IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COU NTY
MACEO SINGLETON,
Appellant,
v.
STAR BUILDING SERVICES
and the UNEMPLOYMENT
INSURANCE APPEAL BOARD,
Appellees.
Submitted: June 6 , 2006 Decided: Septem ber 26, 2006
MEMORANDUM OPINION Appeal from Unemployment Insurance Appeal Board.
AFFIRMED.
Maceo Singleton, 1 Bryan Ci rcle; Bear, Delaware 19701. Pro Se Appellant.
Unemploym ent Insurance Appe al Board, 4425 N. Market Street; W ilmington,
Delaware 19802. Appellee.
Star Building Service, P.O. Box 11410; Wilmington, Delaware 19850.
Appellee.
CARPENTER , J.
Introduction
Before this Court is Maceo Singleton's appeal from the
Department of Labor, Division of Unemployment Insurance Appeal Board's
("Board") decision, in which it found that Mr. Singleton was terminated by
Star Building Services (" Star") for just cause. Upon review of the record
in this matter, this Court finds the Board's decision is hereby AFFIRMED.
Facts On Saturday, April 9, 2005, Mr. Singleton was employed by Star
and working on its behalf by assisting with cleaning the Dade Behring facility.
Upon leaving the site, Mr. Singleton discovered a cellular phone
in the parking lot, which was later determined to belong to Dade Behring.
Using the newly discovered phone, Mr. Singleton called his home to determine
if the phone was operable, and then subsequently made and received a
number of calls with the same phone. Thereafter,
Dade Behring contacted its phone carrier and obtained a call log
indicating the phone calls made and received on that particular phone since
it turned up missing on April 9, 2005.
On Monday, A pril 11, 2005, George Shelton, Mr. Singleton's supervisor,
was contacted by Dade Behring and advised of the missing Dade Behring
phone and call log obtained. In an att empt to find t he miss ing p hone , Mr. Sh
elton made so me phone calls using the num bers appearing on the call log.
One of the phone numbers Mr. Shelton dialed con nected him to Mr. Singleto
n, allowi ng Mr. Shelton the opportunity to question his emp loyee. The qu
estioni n g led to Mr. Singleton's admission to finding the phone in the
Dade Behring parking lot, and using it for personal calls. Upon request
by Mr. Shelton, Mr . Singleton returned the phone to his employer on
Tuesday, April 12, 2005 .
As a consequence of Mr. Singleton taking and using the phone, Star
terminated his employment. Thereafter, Mr. Singleton filed for unemployment
benefits with the Department of Labor, Division of Unemployment
Insurance (DOL). His claim was denied, and Mr. Singleton timely appealed
the DOL decision. On June 2, 2005, a hearing before the Appeals Referee of
the Division of Unemployment Insurance was held, at which time both Mr.
Singleton and Mr. Shelton testified. That same day a decision was issued
by the Appeals Referee determining that Mr. Singleton was, in fact,
disqualified for benefits pursuant to 19 Del. C. $3314( 2) based on his admission
that he removed the phone from the premises and used it to make and
receive phone calls instead of turning it over to security . The Appeals
Referee characterized these actions as "wilful or wanton act[s],"
disqualifying Mr. Singleton from benefits.
On July 15, 200 5, Mr. Singleton filed a timely appeal of the Appeal
Referee's decision, and on Septembe r 21, 2005 the Board held a hearing to
address the appeal. Again, both Mr. Singleton and Mr. Shelton appeared
before the Board. The Board issued its decision on October 31, 2005 (the
"Board Decision"), indicating that Mr. Singleton knew he had possession of
someone else's phone and that making calls on that phone would cause someone
else to incur c harges. Based on th e testimony and evidence
presented, the B oard up held the Appeal Referee's decision that Mr.
Singleto n's actions constituted "w ilful or wanton conduct."
Mr. Singleton has filed a timely appeal of the Board Decision, which is
currently before this Court.
On December 27, 2005, a briefing schedule for this appeal was issued by
this Court, and on January 31, 2006 Mr. Singleton filed his opening brief.
On April 10, 2006, a Final Delinquent Brief Notice w as sent to the Appell e
e indicati ng that the Appellee must file its re sponding brief within t en
days. To da te, the Appellee has not filed a brief in this appea l. On May
12, 2006, this Court issued an order pursuant to Super. Ct. Ci v. R. 107( e),
indicating the Court would make a determination of the issues on the papers
currently before it.
This is the Court's decision on the matter.
Standard of Review
This Court's role regarding an appeal from the Board is limited to an
evaluation of the record, in the light most favorable to the prevailing
party, to determine if it includes evidence that a reasonable mind
accepts as adequate support for the conclusion and is free from legal error.
In this capacity , the Court accepts the findings of credibility and weight
of the evidence of the Board. Further, if the Board
adopts the findings of the Appea ls Referee, this Court will also review
that findings of fact and conclusion of law.
Lastly, if the record supports the Board's findings, the
Court should accept those findings even though, acting independently,
the Court might reach a different conclusion.
Discussion
The sole question before this Court is whether the Board had substantial evidence
to determine that Mr. Singleton acted wilfully and wantonly when he took
possession of the cellular phone and used it for two days to make and receive
personal calls, thereby providing Star just cause for termination, and
excluding him from eligibility to receive unemployment benefit s. Based on the
record, this Court finds that the Board did have substantial evidence to reach its
conclusion.
An employee who is terminated for wilful or wanton conduct is considered
terminated for "just cause," and is not eligi ble to receive unemployment
bene fits pursuant to 19 Del. C. $ 3314(2). Wilful and wanton conduct must
be established by an employer, and "requires a showing that one was
conscious of his conduct or recklessly indifferent of its consequences."
Lastly, " just cause" exists if the employee violated a company rule,
particularly if he was on notice of the rule.
Here, Star met its burden and established "just cause" for the
termination of Mr. Singleton through two avenues. First, the record
reflects that Mr. Singleton admitted to finding the phone and removing it
from the parking lot. Mr. Singleton further admitted to using the phone,
and the call log indicates Mr. Singleton used the phone as many as 38
times. Mr. Singleton also admitted that he was aware someone would have
to pay for any calls he made. Nevertheless, h e picked up the phone and
used it to make and receive calls. By being aware the phone belonged
to some one else, and by knowing use of the phone would cause someone else
to pay for the calls he made, it is reasonable to conclude Mr. Singleton
consciously disregarded those two facts. By doing so, Mr. Singleton acted
"recklessly indiffe rent of its consequences" when he made 38 phone calls
with the Dade Behring phone.
Second, Mr. Singleton admitted he read the Disciplinary Procedures of
Star. But, despite being on notice that theft was forbidden by Star's
company policy, he chose to take the phone from the parking lot, and
then he deliberately used it times. By doing so, Mr. Singleton knowingly
violated the company policy.
Thus, the facts enumerated above establish that there was substantial
evidence before the Board to show Star had "just cause" to terminate Mr.
Singleton, requiring the Board to uphold the Appeals Referee's decision to
deny M r. Singleton unemployment benefits.
Conclusion
For the foregoing reasons, the decision of the Board is
AFFIRMED. IT IS SO ORDERED.
Judge William C. Carpenter, Jr.