Burke v. Child, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHARRON BURKE, )
)
Appellant, )
)
v. ) C.A. No. N17A-04-005 CEB
)
CHILD, INC. and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
)
Appellees. )
Date Submitted: August 7, 2017
Date Decided: November 20, 2017
Upon Consl`deratz'on of Appeal from
the Unemployment lnsurance Appeal Board.
AFFIRMED.
ORDER
This 20th day of November, 2017, upon consideration of the pro se appeal of
Sharron Burke (“Ms. Burke”) from the decision of the Unemployment Insurance
Appeal Board (the “Board”) and the record in this case, it appears to the Court that:
1. Ms. Burke Was employed part-time as a Family Visitation Center
Counselor by CHILD, Inc. (“Employer”) from August 2015 to January 20, 2017.
2. Employer terminated Ms. Burke on January 20, 2017, after
discovering that she had posted harassing and threatening comments about her
coworkers on her public Facebook pagel in violation of Employer’s various
policies, including its Workplace Violence policy.2
3. After her termination, Ms. Burke filed a claim for unemployment
benefits with the Division of Unemployment. On February 9, 2017, a Claims
Deputy issued a Notice of Determination finding that Ms. Burke was discharged
l In reference to one of her coworkers, Ms. Burke included the following comment in a Facebook
post: “I had to cool off before l snatched the little bit of locs she has left on her head.” R. at 135.
In another entry, Ms. Burke posted, “Scallywags at work are the prime example of black women
trying to keep another black woman down . . . .” R. at 133. Ms. Burke also wrote that “[s]ome
black folk just shouln’t [sic] hold power. As soon as they get a taste of a little of it, they act like
one of those freed slaves right off the plantation that enslave their own people.” R. at 135. In a
similar post discussing the age of her coworkers, Ms. Burke stated, “Today’s generation needs a
good ass whippin’ to show respect.” R. at 80, 232.
2 Employer’s Workplace Violence Policy provides:
The safety and security of CHILD, Inc. employees, clients and visitors are of vital
importance Therefore, acts or threats of violence made by an employee against
another person’s life, health, well-being, family or property will not be tolerated.
This policy applies to any threats made on CHILD, Inc.’s property, at CHILD, Inc.
events, or under other circumstances that may negatively affect CHILD, Inc.’s
ability to conduct business. Such acts or threats of violence, whether made directly
or indirectly, by words, gestures or symbols, infringe upon CHILD, Inc.’s right or
obligation to provide a safe workplace for its employees CHILD, Inc. prohibits
the following:
» Any act or threat of violence made by an employee against another person’s
life, health, well-being, family or property;
¢ Any act or threat of violence including, but not limited to, intimidation,
harassment or coercion;
0 Any act of threat of violence that endangers the safety of clients, employees
or visitors;
0 Any act or threat of violence made directly or indirectly by words, gestures or
symbols; and
» Use or possession of a weapon on CHILD, Inc. premises.
Employees violating the provisions of this policy are subject to disciplinary action
up to and including termination.
R. at 77-78, 179-80.
for just cause in connection with her work and was therefore disqualified from
receiving unemployment benefits pursuant to 19 Del. C. § 3314(2) (“Section
3314(2)”).3 On February 14, 2017, Ms. Burke timely appealed the Claims Deputy’s
determination to an Appeals Referee.
4. The Appeals Referee held a de novo hearing on February 27, 2017.
On March 2, 2017, the Appeals Referee affirmed the Claims Deputy’s
determination that Ms. Burke was discharged for just cause and disqualified from
receiving unemployment benefits pursuant to Section 3314(2).4 Specifically, the
Appeals Referee found that Ms. Burke agreed to abide by Employer’s policies and
that by connecting her public Facebook posts to news organizations, Ms. Burke
violated Employer’s policy relating to “Contact with News Media.” The Appeals
Referee also found that Ms. Burke’s conduct amounted to willful insubordination
in violation of Employer’s expected standard of conduct. Ms. Burke timely
appealed the Appeals Referee’s decision to the Board on March 6, 2017.
5. The Board held a hearing on March 22, 2017. Both Ms. Burke and a
representative for Employer attended the hearing. The Board considered the
evidence previously presented to the Appeals Referee and the Referee’s decision
3 Rawle at 54-55. Pursuant to 19 Del. C. § 3314(2), an individual is disqualified from the receipt of
unemployment benefits if he or she is discharged from the employment for “just cause” in
connection with his or her work.
4 Rawle at 125-29.
and both sides were given the opportunity to present additional relevant evidence
and legal argument as to why the Appeals Referee’s decision should be upheld or
reversed. On April 24, 2017, the Board affirmed the Appeals Referee’s decision.5
The Board found that Ms. Burke “acted willfully and wantonly in violation of the
Employer’s interest when she violated the Employer’s Workplace Violence policy
by posting harassing and threatening comments about her coworkers to
Facebook.”6 As a result, the Board found that Ms. Burke was terminated for just
cause in connection with her work and disqualified from receiving unemployment
benefits pursuant to Section 3314(2).
6. Ms. Burke timely appealed the Board’s decision to this Court. In her
Notice of Appeal, Ms. Burke provides the following as grounds for the appeal: (1)
Ms. Burke “did not violate company policy on violence and harassment;” (2) “1
never stated my coworkers need a good ass whoopin;” (3) the Board “did not
review claim thoroughly;” and (4) “I never stated anything containing ‘I will do
harm’ or ‘I will do this’ or made racial slurs.”
7. This Court’s review of Ms. Burke’s appeal is limited to a review for
errors of law and a determination of whether “substantial evidence exists to support
5 Rawle at 213-16.
6 R. at 215.
the Board’s findings of fact and conclusions of law.”7 “Substantial evidence is that
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.”8 In reviewing the record for substantial evidence, the Court will
consider the record in the light most favorable to the party prevailing below.9 The
Board’s decision is reviewed de novo for errors of law.10 In the absence of legal
error, the Board’s decision is reviewed for abuse of discretion.11 The Court will
find an abuse of discretion when the Board “exceeds the bounds of reason in view
of the circumstances and has ignored recognized rules of law or practice so as to
produce injustice.”12 On appeal, the Court will not “weigh the evidence, determine
questions of credibility, or make its own factual findings.”13
8. An employee who is discharged for “just cause” is disqualified from
receiving unemployment insurance benefits.”14 “Just cause” exists when an
7 Arrants v. Home Depot, 65 A.3d 601, 604 (Del. 2013).
8 Wyatl‘ v. Rescare Home Care, 81 A.3d 1253, 1258 (Del. 2013) (internal citations omitted).
9 Gen. Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del. Super. Aug. 16, 1991).
10 Arrants, 65 A.3d at 605.
11 Id.
12 Nardi v. Lewis, 2000 WL 303147, at *2 (Del. Super. Jan. 26, 2000) (citation omitted).
13 Person-Gaines v. Pepco Hola'z'ngs, Inc., 981 A.2d 1159, 1161 (Del. 2009).
14 19 Del. C. § 3314(2).
employee commits a “willful or wanton act or pattern of conduct in violation of the
employer’s interest, the employee’s duties, or the employee’s expected standard of
conduct.”15 “Willful” conduct is conduct that “implies actual, specific, or evil
intent,” and “wanton” conduct is conduct that “is heedless, malicious, or reckless,
but not done with actual intent to cause harm.”16 A single incident of misconduct
can establish just cause for termination.17 For example, a single incident of
“insubordination, theft, violence or threats of violence, and other activities where
the employee acts with reckless disregard for the employer’s interest” can be
sufficient to establish just cause.18
9. There is substantial evidence in the record to support the Board’s
conclusion, including the following: (l) the Employer’s Personnel Policies Manual
containing, inter alia, the policy against Workplace Violence; (2) Ms. Burke’s
signed Employee Acknowledgment dated September 20, 2015, stating that she
received, understood, and was willing to adhere to the policies within the Manual;
15 Dep ’t of Corr. v. Toomey, 1997 WL 537294, at *2 (Del. Aug. 20, 1997) (quoting Avon Prods.,
Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986)).
16 Tuttle v. Mellon chk of Delaware, 659 A.2d 786,789 (Del. Super. 1995) (citing Farmer v. E.I.
DuPont De Nemours and C0., 1994 WL 711138, at *3 (Del. Super. Nov. 9, 1994)).
17 Mack v. RSC Landscapz'ng, 2011 WL 7078291, at *2 (Del. Super. Dec. 22, 2011) (citing
Peninsula United Methodist Homes v. Crookshank, 2000 WL 33114324 (Del. Super. Sep. 28,
2000)).
18 Id
and (3) Ms. Burke’s own Facebook posts. All of this evidence was submitted to
and considered by the Board in reaching its decision.19
10. The Court also notes that in her Opening Brief, Ms. Burke contends
that the Claims Deputy, the Appeals Referee, and the Board erred “by denying me
both a right to ask questions during hearings, and not reviewing my supporting
documents thoroughly.” After careth review of the record, the Court finds this
contention to be without merit as Ms. Burke was afforded every opportunity to be
heard and to present evidence.
1 l. Based on the foregoing, the Court is satisfied that the Board’s decision
is supported by substantial evidence and free from legal error. Accordingly, the
decision of the Board is AFFIRMED.
IT IS SO ORDERED.
/'.1”' q_
f “-~ ' :» -* '
Judge Charles E. liltftler'/
19 Rawle at 215.