones and Moulds,14 it appears
safe to assume that Jones is responsible for makin g assignm ents to
individual drivers and managin g the day-to-da y matters, while Moulds is
responsible for more executive-type duties. It is u nlik ely that DART
policy requires every driver to contact the Supervisor for the Northern
District of Delaware whenever he or she calls in sick for work. DART
asks too much of the Bo ard and the Court to im pose such a duty in this
case, and fails to recognize the implications across the board that would
flow therefrom.
While it would no doubt have been advisable for Gross-Todd to have
told Moulds of her medical reasons for leaving work and not to have relied
on Jones to inform him of such, DART has not presented this Court with
precedent requiring such action in order to receive benefits. Laime is
distinguisha ble from the case at hand because that case dealt with a
claimant who heard of her termination second-hand, but never bothered to
speak with her employer. Here, Gross-Todd was informed of her
termination by the reg ional su perviso r for D ART . Carroll is equally
inapplicable. There, the Appeals Referee rejected the claimant's testimony
that she wasn't informed that she was to work on the day at issue, noting
that the claimant had a duty to check her own schedule and not to rely on
co-workers to relay the information accurately. Here, Gross-Todd was at
work when she informed her direct, immediate supervisor, Marie Jones,
that she was going home due to illness. In other words, she told her direct
supervisor of her medical condition; she did not rely on a co-worker to
relay information on her behalf.
II.
DART's next argument on appeal is that the Board erred as a matter
of law insofar as it failed to resolve certain conflicts in the evidence.
Particularly, DART maintains that there were two discrepancies in Gross-
Todd's testimony that the Board failed to adequately address. First, Gross-
Todd testified that she told Jones that she was going home ill as the reason
for refusing the 2:00 p.m. assignment. Gross-Todd also testified, however,
that she argue d with Moulds about whether she would have had time to
complete the 2:00 p.m. pick-up without being late to her 3:00 p.m. pick-up.
DART argues that the Board failed to question Gross-Todd as to this
discrep ancy and therefore failed to resolve the conflict.
But the Board did address this discrepancy, albeit in a less preferable
and indirect manner. The Board expressly found Gross-Todd's testimony
of her illness credible. The fact that Gross-Todd discussed with Moulds
the plausibility of handling both a 2:00 p.m. and a 3:00 p.m. pick-up is
irrelevant, except insofar as it is useful to impeach her testimony that
illness was to blame for her refusal to take the assignment. But once the
Board accepted Gross-Todd's testimony that she was ill at the time in
question -- testimony that was supported by proper professional
documentation -- there was no need for the Board to delve deeply into the
exact details of the conversation that took place in Mo uld's office.
The second discrepancy pointed to by DART involves Jones' reaction
to Gross-Todd's refusal of the 2:00 p.m. assignment. Gross-Todd testified
before the Appeals Referee that, after she told Jones she was going home
ill, Jones said she was going to find someone else to the do the 2:00 p.m.
pick-up. In contrast, Gross-Todd testified before the Board that Jones
continued to insis t that she t ake t he 2 :00 p .m. tr ip. B ut th e Co urt's
reasoning for rejecting DART's first discrepa ncy argume nt is equally
applicable here. Whether Jones said that she would find a replacement
driver or rather continued to insist on G ross-Todd taking the assignment
is wholly irrelevant to the issue that was before the Board: was Gross-
Todd term inate d wi thou t just caus e? In any e vent, as noted earlier, issues
of witness credibility are to be resolved b y the Board, n ot by this Cou rt.
This Court sees nothing in the record which warrants deviating from that
principle.
III.
DART's final argument is that the Board's decision was not based on
substantial evidence in the record . The thrust of the argument is that,
contrary to the Board's determination, the issue in this case was whether
claimant was insubordinate by refusing the assignment without giving
Moulds a legitimate reason. Accordingly, DART maintains, it was
irrelevant whether Gross-Todd was ill the day in question.
This argument, however, is just a different formulation of DART's
first argument on appeal. The premise of this substantial evidence claim
is that Gross-Todd had a duty to inform Moulds, the regional manager, that
she was ill and that informing Jones, her direct supervisor, provided
insufficient notice to DART. The Court has already rejected that
contention
.
In short, the Board had ample evidence in the record before it to
conclude that Jones was ill and for that reason she declined the assignment.
Gross-Todd, who was at that time approximately eight months pregnant,
testified that she had intermittent pain throughout her shift, which returned
in the afternoon. She further testified that once Jones assigned to her the
2:00 p.m. pick-up, she decided to go home ill and told Jones, her direct
supervisor, as such . While DART may take issue with the Board's
decision as to the credibility of Gross-Todd, that decision is one which is
beyond the function of this Court on an appeal.
Accordingly, the Decision of the Unemployment Insurance Appeal
Board is AFFIRMED.
IT IS SO ORDERED.
J.