IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
DIAMOND STATE PORT )
CORPORATION, )
)
Employer-Appellant, )
)
v. ) C.A. No. 02A-03-006 JRS
)
STANLEY FERGUSON, )
)
Claimant-Appellee, )
)
and )
)
UNEMPLOYMENT INSURANCE )
APPEAL BOARD )
)
Appellee. )
Submitted: October 24, 2002
Decided: January 23, 2003
O R D E R
This 23rd day of January, 2003, upon consideration of the appeal of Diamond
State Port Corporation ("Diamond State" or "Employer") from the decision of the
Unemployment Insurance Appeal Board (the "Board") dated March 7, 2002, granting
Stanley Ferguson’s ("Mr. Ferguson") application for benefits, the parties’ briefs and
the record below, it appears to the Court that:
1. Mr. Ferguson worked for Diamond State from March of 1993 until
October of 2001 as a meat packer. In the months leading up to October, 2001, Mr.
Ferguson had made an arrangement with his supervisor whereby he would be sent
home from work in the event concerns were raised about his work. It was agreed that
such issues would be addressed the following day or at a later date, and that Mr.
Ferguson would not be terminated from his position solely because he had been
excused from the job site for the day.
2. On October 11, 2001, Mr. Ferguson worked in the warehouse wrapping
meat pallets. Mr. Ferguson’s usual supervisor was not present that day. At some
point during the morning, the new supervisor, Michael Phillips ("Mr. Phillips"),
instructed each employee to wrap five pallets in the morning and five pallets in the
afternoon. Mr. Ferguson wrapped his five pallets in the morning and, before lunch,
he began to wrap his five pallets for the afternoon. He marked these pallets with his
initials. After lunch, a co-worker claimed that he had wrapped the pallets marked
with Mr. Ferguson’s initials. An argument ensued, and Mr. Phillips stepped in to
resolve the conflict. Mr. Phillips directed Mr. Ferguson to complete the co-worker’s
pallets. Mr. Ferguson refused. Mr. Phillips repeated this order, and when Mr.
Ferguson continued to argue, Mr. Phillips directed Mr. Ferguson to leave the work
site. Again, Mr. Ferguson refused. Mr. Phillips called security personnel who
repeated the order to leave. Mr. Ferguson finally complied and was told not to return
until Philip Immediato ("Mr. Immediato"), the Director of Human Resources,
contacted him. Over the next several days, Mr. Immediato gathered information
about the October 11th incident and terminated Mr. Ferguson thereafter.
3. Mr. Ferguson filed a claim for unemployment insurance benefits with the
Delaware Department of Labor on September 23, 2001. The Claims Deputy denied
Mr. Ferguson’s request for benefits, finding that Diamond State had "just cause" to
terminate him for insubordination and misconduct. On appeal, the Appeals Referee
affirmed the Claims Deputy, concluding that Mr. Ferguson refused to follow two
orders from his supervisor and that "the claimant was discharged from work for just
cause." Mr. Ferguson appealed again, and the Board reversed the Referee’s decision.
In support of their decision, the Board stated: "[t]he Board does not find that there
was a blatant refusal to perform work, but rather that the claimant thought he had
completed all the work which he was required to do." Therefore, the Board
concluded that Diamond State did not have "just cause" to terminate Mr. Ferguson.
4. Diamond State, in the current appeal, makes two primary arguments
addressing the Board’s factual finding that Mr. Ferguson’s "behavior can be
accounted for by the fact that he had an arrangement with his previous supervisor
whereby, at times, he would refuse to do work and then be sent home, but not fired."
First, Diamond State argues that to reach this conclusion, the Board relied solely on
Mr. Ferguson’s account of a "hearsay" communication he had with his former
supervisor about their prior arrangement. Diamond State’s second contention is that
the Board’s explanation for Mr. Ferguson’s behavior does not account for Mr.
Ferguson’s refusal to leave the work site when requested.
5. The role of the Court when reviewing an appeal from the Board is well
settled. The Court reviews the Board’s decision to determine whether its factual
findings are supported by substantial evidence and reviews its ultimate decision to
ensure that it is free from legal error. Substantial evidence has been defined as
relevant evidence that a reasonable mind might accept as an adequate basis to support
a conclusion. Substantial evidence requires "more than a scintilla but less than a
preponderance" of evidence to support the finding. The Court does not weigh
evidence, assess credibility, or make independent factual findings.
6. Both parties agree that Diamond State discharged Mr. Ferguson and,
therefore, Title 19, Section 3315(2) of the Delaware Code applies. Under Section
3315(2), an employee is not qualified to receive benefits "[f]or the week in which the
individual was discharged from his work for just cause in connection with the
individual’s work and for each week thereafter until the individual has been employed
in each of 4 subsequent weeks." "Just cause" is defined as a "wilful or wanton act
in violation of either the employer’s interest, or of the employee’s duties, or of the
expected standard of conduct." The employer must prove by a preponderance of the
evidence that the employee was discharged for "just cause."
7. Even though Mr. Ferguson refused two directives from Mr. Phillips, the
Board found that Diamond State did not have "just cause" to fire Mr. Ferguson. The
Board’s conclusion that Diamond State did not have "just cause" to terminate Mr.
Ferguson for his initial refusal to perform his work as directed is supported by
substantial evidence. Mr. Ferguson’s uncontested testimony supports the Board’s
finding that the prior supervisor had permitted Mr. Ferguson to refuse to work and to
leave for the day. If the employer tolerated this "insubordinate" act in the past,
Delaware law requires the employer to give notice to an employee before terminating
the employee for the same conduct. Looking only at Mr. Ferguson’s past
arrangement with his former supervisor and without regard to the hearsay testimony
relating to the former supervisor’s statements, Diamond State did not establish "just
cause" because Diamond State did not give the requisite notice.
8. Mr. Ferguson, however, also disregarded Mr. Phillip’s second instruction
to leave the work site. Mr. Ferguson admits to his noncompliance with Mr. Phillips’
order, which also creates substantial evidence in the record of insubordination. The
Board’s factual findings described the prior arrangement between Mr. Ferguson and
his supervisor: "at times, he would refuse to do work and then be sent home, but not
fired." The prior arrangement contemplated Mr. Ferguson being sent home, but it
did not contemplate that Mr. Ferguson could refuse the supervisor’s instructions to
leave. There is no evidence to indicate that Diamond State tolerated Mr. Ferguson’s
disobedience of an order to leave the work site in the past. Therefore, the Court must
now consider if Mr. Ferguson’s refusal to leave the work site constituted "just cause"
under Delaware law.
9. Although the Board did not address Mr. Ferguson’s refusal to leave the
work site in its decision, a remand is unnecessary. The testimony that Mr. Ferguson
refused to leave on October 11th and that Diamond State had not tolerated his refusal
to leave in the past stands uncontested in the record. These undisputed facts are "just
cause" for termination under Delaware law. The facts of Foraker v. Diamond State
Recycling are analogous. InForaker, the supervisor instructed the employee to park
his truck and go home. The employee refused to follow this instruction and
continued to argue his point, much like Mr. Ferguson.16 The court concluded that the
employee was terminated for "just cause," stating that "[a]n employee’s refusal to
follow specific instructions or orders from a superior is clearly ‘just cause’ for
termination."17 Similarly, Mr. Ferguson’s noncompliance with the employer’s
reasonable instruction to leave the work site provided "just cause" termination.
Because Diamond State demonstrated "just cause" under Section 3315(2), Mr.
Ferguson is disqualified from receiving unemployment insurance benefits.
10. Based on the foregoing, the Board’s decision to grant Mr. Ferguson’s
application for unemployment insurance benefits is REVERSED.
IT IS SO ORDERED.
Judge Joseph R. Slights, III
Original to Prothonotary
cc: Stanley Ferguson
Sherry V. Hoffman, Deputy Attorney General
Stephani J. Ballard, Esquire