Summary
noting that the court may perform a less stringent review of documents submitted by a pro se litigant
Summary of this case from Camara v. Marine LubricantsOpinion
CA No. 01A-08-010-JEB
Submitted: December 7, 2001
Decided: March 28, 2002
Appeal from a Decision of the Unemployment Insurance Appeal Board.
Decision Affirmed.
Carolyn J. Witcher, Pro Se Appellant.
Wendy K. Voss, Esquire Attorney for Delaware Park — Appellee.
Stephani Ballard, Esquire Attorney for the Unemployment Insurance Appeal Board — Appellee.
This is the Court's decision on Claimant Carolyn Witcher's appeal of a decision of the Unemployment Insurance Appeal Board (Board) denying her petition for unemployment benefits. For the reasons explained below, the Board's decision is Affirmed.
FACTS
Claimant was employed as a booth cashier by Delaware Park LLC (Employer) from October 12, 1999 until January 3, 2001. She was terminated from her employment as a result of repeated violations of Employer's absenteeism policy, which involves assessment of points for unexcused absences and a progressive form of discipline. According to the employee handbook, which Claimant received and signed for, one point is assessed for each day of absence if the employee calls in to report the absence. As many as six points can be assessed for the first no call/no show day (when an employee is absent and fails to call), and one point for each subsequent no call/no show day. The progressive discipline program includes a verbal warning, a written warning, a final written warning with a one to three-day suspension, and, finally, termination. An employee who accumulates seven or more points within a calendar year, and has received all the steps of progressive discipline may be terminated. These rules do not apply to days for which an employee presents a note from a physician.
The record evidence pertaining to Claimant's absenteeism includes Employer's records documenting Claimant's accumulation of points and steps of progressive discipline. On September 14, 2000, Claimant received one point for two instances of lateness and three points for absenteeism on July 15 and 16, and September 10, 2000. On December 15, 2000, Claimant received one point and a written warning for being absent on December 13, and 14, 2000. On December 27, 2000, Claimant received six points for absence on December 19 through 23 and December 26, 2000.
Certified Record at 0028, hereinafter referred to as "Rec. at page no."
Rec. at 0029.
Rec. at 0030.
When she returned to work on December 27, she was informed of the additional points and was given a second written warning and a one-day suspension for December 28. She called out again on December 29 and 30. On January 1, 2001, a day which most employees were expected to work because of the high volume of business, Claimant did not call and did not report to work. On January 3, she received a phone call informing her that she had been terminated from her position.
Claimant filed a petition for unemployment insurance benefits with the Department of Labor, Division of Unemployment, which was denied by a claims deputy. Claimant appealed this result to an appeals referee who reversed the deputy's decision and granted Claimant's petition for benefits. Employer appealed to the Board. After conducting hearing, the Board found that Claimant was discharged from her work for just cause in connection with her work and denied her petition. Claimant filed a timely appeal to the Superior Court. Briefing is complete, and the issues are ripe for decision.
STANDARD OF REVIEW
In reviewing a decision of the Board, the Court's role is to determine whether the Board's findings are supported by substantial evidence and are free from legal error. Substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion. The Court does not weigh the evidence, determine questions of credibility or make factual findings. It merely determines if the evidence is legally adequate to support the Board's findings.
Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239 (Del.Super. 1979). See also 19 Del. C. § 3323(a).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del.Supr. 1988).
Johnson v. Chrysler, 213 A.2d 64, 66 (Del.Supr. 1960).
Title 29 Del. C. § 10142(d).
DISCUSSION
Because Claimant is a pro se litigant, her written submissions to the Court may be held to a somewhat less stringent standard than those drafted by lawyers. The Court will therefore construe Claimant's arguments as a challenge to the Board's factual findings and legal conclusions. Employer argues that the Board's findings are supported by substantial evidence and that the Board made no error of law.Under Delaware unemployment law, an individual is disqualified from receiving unemployment benefits if she was discharged for "just cause in connection" with her work. The burden is on the employer to show that the employee was terminated for just cause. The element of just cause means wilful or wanton conduct in violation of the employer's interest, the employee's duties or the employee's expected standard of conduct.
Title 19 Del. C. § 3315.
Evans v. Tansley, 1988 WL 32033, at *1 (Del.Supr.).
Ortiz v. Unemployment Ins. Appeal Bd., 317 A.2d 100, 101 (Del.Supr. 1974).
In this case, the record evidence shows that Claimant had accrued 13 points as of December 30, 2000. The no call/no show of January 1, 2000 resulted in five more points. The record also shows that the various steps of progressive discipline had been followed. Employer's records document the absences, the points accrued and the disciplinary steps taken. Each sheet is signed by various supervisors, as well as Claimant, indicating her receipt of the report if not her agreement with it.
Claimant argues that she was excused from work for her December and January absences because she was still experiencing the effects of a work accident that occurred on September 11, 2000, when she hit her head on a counter. The record shows that as a result of the work accident, Claimant missed six weeks from work and was excused by her treating physician, Dr. Goodman. Employer suggested that she see a neurologist to help resolve the problem, and Claimant selected Dr. Leopole. After examining her, Dr. Leopole wrote a note releasing Claimant to work without restrictions on December 4, 2000.
Claimant also had two notes from Dr. Goodman. She presented one dated December 21, 2000, which excused her from December 18 through December 22. Employer, believing that Claimant obtained this note only after she realized she was receiving points for her absences, chose to rely on the note from Dr. Leopole indicating that Claimant had recovered from the work accident on December 4, 2000, and could return to work without restriction. Claimant asserted that she was still having headaches because of the work accident and that her absences were therefore excusable. Even if Dr. Goodman's note was valid excuse for December 18 through 22, Claimant accrued further points by calling in sick on December 23, 26, 29 and 30, 2000. Claimant made no attempt to excuse these absences until she presented for the first time at the referee's hearing a note from Dr. Goodman, dated February 8, 2001, excusing her from work retroactively from December 23, 2000. The Board was well within is discretion when it gave this post-dated note no weight. The result is that Claimant's last four absences in December were unexcused and that because of the progressive discipline, Claimant was well aware that she was dangerously near termination, as noted by the Board.
Claimant's decision not to report to work on January 1, 2001, and not to notify her supervisor of her absence was the proverbial last straw. She was a no call/no show on one of Employer's busiest days when all but the most senior employees are scheduled to work. Although Claimant asserts that this was not her regularly scheduled work day, Employer presented evidence that the schedule was posted at least two weeks earlier and that Claimant had had both the obligation and the opportunity to check her schedule. Based on the number of absences and Employer's absenteeism policy, of which Claimant was well aware, the Court concludes that Employer carried its burden of showing that Claimant's decision not to go to work and not to call in to report her absence was wilful misconduct in violation of her duties and of Employer's expected standard of conduct. The Board made no error of law in denying Claimant's petition for unemployment benefits.
CONCLUSION
For the foregoing reasons, the Board's decision denying Claimant Carolyn Witcher's petition for unemployment benefits is Affirmed.
It Is So ORDERED.