Opinion
C.A. No. 03A-12-001 RRC.
Submitted: September 1, 2004.
Decided: November 23, 2004.
On Appeal From a Decision of the Unemployment Insurance Appeals Board.
AFFIRMED.Mary Frances Higgins, Esquire, The Law Offices of Mary Higgins, Odessa, Delaware.
Hilton R. Wescott, Greenwood, Delaware.
Dear Ms. Higgins and Mr. Wescott:
This is an appeal by T.A.H. First, Inc. ("Employer") to the Superior Court of Kent County from a decision of the Unemployment Insurance Appeals Board ("Board"). Hilton R. Wescott ("Employee") applied for unemployment benefits and Employer challenged Employee's eligibility. The Claims Deputy that decided the application found in favor of Employee and denied Employer's challenge. Employer appealed the Claims Deputy's decision and the Unemployment Insurance Appeals Referee reversed the Claims Deputy's decision and denied unemployment benefits to Employee. Employee appealed the Referee's decision to the Board, which reversed the Appeals Referee's decision and made Employee eligible for unemployment benefits.
The general facts underlying the instant case are not substantively in dispute by the parties; rather, the disagreement between the parties is about the interpretation of those facts and the reasonable inferences to be drawn from them. The Board adopted the summary of evidence presented to the Appeals Referee as well as new evidence presented to the Board. This Court adopts the facts found by the Board and by the Appeals Referee as well as accepting as true certain additional facts added below that Employer has stressed as pertinent to the case. The evidence as accepted by the Board is summarized by this Court:
Decision of the Unemployment Insurance Appeals Board at 1.
1. Employer from June 19, 2003 until July 16, 2003 employed employee as an over-the-road truck driver. Employee was paid on a per-mile basis.
2. Employer discharged Employee for failure to follow the rules and regulations of the company and for an accident in which Employee damaged his company truck.
3. Employee was supposed to make a delivery in Selbyville, Delaware on the morning of the July 9, 2003. After making the delivery, Employee was to go to Baltimore, Maryland by 4 P.M. of the same day for a pick-up. Employee did not arrive in Selbyville until 2:15 P.M. and consequently by the time his truck was unloaded it was too late to make the pick-up in Baltimore. Employee testified that he called Employer and told him that he could not make the pick-up in Baltimore and that he was going to go home. Employee further testified that Employer did not seem to have a problem with him following this plan of action. Employer testified that Employee informed him that he could not make the pick-up on the 9th; however, Employee did not tell him that he was going home.
4. Employee had been loaded for the Selbyville delivery on the 8th in Connecticut. Employee apparently went to his home in Greenwood, Delaware between his pick-up in Connecticut and the delivery in Selbyville. Employee's daily log indicates that he was off duty from 7:15 P.M., when he arrived home, until 12:45 P.M., when he left his home to make the delivery in Selbyville. Employee testified that he had not spent all of the time at his home but rather he had taken his truck to Dover for service. Employee testified that Employer had told him to take the truck in for service. Employer did not address this contention directly; rather, Employer stated that Employee's Driver's Log indicates that Employer was off duty during this time and not on company business.
5. Employee went to Baltimore on the morning of July 10th and made a pick-up to be delivered in Connecticut the same day. Employee made his delivery in Connecticut and then picked up a delivery for Selbyville. Employee made his delivery in Selbyville at 12:15 P.M. on the 11th. He was supposed to go to Baltimore for a pick-up but he did not make it there by the 4 P.M. deadline for pickups.
6. Employer told Employee to remain in Baltimore to make the pick-up on the 12th, which was a Saturday. Employer testified that Employee refused to stay overnight and he returned from Baltimore on the afternoon of the 11th. Employee testified that he had informed Employer previously that he was unavailable because his son stayed with him on weekends. Employer denied that Employee had informed him of his unavailability. Employee testified that he was never told about the 4 P.M. pick-up deadline and that he decided to return to Delaware because the Employer had acquiesced to his returning home on July 9th under similar circumstances.
7. On July 15th, Employee went to Baltimore to acquire the shipment he was supposed to pick up on the 11th. Employee made the pick-up at the scheduled time; however, Employer testified that Employee had been offered a 3 A.M. pick up time that he refused.
8. Employee made his delivery in Connecticut on the 15th and then picked up a shipment for delivery in Upper Marlboro, Maryland on the same day. After making the delivery, the Employee was backing out of the customer's yard when he "jackknifed" the truck and damaged the cab of the truck. Employer testified that the accident occurred because Employee was driving recklessly. Employee testified that the incident was not intentional but was an accident.
9. Employer testified that Employee had used unauthorized routes on his deliveries. Employer further testified that the alternate routes resulted in excess charges to the Employer in gas, wear and tear on the truck, and increased mileage that augmented Employee's pay rate. Employee did not dispute that he took alternative routes but he testified that he took the routes to avoid delays and traffic jams.
10. Employer testified that Employee did not fill out his "recap" reports in violation of company policy. Employee admitted that he did not fill out the "recap" reports because other employees were not required to fill out the reports.
Employer argues that the Board erred as a matter of law in holding that there was substantial evidence to support its finding that Employee had been terminated without "just cause." Employer asserts that the record shows substantial evidence that the Employee was terminated with "just cause" because he was not authorized to act as he did on the specified occasions, that he received a personal benefit from the challenged behavior and he had been warned prior to termination that his actions were unacceptable. Employer further argues that Employee's use of alternative routes and his refusal to remain in Baltimore on July 11, 2003 (coupled with his returning to Delaware) were acts of insubordination. Employer contends that Employee's action were not for a "good purpose" but instead exposed Employer to added expense by adding mileage to the deliveries, which resulted in extra gas and fuel tax charges, wear and tear on the truck, and increased payment to Employee. Employer also argues that the reason Employee missed his pick-ups on July 9, 2003 and July 11, 2003 was the result of Employee's misconduct and was not for a "good purpose."
At the hearing, Employer asserted that the accident on July 15th was a contributing factor in Employee's dismissal. However, on appeal, Employer mentions the accident in the "Statement of Facts" section of the opening brief but does not argue the import of the accident in the "Argument" section. This Court therefore finds that this argument has been waived on appeal. Murphy v. State, 632 A.2d 1150 (Del. 1993). Employer also argues that the Board erred as a matter of law when it made no findings regarding Employee's receipt of unemployment benefits in New Jersey. However, the argument is made in a conclusory manner without any evidence to support it. This Court finds this argument also has been waived on appeal. Id.
Employer's Opening Brief at 12, (hereinafter "Employer's Op. Br. at ___").
Id. at 9, 11.
Id. at 10.
Employee argues in his one page submission to this Court that the Board did not err as a matter of law in holding that there was substantial evidence that Employee was terminated without "just cause." Employee contends that the accident was not a wilful or wanton act because it was not premeditated. Employee also argues that he used alternative routes because he "[was . . . do[ing his] best to transport the freight without delay." Employee contends that "[w]hile [he] was driving for [Employer] there wasn't a problem until the incident." Employee argues that he was never written up and no disciplinary action had been taken against him until after he had the accident, at which time he argues he became an "irresponsible, disobedient employee" in Employer's eyes.
Employee's Answering Brief at 1 (hereinafter "Employee's Ans. Br. at ___.").
Id. at 1.
Employee's Ans. Br. at 1.
Id. at 1.
The Supreme Court and this Court repeatedly 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. On appeal, the court does not weigh the evidence, determine questions of credibility, or make its own factual findings. The reviewing court merely determines if the evidence is legally adequate to support the agency's factual findings. Upon appeal from a denial of unemployment insurance benefits, this Court is limited to consideration of the record that was before the Board. If substantial evidence exists and the Board made no error of law, its decision must be affirmed. The credibility of witnesses, the weight of their testimony, and the factual inferences drawn therefrom are for the Board to determine. On appeal this Court must view the record in the light most favorable to the party prevailing below. The Court must affirm the decision of an agency if the decision is supported by substantial evidence even if the Court might have, in the first instance, reached an opposite conclusion.
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Johnson, 213 A.2d at 66.
See 19 Del. C. § 3323(a) (1995) (providing that, absent fraud, the factual findings of the Board shall be conclusive and the jurisdiction of a reviewing court shall be confined to questions of law).
Hubbard v. Unemployment Ins. Appeals Bd., 352 A.2d 761, 763 (Del. 1976).
Boughton v. Dept. of Labor, 300 A.2d 25, 26 (Del.Super. 1972).
Ingleside Homes, Inc. v. Gladden, 2003 Del Super. LEXIS 299 *14; Hundley v. Riverside Hospital, 1993 Del. Super. LEXIS 421 *16.
Ingleside Homes, Inc., 2003 Del Super. LEXIS 299 *14; Keating v. Diamond State Distribution, 1996 Del. Super. LEXIS 30 *6; Hundley v. Riverside Hospital, 1993 Del. Super. LEXIS 421 *16.
Brogan v. Value City Furniture, 2002 Del. Super. LEXIS 88 at *6.
This Court holds that the Board did not err as a matter of law in finding that there was substantial evidence that Employee was terminated without "just cause." Under the substantial evidence standard, "questions of credibility and conflicts in the evidence are resolved by the [Board]." This Court has held that where conflicting versions of an incident are "sufficient," the Board is entitled to believe one party over the other. This Court has further held that "on appeal [it] is bound by the lower tribunal's findings of fact in the absence of fraud and if supported by the evidence."
Abex Corp. v. Todd, 235 A.2d 271, 273 (Del.Super. 1967).
Abex Corp., 235 A.2d at 273, 274 (holding that "[t]o be sure, there was also evidence from which the Commission could have found that the . . . error was wilful or wanton . . . [h]owever, the Commission was entitled to believe [the employee's] version of the controversy").
Boughton, 300 A.2d at 26-27.
Under 19 Del. C. § 3314(2) an employee is disqualified for unemployment benefits if the person was discharged from his or her work for "just cause" in connection with the individual's work. The Delaware Supreme Court has held that "`just cause' generally exists if an employee commits a `wilful' or wanton act . . . in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct'." This Court in Boughton v. Dept. of Labor held that "`wanton' . . . means heedless, malicious or reckless, but does not require actual intent to cause harm . . . while [wilful] implies actual, specific or evil intent." The Boughton court also held that "a judgmental error onclaimant's part does not rise to the level of wilfulness or wantonness required to support a finding of just cause for dismissal."
19 Del. C. § 3314(2). Employer refers to 19 Del. C. § 3315(2) in its briefs; however, Chapter 33, Subpart II was amended in June 2004, subsequent to Employer's Opening Brief, such that § 3315 and § 3314 were substituted for each other. Section 3314 remained substantively the same.
Moeller v. Wilmington Savings Fund Society, 723 A.2d 1177, 1179 (Del. 1999) quoting Abex Corp., 235 A.2d at 272.
Boughton, 300 A.2d at 26.
Id. at 27.
Because both parties substantively agree that the incidents in question occurred, the question then before the Board was the interpretation of those incidents. Employer argues that the incidents demonstrate an insubordinate employee who was acting in a wilful and wanton manner. Employee argues that the incidents occurred either because he was trying to act in a conscientious manner or because of a misunderstanding between himself and Employer about his availability (as in the case of the refusal to work on Saturday, July 15, 2003). Absent written warnings or other tangible evidence, the Board had to choose whose testimony was more credible and therefore entitled to more weight. Employer does not argue how the evidence presented by Employee fails to meet the substantial evidence test, but instead argues that its evidence meets the substantial evidence test to support the contention that Employee was discharged for "just cause." However, this Court on appeal must view the evidence in the light most favorable to the Employee. That appellate standard governs this appeal.
Ingleside Homes, Inc. v. Gladden, 2003 Del Super. LEXIS 299 *14; Keating, 1996 Del. Super. LEXIS 30 *6; Hundley, 1993 Del. Super. LEXIS 421 *16.
Assuming arguendo that there was substantial evidence to support Employer's position, the Board was still entitled to give more weight to Employee's testimony based on a determination of credibility. While Employee may not have used the best judgment in some of his actions, there was substantial evidence from which the Board could reasonably find that Employee did not act in a wilful or wanton manner. This Court must affirm the decision of an agency if the decision is supported by substantial evidence even if the Court might have, in the first instance, reached an opposite conclusion. Employer has not met its burden on appeal that Employee's evidence did not meet the substantial evidence standard. The Board was free to make determinations of credibility and to decide whose evidence to give more weight.
Brogan, 2002 Del. Super. LEXIS 88 at *6.
For the forgoing reasons, the decision of the Board is AFFIRMED.