IN THE SUPERIOR COURT OF THE STATE OF DE LAWARE
IN AND FOR KENT COUNTY CHRISTA L. SMOOT, :
: C.A. No. 04A-05-003 WLW Appellant, :
: v. :
: COMCAST CAB LEVISION a nd : UNEMPLOYMENT INSURA NCE : APPEAL BOARD, :
: Appellee. :
Date Submitte d: August 30, 2004 Date Decided: N ovember 16, 2004
ORDER Upon Appeal From a Decision of the Unemploym ent Insurance Appe al Board. Affi rmed.
Christa L. Smoot, pro se. William M. Kelleher, Esquire of Ba llard S pahr Andrews & Ingersoll, LLP, Wilmington, Delaware; atto rneys for Com cast Cablevision.
Mary Page Bai ley, Esqu ire of the Department of Justice, Wilmington, Delaw are; attorneys for t he Unemploy ment Insurance Appeal Board.
WITHAM, J.
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
2 The appellant, Christa L. Smoot, appea ls from a deci sion of the Unemploy ment Insurance Appeal Board, (the "Board") , affirming an Appeals Ref eree's finding that Appellant was terminated for just cause by her employ er, Comcast of Delmarva, Inc. ("Comcast"), and therefor e was disqualified fr om the receipt of unemploym ent benefits. For the reasons which follo w, the Board' s decision is affirm ed.
FACTS Appellant 's employer, Comca s t of Delmarva, I nc., terminat ed Appella nt's employm ent on Januar y 14, 20 04 for misuse of company property and other
violations of company policy that occur red when Appellan t used her company la ptop
to ca rry out a sexual ly explicit elec tronic conversation with her co-wor kers . Appellant was employed by Comc a st of De lmarva, Inc. as a customer service representative on May 17, 1999 and was later transferr ed to the position of addressability and pay-per-view coordin ator. On January 3, 2004, Ap pella nt engaged in a fou r-hou r "instant message" conversation with two of her co-workers on her company laptop. The conver sation included num erou s se xual references and allusions as well as racially derogatory remarks and ins tances of profanity.
Comcast terminated A ppe llant's employm ent for violating Comcast 's company policies prohibiting use of inappropriate and offensive language. These policies are stated in Comcast's employee handbook which lists as misconduct any "abuse of, or misuse of property bel ongin g to Comcast, . . . obscene con duct . . . [i] nappropriate
off-duty conduct . . . [and] misuse of Company resources, including, but not limited
to, e-mail, Int ernet, telephone a nd/or voice-ma il." The handbook c ontains specific
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
3 guidelines for use of Comcas t's el ectro nic co mmunica tion s syst ems in its Electronic Security Policy ("ESP" ). The ESP prohi bits the u se of any of th e company's electronic communica tion systems "to receive or transmit ind e cent, obscene, profane,
sexually explicit, racially derogatory, threatening or otherwise offe n sive or inappropriate language." The Employee Handboo k notifies the employees that engaging in such misconduc t may resu lt in "discipline , up to and inc luding termination of employment." Com cast's Information Security Guidelines (" ISG"), which were in effect before the handbook w as recently upda ted, also prohibit transmitting "objectionab le language or content" when using Comcast's I nformation Technologies. The ISG likewise warn employees that violations of the policies may "result in disciplinary action, up to and including termination of employm ent."
As a result of Appellant's electronic conversat i on, Comcast terminated Appellant 's employment on January 14, 2004. The compan y also disciplined the other two individuals involved in t he conversation. Comcast refused any continued employm ent to the individual prim arily involved in the conversation who at that time
was only tem porarily em ployed by Com cast. The third individual received a lesser punishment in the form of a final written wa rning and three-day suspe nsion because Comcast de termin ed that the empl oyee had not initia ted the conversation and appeared to have at tempted to extr icate himself from the conve rsation.
Appellant filed for unemployment benefits on or about January 21, 2004. After a heari ng, th e Clai ms Deput y for the Depa rtment of La bor issued a decision on February 11, 2004 fi nding th at Comcast ha d just caus e for terminat ing Appell ant's
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
1
Smoot v. Comcast , UIAB Appeal Docket No. 430292, at 3-4 (Mar. 23, 2004) (Referee's
Decision), aff'g Decision of Claims D eputy (Feb. 11, 2004).
2
Smoot v. Comcast , UIAB Appeal Docket No. 430292, at 3 (May 10, 2004), aff'g Decision
of Appeals Referee (Mar. 23, 2004).
4
employm ent and therefore Ap pellant was not entit led to unemploy ment b e nefits. Appellant appealed the decisi on to an Appeals Refe ree on February 19, 2004. After a hearing on March 16, 2004, the Appeals Referee found that Appel lant ha d
transmitted " in decent, obscene, profane, sexually explicit, racial ly derogatory , and otherwise offensive and inappr opriate language" vi a the company' s laptop and held
that Appellant's actions " rose to the level of willfulne ss or wantonness req uired to support just cause for her dismissal."
1
The Re feree conse quen tly aff irmed t he Cla ims
Dep uty's decision and held that Appellant was disqu alified from receiv in g unemployment benefits.
Appellant then appealed to the U nemploym ent Insurance Appe al Board. The Board he ld a hearing on April 28, 2004 and affirm ed the Referee' s decisi on , concluding that Comcast had " produced compet ent probative evidenc e sufficient to
sustain a findi n g that the claim ant was discharged for just cause as a result of the electr onic conv ersation she had wit h other employees on January 3, 20 04."
2
The
Board accordingly al so affirmed th e Referee's decision that Appellant was therefore denied unemploy ment benefits. The Board found specifically that Appellant had violated the ESP which pr ohibited "the re ception or trans missi on of `indecent, obscene, profane, sexually explicit . . . or otherwise offens ive or inappropriate
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
3
Id . at 2.
4
Id . at 3.
5
language '" as well as the ISG which pro scribed "obje ctionable language or content" in employee communications."
3
The Board conclude d that Comcast h ad pr ovide d
sufficient evidence by prod ucing a 24-page tran script of the electronic conversation and providing photocopies of Appellant's signe d acknowledg m ent that she had received access to the company polici es. Th e Board found further that " [t]he evidence shows tha t th e claimant kne w or should have known , in that she had a responsibility to know, that persona l and sexually ori ented electronic c onversations could subject her to d iscipl inary a cti on, including di scharge."
4
Appellant has now
appealed the Board 's decision under 19 Del. C. $3323.
PARTIES' CONTENTIONS Appellant Smoot does not deny that she e ngage d in the conversation on January 3, 2004, nor does she deny making t he sp e cific stateme nts of which she is accused. Appel lant a lso ad mits sh e had k nowle dge o f and s igne d for C omc ast' s Information Security Guidelines. She contends, however, that she was unaware that
her conduct was a m isuse of company equipment or in vi olati on of Com cast's company policies. Appellant claims she did not read the company' s policies in the online handbook and would not have engaged in the conversation had she known it
violated the policies. Appella nt further contends tha t a number of f actual errors exi st in the Board's decision and in the record of the hearings. She also argues there are
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
5
Ridings v. Unemployment Ins. Appeal Bd. , 407 A.2d 238, 239 (Del. Super. Ct. 1979).
6
Oceanport Ind. V. Wilmington Stevedoes , 636 A.2d 8 92, 899 (Del . 1994) (cit ing Olney v.
Cooch , 425 A.2d 610, 614 (D el. 1981); Battista v. Chrysler Corp. , 517 A.2d 295, 297 (Del. Super. Ct. 1986), app. dism. 515 A.2d 397 (Del. 1986).
6
errors in the evidence pres ented by Com cast and that her tr eatment was u nequal to the disciplinary measures meted out to the other em ployees involved in the conversation.
Comcast argues that Appella nt was on notice of the company' s poli ci es and Comcast consequently had just cause to f ire Appellant for violating the stated policies by engaging in a sexually explici t and ra cially derogat ory electronic conversation while using a company laptop computer . Comcast con tends that a copy of the company policies was m ade available to Appellant. In addition, Comcast submitted a form signed by Appellant which ac knowledge d that Ap pellant had review ed the ISG on December 14, 2000. Accordi ng to Comcast' s records , Appellan t also
attended a training session on internet security policies on September 11, 2003, was given access to the company 's updated online ha ndbook on Septembe r 29, 2003 and signed that she ha d received such access on October 24, 2003.
STANDARD OF REVIEW In reviewing an appea l from the Unemploy ment Insurance Appeal Board, thi s Court's role is li mited to determ ining whether the Board's decision is supported by substantial evidence and is free from legal error.
5
Substantial evidence means such
relevant evidence as a rea sonable mind might acce pt as adequate to suppor t a
conclusion.
6
The appellate court doe s not weigh the eviden ce, determi ne questions
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
7
Johnson v. Chrysler Corp. , 213 A.2d 64, 66 (Del. 1965).
8
See 29 Del. C. $10142(d).
9
Unemployment Ins. App eal Bd. v. Div . of Unemploymen t Ins. , 803 A.2d 931, 937 ( Del.
2002).
10
19 Del. C. $ 3315(2) (now contained at 19 Del. C. $ 3314(2)).
11
Pavusa v. Tipton Trucking Co., Inc. , 1993 WL 562196, at *3 (Del. Super.).
7
of credibility, o r make its own factual findings.
7
It mere ly det ermi nes wheth er the
evidence is legally adequate to support the admin istrative agency 's factual findi ngs.
8
DISCUSSION In its function as an appel lat e court, it is " not within the province of the Superior Court to weigh the e vidence, determ ine questions of cred ibility or m ake its own factual findings."
9
This court ma y not draw its ow n con clusio ns as to the
credibility of particular witnesses or the factual circumstances surrounding this case. Conseq uently, the Court cannot address Appellant's claims that there are fact ua l errors in the Board's fi ndings or in C omcast's evi dence. This Court 's only consideration of the facts i s to determine w hether they ar e sufficient to suppor t the Board's conclusion t hat Appellant was terminate d for just cause.
The Delawar e Code states that " [a]n individual sha ll be disqualified for benefits . . . [if] the individual was discharged from the individual's w ork for just
cause in connection with the i ndividual's work."
10
The burden to prove t hat the
employee was discharged for "just cause " is b orne by the employer.
11
To establish
"just cause, " the employ er must show, by a prepondera nce of the evidence, that the
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
12
Ross v. Zenith Produ cts , 2004 WL 208 7955, at *3 (Del. Super .) (citing Tuttle v. Mellon
Bank of Delaware , 659 A.2d 786, 789 (Del. Super. Ct. 1995).
13
Coleman v. Dept. of Labor , 288 A.2d 285, 288 (Del. Super. Ct. 1972).
8
employee's conduct rose to the le vel of wilful or wanton m isconduct "in viol ation of either the emplo yer's int erest, the employee's duties, or the em ployee's expected standard of conduc t."
12
The Board found that App ellant's conduct r ose to the level of wilful or wanton and that Appellant was fired for just cause. Wilful conduct "requires a showing that one was conscious of his conduct or recklessly indi fferent of its cons equences" but
it "need not necessarily connote bad motive . . . or malice."
13
As is made evi dent in
the record, Appella nt's electronic conve rsation on January 3, 2004 contained profane, sexually explicit and racially de rogatory langua ge in violation of Com cast's compa ny policies. The Board's de cision found that the 24-page transcript of the conversation fro m the computer's hard drive as well as evidence that Appellant signed a n
acknowledgmen t t hat she had received access to the company's handbook was "compete nt probative evidence" sufficient for a finding for Comcast. The evidence also indicates that App ellant wa s aware of the policies and had attended additional training on the internet polici es. This record evidence is ade quate t o support the Board's decision that Appell ant's conduct wa s knowing and rose to the level of wilful misconduct. The evidence fur ther supports the Board's con clusion t hat Appell ant's employment was terminated for just cause.
Th e Board also affirmed the Appeals Referee's decision that Appellan t wa s
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
14
Fader v. Burris Foods , 1997 WL 366889, at *2 (Del. Super.)
15
Coleman , 288 A.2d at 288. "[T ]he absence of a dvanced warnin g concerning the
consequences of given acts, as opposed to notice of their im propriety, do es not precl ude a discha rge for wilful misconduct." Id.
16
See Wilmington Sav. Fund. Soc'y v. Moeller , 1997 WL 719315, at *3 (Del. Super.).
9
legitimately terminated fo r violating compa ny policy wi thout any prior warnings or discipline. An employee's violation of a company poli cy of which tha t employee is aware may create j ust ca use for termin ation of employ ment.
14
In addition, an
employer need not give multiple warnings before c h oosing to termina te
employm ent.
15
As long as the c ompany p olicy is clearly com municated to the
employee, the employe r has given adequate notice to justif y termina tion of employm ent after a single violation of that policy.
16
There is suffici ent evidence in
the record to show that Appellant had k nowledge of the com pany's stated policies. The record contains phot ocopies of Appellant 's sign ed ac knowledgments th at she received access to the com pany's policie s and she admitted she was familia r with the ISG. Because Appellant had notice of the company's policies it is irrelevant whether she read them or not.
Appellant also contends that she was disciplined more harshly than the other individuals who took part in the c onversation . The test for "ju st cause" for termination in this context does not include any consideration of the discipline other employees recei ved. A ppel lants claim w oul d fail in any event because the record shows that the other individu als were equally disciplined accordi ng to the roles they
Christa Smoot v. Comcast Cablevision C.A. No. 04A-05 -003 WLW November 16, 2004
17
19 Del. C. $ 3315(2) (now contained at 19 Del. C. $ 3314(2)).
10
played in the conversation. The individual who partic ipated most extensively in the conversation with Appellant wa s refused any f urthe r employm ent and thereby effectively terminated, just as Ap pellant was term inated. The individ ual who only
received a three-day su spension and final written w arning had, according to Com cast, attempted to extricate himself from the conversation and had not participated as
heavily in the convers ation as Appellant a nd the other employee.
Therefore, this Court holds that the Board's decision was based on substantial evidence in the record and there is no eviden ce that the Board comm itted an error of law in affirming that Comcast validly ter minated Appellant's em ployment for just cause. According ly, the Board 's determination that Appellant was disqu alified from receiving unemployment benefits was also proper.
17
Th e deci sion of the Unem ployment Ins urance Appeal Boa rd is affirmed . IT IS SO ORDERED.
/s/ William L. Witham, Jr.
J.
WLW/dmh oc: Prothonotary xc: Order Distributi on