Powell v. Northeast Treatment Centers, Inc., C.A. No. 03A-03-002 PLA (Del. Super 12/17/2003)
| Decision Date | 17 December 2003 |
| Docket Number | C.A. No. 03A-03-002 PLA. |
| Parties | GEORGE POWELL, Appellant v. NORTHEAST TREATMENT CENTERS, INC., and UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellees. |
| Court | Delaware Superior Court |
George Powell, Wilmington, Delaware, Pro Se, Appellant.
Bruce C. Heron, Esquire, Akin & Herron, P.A., Wilmington, Delaware, Attorney for NorthEast Treatment Centers, Inc., Appellee.
Stephani J. Ballard, Esquire, Deputy Attorney General for the State of Delaware, Wilmington, Delaware, Attorney for Unemployment Insurance Appeal Board, Appellee.
George Powell ("Appellant") has appealed from the decision of the Unemployment Insurance Appeal Board of the State of Delaware ("UIAB" or "Board") wherein the Board affirmed the decision of the Appeals Referee that Appellant had been discharged for just cause and, therefore, is disqualified from receiving unemployment benefits pursuant to 19 Del. C. § 3315(2). Upon review of the parties' submissions and the record below, the Court concludes that the Board's decision should be affirmed.
Appellant was employed by NorthEast Treatment Centers, Inc. ("NET" or "Employer") a/k/a Lower Kensington, from January 4, 2000 until September 16, 2002. NET is a section 501(c)(3) non-profit corporation that has been providing behavioral health and social services in Delaware and Pennsylvania for over 30 years. Effective September 17, 2002, Appellant was terminated from his position as a Child Care Counselor at NET's Iron Hill Residence Center located in Newark, Delaware. Specifically, NET's Iron Hill Residential Center provides a residential treatment program for youths recovering from substance abuse addiction.
The first incident culminating in Appellant's discharge from NET occurred on September 4, 2002, two weeks prior to his official termination date. At that time, he tapped a co-worker, Gennie Tolliver, on the buttocks. According to Appellant, "[I] accidentally tapped her, I meant to tap her on her back and it went all the way down to her butt."1 In her testimony to the Board, Ms. Toliver testified that Appellant "reached up under her and grabbed her behind."2 She reported the incident to her immediate supervisor, Fred Cokney. Mr. Cokney testified that he had a conversation with the Appellant regarding the incident, at which time the Appellant "[a]dmitted that he smacked her on the butt and he claimed that it was more of like a football teammate kind of smack and not a sexual smack."3 Mr. Cokney further testified that he told the Appellant that Ms. Toliver was offended by the touching, explained to Appellant the difference between talking and touching, and instructed him on the seriousness of the offense. Although Mr. Cokney did not provide the Appellant with a written or verbal warning that his job was in jeopardy, he did counsel the Appellant on the impropriety and gravity of his conduct. Appellant conceded, and Ms. Toliver testified to the fact, that Appellant subsequently apologized to Ms. Toliver, but that she still remained wary of him.4
On September 11, 2002, Appellant, Ms. Toliver, and several other employees were seated at the dinner table during a break period while the teenagers were upstairs having their "quiet time." According to Appellant's testimony, Ms. Toliver was holding on to his food and told him that he wasn't going to get any because he was too big. Appellant claims that, jokingly, he told Ms. Toliver to give him his food or he was going to go over and "tap her on the butt."5 On the following day, September 12, 2002, Ms. Toliver reported the second incident to Mr. Cokney. Mr. Cokney subsequently discussed this episode with his direct supervisor, Mr. McFeeley, and Appellant was placed on suspension pending the outcome of further investigation. Appellant was not scheduled to return to work until Monday, September 16, 2002.
On September 16, 2002, Mr. Cokney spoke with Appellant and apprised him of Ms. Toliver's second allegation of sexual harassment. Appellant felt that he could not be around the teenagers knowing that his job was in jeopardy, so he requested the rest of the day off. On Tuesday, Appellant called into work and Mr. Cokney informed him that he was being investigated with a recommendation for termination. A week later, Mr. Cokney informed Appellant that NET had investigated the September 11, 2003 incident and that Appellant had been discharged, effective September 17, 2002.
Following his termination from NET, Appellant filed for unemployment compensation benefits on September 29, 2002. On October 11, 2002, the Claims Deputy of the Delaware Department of Labor, Division of Unemployment Insurance, made the determination that Appellant was disqualified from receipt of benefits. After examining the facts surrounding Appellant's discharge, the Claims Deputy concluded that NET had "just cause"6 to discharge him, based on a determination that Appellant's actions rose to a level of wanton or wilful misconduct. The Claims Deputy emphasized that, when discharging an employee for just cause, the burden of proof rests on the employer and requires a showing that the employee was conscious of his conduct and recklessly indifferent to the consequences. The Claims Deputy found that NET had satisfied its burden of proof.
Appellant filed a timely appeal on October 21, 2002. A hearing before an Appeals Referee of the Delaware Department of Labor, Division of Unemployment Insurance, was conducted on December 11, 2002. The Appellant testified before the Appeals Referee. NET did not participate, nor did it have a representative present on its behalf. On January 7, 2003, the Appeals Referee issued its decision, affirming the decision of the Claims Deputy that Appellant was discharged for just cause and was disqualified from receipt of unemployment benefits. Incorporated in its findings of facts, the Appeals Referee elaborated on the Claims Deputy's findings, noting that:
In a discharge case, the employer must show by a preponderance of the evidence that the claimant was discharged for just cause in connection with his work. Just cause exists where the claimant commits a wilful or wanton act or engages in a wilful or wanton pattern of conduct in violation of the employer's interest, his duty to the employer or his expected standard of conduct.
The issue in this case is whether the claimant committed an act of wilful or wanton misconduct that provided the employer with just cause to discharge him .... [F]or there to be a finding of wilful or wanton misconduct a prior unequivocal warning is required putting the employee on notice that a repetition of certain behavior will be grounds for dismissal. There are some types of conduct, however, which by their very nature must necessarily constitute wilful or wanton misconduct. These include some instances of insubordination, theft, violence or threats of violence, and other activities where the employee acts with reckless disregard for the employer's interests. The claimant, while not specifically warned after the first incident, was counseled and must have known that his behavior was not acceptable . . . . [H]owever, two weeks later he referred to the previous incident in front of other staff as he "joked" with the co-worker. This activity could not be condoned by the employer . . . . [T]o joke about a previous allegation of sexual harassment in this manner was a reckless act that showed a wanton disregard for the interest of the employer and for the employment relationship.7
On January 14, 2003, pursuant to 19 Del. C. § 3318, Appellant filed a timely appeal from the Appeals Referee's decision to the Board. Appellant attended the Board hearing conducted on February 5, 2003, and presented Dara Boger and Orenda Poindexter, two witnesses on his behalf. Also present were Tim McFeeley, employer representative, Ms. Toliver and Mr. Cokney, employer witnesses.
The Board issued its decision on February 19, and its revised decision on March 5, both of which affirmed the decision of the Appeals Referee.8 In its decision, the Board noted that it had considered the entire record and had adopted the findings of fact and conclusions of law enumerated by the Appeals Referee. Specifically, the Board found that Appellant's joking about the prior touching incident constituted wilful or wanton conduct, disqualifying him from receiving benefits.9 Further, the Board accepted Ms. Toliver's testimony as more credible than that of Appellant, found that the Appellant engaged in the touching intentionally, and also that he wilfully or wantonly made the second remark.10 The Board noted that, "[A]ppellant's conduct was clearly not the sort of conduct an employer should have to tolerate in the work place and was in violation of employer's policy."11
The Board's decision became final on March 15, 2003. Appellant filed a timely notice of appeal from the Board's decision to this Court on March 14, 2003. In the instant appeal, Appellant claims four grounds upon which the Board's decision should be reversed: 1) "third letter from Board reversing first decision" 2) "I was not a wanton act"; 3) "I was not given a warning"; and 4) "Gennie Toliver lied, she did not place her hand on the Bible."
NET timely filed its answer brief and raises two issues on appeal. First, Net contends that Appellant's conduct on September 4 and on September 11, 2003, respectively, constituted "just cause" for his discharge from employment with NET. Second, having been properly discharged for "just cause," Appellant is not entitled to unemployment insurance benefits.
The Delaware Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency.12 The function of the...
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