Opinion
C.A. No. OOA-06-003-PLA.
Submitted: November 14, 2000.
Decided: February 9, 2001.
Upon Appeal From A Decision of the Unemployment Insurance Appeal Board.
REVERSED and REMANDED.
Robert F. Stewart, Jr., Esquire of Dilworth Paxson LLP, Wilmington, DE. Attorney for Appellant.
Roger M. Levy, Esquire, Wilmington, DE. Attorney for Appellee.
This is an appeal by the employer from a decision of the Unemployment Insurance Appeal Board ("Appeal Board"), granting unemployment benefits to an employee, who was terminated for absenteeism after allegedly being "no show, no call" for work on December 19, 1999, and five days in January of the year 2000.
Appellee, Charles Bethard ("Claimant"), began employment with Appellant, H. K. Griffith, Inc. ("Employer"), on July 25, 1988. In October 1999, after eleven years with Employer, Claimant was confronted by his supervisor for repeatedly failing to call to advise that he would not be coming to work. Claimant was informed that the owners of the company desired to dismiss him, but they would extend him another chance because he had been with the company for so long. At the suggestion of John McGlocklin, the President of H. K. Griffith, Claimant took a 30-day leave of absence.
Claimant was reemployed on November 9, 1999, after signing a conditional reemployment agreement. The agreement stated that Claimant must bring his attendance record back up to a satisfactory level and that there not be any absences or no shows" without a legitimate excuse supported by written documentation.
Subsequent to Claimant agreeing to the new conditions, Employer was forced to terminate him in January 2000, after he continued the practice of failing to appear for work. Claimant thereafter applied for unemployment compensation benefits on February 4, 2000. On February 15, 2000, a Department of Labor Claims Deputy determined that Claimant was discharged by Employer for just cause and was therefore ineligible to receive benefits.
Claimant appealed the Claims Deputy's finding and a hearing was held before the Appeals Referee on March 15, 2000. On March 23, 2000, the Appeals Referee issued a written decision upholding the Deputy's decision that Claimant was ineligible to receive benefits. The Appeals Referee denied unemployment compensation on the statutory ground set forth in 19 Del. C., § 3315(2) that disqualifies an employee who "has been discharged from his employment for just cause in connection with his work." The Appeals Referee found that the signing of the reemployment agreement by Claimant and his failure thereafter to show up for work "clearly violated the terms of the reemployment agreement and rose to the level of willful and wanton misconduct."
Ref Dec. at 3.
Claimant appealed the decision of the Appeals Referee to the Appeal Board. On May 10, 2000, the Appeal Board held a hearing wherein the Appeal Board adopted the findings of fact by the Appeals Referee and took further testimony from Claimant and two representatives of Employer. On May 19, 2000, the Appeal Board issued its decision reversing the finding of the Appeals Referee. An appeal by Employer to this Court pursuant to 19 Del. C., § 3323 followed.
On appeal, Employer argues that the Appeal Board's determination that there was no just cause for terminating Claimant is not supported by substantial evidence in the record, that the Appeal Board's decision was based on unsworn, hearsay statements, and that "just cause, existed for Claimant's dismissal and denial of unemployment compensation. Claimant, on the other hand, submits that the Appeal Board's decision is legally sound and the factual findings by the Board are supported by substantial evidence in the record.
See Abex v. Todd, Del. Super. 235 A.2d 271, 272 (1967) (Referring to "just cause" as a "wilful or wanton act in violation of either the employer's interest, or of the employee's duties, or of the employee's expected standard of conduct.").
Both the Delaware Supreme Court and this Court have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is not the appellate Court's role to weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. However, where substantial evidence does not exist to support the Appeal Board's finding, or where the Appeal Board has made a legal mistake, the decision of the Appeal Board must be reversed.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965).
Oceanport Ind v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr., 515 A.2d 397 (1986).
Johnson, 213 A.2d at 66; See McManus v. Christiana Svc. Co., Del. Super., C.A. No. 96A-06-013, 1997 Del. Super. LEXIS 68, Silverman, J., *4 (Jan. 31, 1997) (Opinion and ORDER).
19 Del. C., § 3323(a). See Unemployment Ins. App. Bd. v. Duncan, Del. Supr., 337 A.2d 308 (1975).
Delgado v. Unemployment Ins. Appeal Bd., Del. Super., 295 A.2d 585 (1972).
This Court's review of the record reveals that the Appeal Board refused to receive any evidence concerning Claimant's prior employment history or absentee record with Employer. Specifically, the record of the Appeal Board contained the following dialogue:
Roger Flanagan: [M]y name is Roger Flanagan. I'm a co-owner with H. K. Griffith Inc. The information I had to offer would go back to the attendance log, indicated that in the last year that Chuck [Claimant] was employed he had missed 25 days over a nine month period.
The Chairman: That's not the issue.
Board Member: The issue is the period of time from December the 19th to [ ] January 29th. That's the only issue. That's what he was terminated for . . . the five absences in that period of time. What went on before that may be the reason that you drew that up [the reemployment agreement], but we're concerned, we'd like you to address those five specific absences.
Tr. Bd. Hrg. at 6-7 (emphasis added).
After making the foregoing statements, the Chairman proceeded to require the witnesses to focus their testimony exclusively on the six dates that Claimant had missed work during the brief period from December 19, 1999 through January 31, 2000. After finding that Claimant had legitimate excuses for five of those six days, the Board concluded that "[m]issing one day of work is not willful or wanton misconduct."
Bd. Dec. at 1.
In deciding to ignore Claimant's pre-October 1999 absences, and in rejecting any evidence concerning Claimant's chronic and longstanding pattern of abuse of leave, the Appeal Board abused its discretion. Claimant's short period of absences since he returned to work cannot be viewed in isolation, as it is only a brief segment of Claimant's entire work history — something Claimant's attorney himself argued to the Appeals Referee. Rather, Claimant's more recent violations of his conditional employment must be considered in the pattern of absenteeism in which they fall. Since the Appeal Board failed to consider all of Claimant's prior history, and reached its finding that the Claimant's dismissal was without just cause based on only a portion of the relevant evidence proffered by Employer, this Court cannot uphold the Board's decision. The Court simply has no way to determine whether and to what extent the additional relevant evidence may have altered the Board's ultimate conclusion.
Roger Levy: Well, what I'm really trying to show, Your Honor, is.
The Referee: Is background?
Roger Levy: Is background on this . . .
Roger Levy: A continual period of employment . . .
Tr. Ref Hrg. at 30-31.
Claimant simply cannot have it both ways. If he wants the Board to consider his longevity with the company then his entire leave history must also be taken into account.
The Unemployment Insurance Appeal Boards' error in excluding relevant evidence requires that its decision granting benefits to Claimant Charles Bethard be Reversed. The case is Remanded to the Appeal Board or further hearing and findings consistent with this decision. IT IS SO ORDERED.
See 29 Del. C., § 10142(c), which provides that, upon appeal of a decision of an administrative agency, "if the [Superior] Court determines that the record is insufficient for its review, it shall remand the case to the agency for further proceedings on the record." See, e.g., McManus v. Christiana Svc. Co., Del. Super., C.A. No. 96A-06-013, 1997 Del. Super. LEXIS 68, Silverman, J., *4 (Jan. 31, 1997) (Opinion and Order) (remanding case to the Unemployment Insurance Appeal Board to make findings sufficient for appellate review).
Peggy L. Ableman, Judge
Original to Prothonotary — Civil