Harris v. Delaware Department of Labor

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHANEIA HARRIS, )
)
Claimant-Appellant, )
)
v. ) C.A. No. N19A-11-005 VLM
)
DELAWARE DEPARTMENT OF )
LABOR and )
THE UNEMPLOYMENT )
INSURANCE APPEAL BOARD )
)
Employer-Appellees. )
ORDER
Date Submitted: September 3, 2020
Date Decided: November 30, 2020
Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment
Insurance Appeal Board, AFFIRMED.
John D. Stant II, Esquire, Legal Services Corporation of Delaware, Inc.,
Wilmington, DE. Attorney for Appellant.
Stacey X. Stewart, Esquire, Department of Justice, Wilmington, DE.
Attorney for the Delaware Department of Labor.
Monica L. Townsend, Esquire, Department of Justice, Wilmington, DE.
Attorney for Appellee Unemployment Insurance Appeal Board.
MEDINILLA, J.
1
I. INTRODUCTION
Appellant, Shaneia Harris (“Harris”) appeals a decision of the Unemployment
Insurance Appeal Board (“Board”) that found that the Delaware Department of
Labor (“Employer”) discharged her for just cause, thereby disqualifying her from
receiving unemployment insurance benefits pursuant to 19 Del. C. § 3314(2). Upon
consideration of the arguments, submissions of the parties, and the record in this
case, the Court hereby finds as follows:
1. Harris worked as part-time (casual employment) security guard for
approximately six months from October 2018 to April 2019.1 In the early months
of her employment, Harris’s supervisor appeared relatively flexible and allowed
Harris to take days off as needed.2 It is undisputed that attendance and tardiness
issues started in December and lasted through the remainder of her time with
Employer. 3
2. On March 22, 2019, she was verbally warned that her attendance would
have to improve. 4 On March 25, 2019, Harris’s supervisor sent an email confirming
that her attendance needed to improve,5 stating, “further [attendance issues] will be
1
See Opening Brief, D.I. 9, at 1 [hereinafter Opening Br.].
2
See Opening Br. at 1; R. at 23.
3
From December 27 through April 22, 2019, Employer recorded fifteen instances of lateness or
absenteeism. R. at 55.
4
See Opening Br. at 2; R. at 26.
5
R. at 51.
2
considered insubordination and dealt with accordingly.” 6 Thereafter, Employer
documented seven additional attendance issues and terminated her employment on
April 24, 2019.7
3. Harris filed a claim for unemployment benefits with the Division of
Unemployment Insurance. 8 On May 21, 2019, a Claims Deputy found that
Employer discharged Harris for just cause disqualifying her from unemployment
benefits pursuant to 19 Del. C. § 3314(2).9 Harris timely appealed to an Appeals
Referee.10 On June 18, 2019, following a hearing, the Appeals Referee affirmed the
Claims Deputy’s decision that Employer met its burden of proof that Harris’s
termination was for just cause. Harris timely appealed the decision to the
Unemployment Insurance Appeal Board (Board.)11
4. On October 23, 2019, the Board heard Harris’s appeal.12 Harris argued
the Appeals Referee’s decision was legally incorrect because she never received an
unequivocal warning. 13 The Board disagreed. On October 28, 2019, the Board
upheld the Appeals Referee’s decision finding that the email Harris received from
6
Id.
7
See Opening Br. at 4; R. at 51.
8
See Opening Br. at 2.
9
See id.; R. at 1-2.
10
See Opening Br. at 2; R. at 7.
11
See Opening Br. at 2; R. at 54-55.
12
See Opening Br. at 4.
13
Id.; R. at 64.
3
her supervisor was a “clear warning” of the disciplinary consequences that
occurred. 14
5. On November 6, 2019, Harris appealed the Board’s decision. On
December 30, 2019, Harris, through counsel, filed her opening brief. On March 10,
2020, Employer filed its Response. The same day, the Board filed a letter stating it
took no position. Due to the global pandemic, review of this matter was temporarily
stayed.15 On July 21, 2020, Harris filed her Reply brief and this Court was assigned
the matter on September 3, 2020. The matter is now ripe for review.
II. STANDARD OF REVIEW
6. On an appeal from the Board, this “[C]ourt must determine whether the
findings and conclusions of the Board are free from legal error” and whether they
are “supported by substantial evidence in the record.” 16 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”17 The Court does not “weigh the evidence or make determinations
14
R. at 75.
15
The United States of America and the State of Delaware declared states of emergency due to
COVID-19 that resulted in court closures to address public safety concerns. Per Administrative
Directives of the Supreme Court of the State of Delaware, “[u]nder the authority of 10 Del. C. §
2004, the judicial emergency for all State courts and their facilities in Delaware [was] extended
for another 30 days effective November 5, 2020 . . . .” Administrative Order No. 12 Extension of
Judicial Emergency (Del. Nov. 3, 2020).
16
Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. July 7, 2011)
(citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del. 1981); Pochvatilla v.
United States Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. §
3323(a)).
17
Byrd v. Westaff USA, Inc., 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting
Oceanport Industries, Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)).
4
based on credibility or facts.”18 Absent an abuse of discretion by the Board, this
Court will uphold the Board’s determination. 19
III. DISCUSSION
7. Pursuant to 19 Del. C. § 3314(2), an individual is disqualified from
receiving unemployment benefits when terminated for “just cause.”20 Under
Delaware law, just cause is a “willful or wanton act in violation of either the
employee’s interests, or the employee’s duties, or of the employee’s expected
standard of conduct.”21 An isolated absence will likely not suffice.22 When an
employee is aware of a company policy and/or received adequate warning, “the court
has held repeated absenteeism to be a ‘willful and wanton’ violation of the
‘employer’s interests’ and the ‘employee’s duty.’”23
8. Here, the Board considered whether Harris knew that her absences were
in violation of Employer’s policy. The Employer presented evidence that various
verbal discussions took place between Harris and her supervisor related to her
18
Id. (citing Johnson v. Chrysler Corp., 203 A.2d 64, 66 (Del. 1965)).
19
See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
20
19 Del. C. § 3314(2) provides that an individual shall be disqualified from benefits,
“[f]or the week in which the individual was discharged from the individual's 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 (whether or not consecutive) and has earned wages in
other employment equal to not less than 4 times the weekly benefit amount.”
21
Keim v. Greenhurst Farms, 2001 WL 1490060, at *2 (Del. Super. Nov. 19, 2001) (citing Abex
Corp. v. Todd, 235 A.2d 271, 272 (Del. Super. 1967)).
22
See Martin v. Delaware Supermarkets, Inc., 2012 WL 2700460, at *4 (Del. Super. July 5, 2012)
(citing Weaver v. Emp’t Sec. Comm’n, 274 A.2d 446, 447 (Del. Super. 1971); Boughton v. Division
of Unemployment Ins. of Dept. of Labor, 300 A.2d 25, 27 (Del. Super. 1972)).
23
Martin, 2012 WL 2700460, at *4 (quoting Kiem, 2001 WL 1490060, at *2).
5
tardiness and absences. Harris claims the Employer was tolerant of the conduct and
focuses primarily on the language of the sole written email that served to
memorialize the then most recent communication between her and her supervisor to
suggest that the Board erred in finding that the warning was unambiguous. This
Court disagrees.
9. The Court considers and rejects Harris’s argument that because her
supervisor may have previously tolerated her absences, her Employer failed to
provide an unambiguous warning that termination would result for continued
absences. A warning, written or otherwise, is only required when there has been
prior acquiescence by the employer. 24 As noted, that was not the case here. While
the supervisor may have been tolerant at first, Harris’s conduct did not improve
despite attempts to speak to her about it. By March 2019, the record is clear that
Harris received warning – first verbal, then in written form via email – that her
absences and tardiness continued to be problematic. 25
10. Equally unavailing is Harris’s argument that the written warning was
ambiguous because it did not explicitly state that her absences would result in
termination. Delaware law does not require a warning inform the employee of
24
Ortiz v. Unemployment Ins. Appeals Bd., 317 A.2d 100, 101 (Del. 1974) (fairness required a
waring where employer condoned absenteeism for months but warning not always required); see
also Smoot v. Comcast Cablevision, 2004 WL 2914287, at *4 (Del. Super. Dec. 16, 2004) (“As
long as the company policy is clearly communicated to the employee, the employer has given
adequate notice to justify termination of employment after a single violation of that policy.”).
25
See R. at 26, 51.
6
termination.26 Instead, the warning must put employee on sufficient notice that her
behavior was in violation of Employer’s Policy. 27 That was done. In addition to
speaking directly with her on March 22, her supervisor memorialized the discussion
via email reminding her that absences were against the employer’s policy, stating
that “further acts of absenteeism would be considered insubordination and dealt with
accordingly.”28 She was also directed to contact her supervisor if she was going to
be late or not show up.29 In the last instance, she did neither.30 Even if Employer
had tolerated Harris’s behavior at first (after perhaps the first seven instances of
lateness or tardiness,) the Court finds that Employer did not continue to do so,
providing an unambiguous warning in March 2019.
11. After both verbal and written warning, Harris then engaged in several
“further incidents” of unchanged conduct before Employer took the forewarned
disciplinary action of termination. As such, the Board had before it substantial
evidence to support its ruling that the continued conduct was “willful or wanton,”
26
Delaware law does not require warnings to state the consequences of given acts to any particular
level of specificity. Coleman v. Dept. of Labor, 288 A.2d 285, 288 (Del. 1972) (“[The] absence
of advanced warning concerning the consequences of given acts, as opposed to notice of their
impropriety, does not preclude a discharge for willful misconduct.”); see also Powell v. Northeast
Treatment Centers, Inc., 2003 WL 23274835, at *5 (Del. Super. Dec. 17, 2003) (“This warning
need not expressly state the ultimate consequences, but must give notice of the impropriety of the
acts.”); Breese v. Unemployment Ins. Appeals Bd., 1993 WL 258853, at *3 (Del. Super. June 24,
1993) (inferring that written warning of consequences is not required).
27
See Bear-Glasgow Dental v. Edwards, 2007 WL 1651988, at *3 (Del. Super. May 29, 2007).
28
R. at 51 (emphasis added).
29
Id. at 28-29.
30
Id. at 29-30.
7
and her inability to show up for work on time or at all (albeit perhaps for good
reasons) was nevertheless “in violation of either the employer’s interests, or the
employee’s duties, or of the employee’s expected standard of conduct.” 31
12. The record supports a finding that Employer met its burden that Harris
was terminated for just cause and not eligible for unemployment benefits. There is
no error of law. For the foregoing reasons, the Board’s decision is AFFIRMED.
IT IS SO ORDERED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary
31
Kiem, 2001 WL 1490060, at *2 (citing Abex Corp. v. Todd, 235 A.2d 271,272 (Del. Super.
1997)).
8