IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

ANIEA T. ROSS, )

Claimant/Appellant, )

) v. )

) C.A. No. 03A-12-001 CHT ZENITH PRODUCTS, )

Employer/Appellee, and ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD. )

)

OPINION AND ORDER On the Employee's Appeal from the Decision of the Unemployment Insurance Appeal Board

Submitted: June 15, 2004 Decided: September 17, 2004

Aniea T. Ross, pro se , 1608 Surry Court, New Castle, DE 19720. J.R. Julian, J.R. JULIAN, P.A., 824 Market Street, Suite 1001, P.O. Box 2171, Wilmington, D E 19899-2171, Attorney for the

Defendant, Zenith.

Mary Paige Bailey, Esqui re, Deputy Attorney General, Department of Justice, Carvel State Office Building, 820 North French Street, Wilmington, DE 19801, Attorney for U.I.A.B.

TOLIVER, Judge

STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS Aniea Ross bega n h er employment with Zenith Products Corporation on O ctober 1, 2001 as a second shift shipping office clerk. On September 28, 2001, Ms. Ross was provided a

copy of Ze nit h's Employee Handbook, which contained the company's policies against harassment in the workplace. She was also provided a check list indicating tha t vari ous behavior, including insubordination and abusive behavior,

could be grounds for immediate dismis sal. Ms. Ross signed both forms acknowledging she had read a nd understood their

contents.

During the course of her employment with Zenith, Ms. Ross had been reprimanded and orally warned for violating various compa n y procedures. Consequently, on July 9, 2003, Desmond H olley, Ms. Ross' immediate supervisor, and Matt Kikut, the

Department Manager, met with M s. Ross concerning recently

reported violations. The purpose of the meeting was to address Ms. Ross' repeated unauthorized use o f the back

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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.

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shipping department entrance, re pet itive use of open-toed

shoes, and unauthorized entry and use of Mr. Kikut's office.

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Ms. Ross was informed that any further non com pliance with company policy would result in a demotion.

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 per son who made the

reports co ncer ning 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 

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Employer-Appellee, Zenith Products Ans. Br. On Appeal, Exh. 3.

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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.

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"little white bitch" prior to hanging up the phone.

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Feeling

threatened, Officer Clayton informed her supervisor, Captain Larenzo McBride, and Kevin Orcutt, th e 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.

Due to Ms. Ross' insubordi natio n throughout her employm e nt, she was terminated on July 18, 2003.

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Ms. Ross

filed a petition seeking unemplo y ment benefits which was

approved on August 8, 2003. The petition was granted by the cla ims deputy pursuant to 19 Del

. C . $ 3315, becaus e it wa s

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

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terminated for just cause and affirmed the decision of the claims deputy. Zenith appealed to the Unemployment Insurance Appeal Board (hereinafter "UIAB").

A hearing was held before the UIAB on November 5, 2003. The UIAB reversed the referee's decision, finding Ms. Ross had

in fact be en d ischarged 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 tes timony of Officer Clayton, Mr. Holley, and Mr . Orcut t. 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 , Of ficer Clayton received a phone call from Ms. Ros s and was told to mind her own business and call ed 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 kne w Ms. Ross was upset

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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 tha t although Ms. Ross was not given a final warning before being terminated, she had been verbally warned on numerous occasions which were docume nt ed. 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 fo r th e 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. Fir st, 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 recor d, and she was unable to submit a

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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 accus ations and she is entitled to the receipt of unemployment benefits. She further in sists she did not threaten or use foul language ag ains t Officer Clayton. To t he co ntrary, 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 i mmediate 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 t o 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 s igne d the company's handbook. Her statements to

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Officer Clayton clearly violated the company's anti-harassment policies and were grounds for dismissal. Second, the Board's decision was su pp orted 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 additio n, Zenith provided interoffice memoranda, which supported and documented the witness' testimony. Based on the

evidence and finding no ex cuse for Ms. Ross' absence, the Board was legally correct in refusin g to grant her unemployment benefits.

That which follows is the Court's response to the issues so presented.

DISCUSSION In r eviewing a decision of the Unemployment Insurance

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Ohrt v. Kentmore Home , Del. Super., C.A. No. 96A-01-005, Cooch, J.

(Aug. 9, 1996)(Mem. Op. at 8).

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Anchor Motor Freight v. Ciabattoni

, 716 A.2d 154, 156 (Del. 1998); and

Streett v. State , 669 A.2d 9, 11 (Del. 1995).

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City of Wilmington v. Clark , 1991 WL 53441, at *2 (Del. Super.).

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Brooks v. Swales & Assoc., Inc. , 1997 WL 717775, at *1 (Del. Super.)

citing 29 Del . C . $ 10142(d).

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Appeal Board, this Co u rt is bound by UIAB's findings if supported by substantial evidence and absent abuse of discretion or error of law.

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"Substantial evidence is defined

as such relevant evidence as a reasonable mind might accept as

adequate to su p port a conclusion."

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It "is more than a

scintilla and less than a preponderance" of the evidence.

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The Court's role is merely to determine if the evidence is legally adequate to support the agency's factual findings.

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The first issue to be addressed by this Court is Ms. Ross' contention that the UIAB s hould have permitted a

rescheduling of the hearing and should not have conducted the hea ring in he r 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 sh all be deemed to waive his right to participate in said hearing and the hearing shall commence

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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).

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without the presence of said party.

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There is no requirement that all par ties be present for the hearin g to comm ence. The Board is in fact required to start the hearing despite the ab sence of o ne 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 ca us e was supported by substantial evidence and did not constitute an abuse of discretion or error of law.

Titl e 19 Del

. C . $ 3315(2) provides, in pertinent p art ,

that "[a]n individual shall be disqualified for benefits. . .

if the individual was discharge d from the individual's work

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19 Del

. C . $ 3315.

10

Pavusa v. Tipton Trucking Co. , 1993 WL 562196, at *3 (Del. Super.)

(citations omitted).

11

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).

12

Id

.

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Id . citing Farmer v. E.I. Du Pont De Nemours and Co. , 1994 WL 711138,

at *3 (Del. Super.).

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Id

. at 790 citing Pavusa , supra note 17.

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for just cause. . ."

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An em ployer has the burden of proving

"just caus e" b y a preponderance of the evidence before the employee may be disqualified from benefits.

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"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 employe e's e xpected standard of conduct.

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"

`Want on' conduct is that which is heedless, malicious, or reckless, but not done with actual intent to cause harm...".

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On the other ha nd, "w ilful" conduct is that which implies actual, specific, or evil intent.

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A single incident of

misconduct may also justify termination after a company policy against that conduct is clearly communicated to an employee.

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It is apparent from her signature on the employee handbook and

employee briefing checklist that Ms. Ross acknowledged receipt of the policies in question.

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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).

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Since the record ref lects that Ms. Ross was aware of Zenith's policies regarding harassmen t in the workplace and insubordination,

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the Court finds the final confrontation with

Officer Clayton constituted sufficient grounds for termination. The Board found the testimony of Officer Clayton, Mr. Orcutt a n d 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 B oard, not this Court, to weigh the credibility of witnesses and to re so lve conflicts in testimony."

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Clearly Ms. Ross' behavior, as determined by the

Board, rises to the level and type of conduct which is

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prohibited in the Zenith Employee Handbook. As stated above, the fact that Ms. Ross was not in attendance at the hearing is

of no signi fican ce in terms of this issue. First, her testimony was already in the record from the prior proceeding wi th the appeals referee. Second, she waived her rig ht t o submit evidence of her argument by not attending or requesting a continuance in accordance with UIAB rules.

Consequently, the Court finds there was su bstantial evidenc e in the record to support the Board's decision that Ms . Ross' di scharge was for "just cause." There is also no evidence of legal error or that the UIAB abused its discretion.

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CONCLUSION Based upo n the foregoing, the decision of the Une m ployment Insurance Appeal Board must be, and hereby is,

affirmed .

IT IS SO ORDERED.

______________________

Toliver, Judge