IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CATHRYN BYRD, ) ) Appellant, ) ) v. ) C.A. No. N15A-03-002 DCS ) VISION CENTER OF DELAWARE and ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD, ) ) Appellees. )
Submitted: October 1, 2015 Decided: December 16, 2015
On Appeal from the Decision of the Unemployment Insurance Appeal Board – AFFIRMED.
OPINION
Cathryn Byrd, Pro Se Appellant.
Scott E. Chambers, Esquire and Shae Chasanov, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware, Attorneys for Appellee Vision Center of Delaware.
Paige Schmittinger, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee the Unemployment Insurance Appeal Board.
STREETT, J. Introduction
Appellant Cathryn Byrd (“Appellant”) has appealed the February 20, 2015
decision of the Unemployment Insurance Appeal Board (the “Board”). The Board
determined that Appellant was discharged from her work for just cause and, as a
result, was disqualified from receiving unemployment benefits under 19 Del. C. §
3314(2). The Board found that Appellant’s former employer, Vision Center of
Delaware, (the “Employer”), established that Appellant had been discharged for
insubordination because Appellant willfully refused to complete reasonable duties
that the Employer assigned to her.
On appeal, Appellant contends that she “do[es] not believe that [she] was
insubordinate while working” for the Employer and that she “had no previous
warnings” prior to her discharge.1
For the reasons set forth below, the Board’s decision is affirmed.
Factual Background
Appellant was employed full-time as an optician by the Employer from June
23, 2014 until her discharge for insubordination on September 10, 2014.
The record shows that Appellant signed a “Contract of Employment Non-
Professional Employee” prior to commencing employment, which provided that:
[a]ll employee’s [sic] will be placed on a 90 day initial training and orientation period. This is a probationary 1 Appellant’s Opening Br. at 1 & 3.
2 period and dismissal may occur at any time during this period with no claim against the employer. 2
The “Contract of Employment Non-Professional Employee” also provided that:
[a]n employee may be terminated at any time for any material misrepresentation or deliberate omission of a material fact in the application or interview, theft, fraud, insubordination, dishonesty, willful misconduct, harassment of any fellow employee or patient or any pattern of discriminatory behavior or rudeness to patients or co-worker.3
Additionally, the “Contract of Employment Non-Professional Employee” outlines
progressive disciplinary measures for any “breach of office policies”:
First Offense: Verbal warning and documentation in personnel file.
Second Offense: Written warning and documentation in personnel file.
Third Offense: Termination of employment. 4
The record also shows that when Appellant was hired, her duties included
answering the Employer’s telephone and assisting the Employer’s patients with
selecting frames at the frame board. Appellant was not initially required to answer
the telephone while she learned the Employer’s computer system, however the
Employer’s Office Manager, Allison Brittingham (“Ms. Brittingham”), instructed
2 Record at 102 (hereinafter “R. at ”). 3 Id. 4 R. at 101.
3 Appellant to begin to answer the Employer’s telephone beginning the last week of
July 2014, approximately one month after she was hired.
On September 2, 2014, the Employer’s receptionist, who was already
involved in a telephone conversation, asked Appellant to answer another line of the
Employer’s telephone system. Appellant, who was not assisting a patient at that
time, refused to answer the telephone.
On September 3, 2014, Ms. Brittingham gave Appellant a verbal warning
about her refusal to answer the telephone and instructed her again to answer the
telephone.
On September 9, 2014, Appellant would not get up from her desk to assist a
patient at the frame board. Instead, Dr. Amy Farrall (“Dr. Farrall”), the owner of
Vision Center of Delaware, had to assist the patient.
That same evening, Dr. Farrall and Ms. Brittingham, Appellant’s superiors,
met with Appellant concerning her job performance, including Appellant’s refusal
to answer the telephone and to assist the patient at the frame board. During the
meeting, Appellant told them that she felt that she was doing her job and that she
was not going to change (i.e., perform certain duties as assigned). Dr. Farrall
verbally warned Appellant that she would be terminated if she continued to refuse
to perform some of her assigned duties. Appellant became “aggressive” and
“threatened” Dr. Farrall, so Dr. Farrall asked Appellant to leave.
4 The following morning (September 10, 2014), Appellant failed to report for
work. Ms. Brittingham contacted Appellant via text to inquire whether Appellant
had quit. Appellant responded that she thought she had been fired. Ms.
Brittingham replied that the Employer had not fired Appellant and Appellant stated
that she would come in to the office.
Appellant arrived at work two hours later (at approximately 12:20 p.m.).
Ms. Brittingham told Appellant that she and Dr. Farrall needed to speak to
Appellant after Dr. Farrall was finished with her patients. While Ms. Brittingham
and Appellant waited for Dr. Farrall to become available for the meeting, Ms.
Brittingham instructed Appellant to perform her job duties. Appellant again
refused to answer the telephone.
The September 10, 2014 meeting started between 12:45 and 1:00 p.m.
Appellant again told her superiors that she was not going to change (i.e., perform
certain duties as assigned). Dr. Farrall presented Appellant with a final written
warning, dated September 10, 2014. The final written warning provided, in part,
that:
[a]n urgency to perform employee[’]s 3 month probationary evaluation has come a week earlier than scheduled. Because job duties have not been performed to employer[’]s expectations employee is being placed on a new probationary period, starting September 17, 2014 and ending on December 17, 2014.
5 Sales have not reached expected growth. Employee has not familiarized herself with product information, including whole sale cost of product that has in turn lowered our profit margin drastically. There has been no willingness to perform general office duties. Or willingness to interact with staff on a consistent basis . . .5
The final written warning specified that general office duties included answering
the telephone.6 The document further provided that “[t]he employee will perform
the duties of an optician and general office staff” and that “if performance has not
improved there will be consequences which could include . . . possible
termination.”7
Appellant refused to sign the final written warning and told Dr. Farrall that
she was leaving for a meeting. Although Appellant only worked an hour and
fifteen minutes that day and was not entitled to take a break, Appellant left the
meeting at 1:45 p.m. and returned to work late at 2:45 p.m. Thereafter, Dr. Farrall
terminated Appellant for refusing to perform certain tasks and for insubordination
during Appellant’s 90-day probationary period.
5 R. at 99. 6 Id. 7 R. at 99 – 100.
6 Procedural History
Appellant filed a claim for unemployment insurance benefits on September
14, 2014. 8 The following day (September 15, 2014), Appellant completed the
Delaware Department of Labor’s (the “DOL”) “Claimant Fact-Finding Issue:
Discharge” form. 9 Appellant reported that she was terminated from her position
with the Employer because she “wasn’t performing job duties.”
On September 23, 2014, Ms. Brittingham faxed a “Separation Notice” and
“Employer Fact-Finding Statement: Discharge” form to the DOL on behalf of the
Employer. 10 On the Separation Notice, Ms. Brittingham indicated that Appellant
had been “Fired/Discharged.” On the Employer’s Fact-Finding Statement form,
Ms. Brittingham put an “X” in the box adjacent to “Misconduct – including but not
limited to attendance, insubordination, or violation of company
policies/procedures.” In addition, Ms. Brittingham submitted a three-page
narrative detailing the events that led to Appellant’s termination, a copy of Dr.
Farrell’s notes, “copies of invoices/notes that were not completed to company
standards, employee warning on 9/3/14, employee write up on 09/10/2014,
employee contract, [and Appellant’s] fax[ed] sheet with hours.”11
8 R. at 38. 9 R. at 5 – 6. 10 R. at 7 & 38. 11 R. at 8 – 10.
7 On October 3, 2014, the Claims Deputy issued a Notice of Determination
that Appellant was disqualified from receiving unemployment benefits under 19
Del. C. § 3314(2). 12 The Claims Deputy found that Appellant had been discharged
for insubordination after the Employer met with Appellant twice because “she was
not doing her duties as required” and that Appellant “stated she did not intend to
change.” 13 The Claims Deputy concluded that the Employer met its burden of
proving that Appellant had been discharged for just cause.14
On October 10, 2014, Appellant appealed the Claims Deputy’s
determination.15 Appellant wrote that she “disagree[d] with the determination,”
but she did not specify the basis for her appeal. 16
A hearing before the Appeals Referee was held on November 7, 2014. The
Appeals Referee heard testimony from Ms. Brittingham, the Employer’s
representative, and Appellant, who was represented by an attorney.
Ms. Brittingham testified that on September 2, 2014, Appellant told “the
receptionist that she would not answer phones,” so Ms. Brittingham spoke to
Appellant about answering telephone calls and told Appellant “she needed to do
12 R. at 40 – 43. 13 R. at 40. 14 R. at 41. 15 R. at 44 – 46. 16 R. at 45.
8 that.”17 Ms. Brittingham further testified that Dr. Farrall and Ms. Brittingham met
with Appellant after the office closed on September 9, 2014 and “presented
[Appellant] with issues [they] had with her performance,” including that she did
not always greet patients, answer the phone, document information in the
Employer’s office program, and assist patients with selecting glasses. 18 Ms.
Brittingham stated that the meeting “didn’t end well” and “Dr. Farrall ended up
asking [Appellant] to leave the office.” 19
Ms. Brittingham testified that the following day (September 10, 2014),
Appellant “refuse[d]” to answer the telephone, fax information to the optical lab,
and enter information into the Employer’s system. 20 Ms. Brittingham further
testified that Dr. Farrall and Ms. Brittingham met with Appellant from 12:45 or
1:00 p.m. until 1:45 p.m. 21 According to Ms. Brittingham, Appellant said that “she
was unwilling to [answer the telephone],” that “she did not feel like she needed to
make any changes,” that she “was unwilling to multitask,” and that she “felt she
was doing fine and she wouldn’t make any changes.” 22 Ms. Brittingham testified
17 R. at 74 & 78. 18 R. at 56 & 58. 19 R. at 56. 20 R. at 79. 21 R. at 56 & 68. 22 R. at 60 – 61, 63 – 64.
9 that Dr. Farrall terminated Appellant from her position that same day (September
10, 2014) because Appellant was unwilling to change. 23
Appellant testified that, in August 2014, she “brought to [Dr. Farrall’s]
attention that [she] was having trouble working there” after an incident involving
her minor son. 24 Appellant was unable to “recall” occasions when Ms.
Brittingham and another employee had to assist patients at the frame board while
Appellant sat at her desk.25 However, Appellant acknowledged that while
Appellant “was putting an order in the computer,” Dr. Farrall “approached [a]
patient [at the frame board] before [Appellant].” 26 Appellant also testified that she
told Dr. Farrall and Ms. Brittingham she “would not [answer the telephone] if [she]
was with a customer or a patient.” 27
On November 20, 2014, the Appeals Referee issued a written decision and
reversed the Claims Deputy’s determination.28 The Appeals Referee found that
although Appellant “was asked to make several changes regarding her work
habits,” the Employer “did not provide any proof” in support of its contention that
23 R. at 55. 24 R. at 84. 25 R. at 86 – 87. 26 R. at 85 – 86. 27 R. at 82. 28 R. at 91 – 95.
10 Appellant refused to make changes and, as such, there was “insufficient evidence
to reach the conclusion that [Appellant] acted willfully or wantonly.” 29
On December 3, 2014, the Employer appealed the Appeals Referee’s
decision.30
On January 14, 2015, the Board held a hearing.31 Dr. Farrall, Ms.
Brittingham, and Denise Reed (the Employer’s “front desk and lab tech”) testified
on the Employer’s behalf. Appellant, who was again represented by an attorney,
also testified at the hearing.
Dr. Farrall testified that she “had some issues with [Appellant’s]
performance” during the 90-day “trial period” outlined in Appellant’s employment
contract.32 Dr. Farrall maintained that Appellant refused the “simple order” to
“answer the phones.” 33 Dr. Farrall testified that she “witnessed [Appellant]
refusing to answer the phone,” however she was unable to recall the exact date. 34
Dr. Farrall testified that she warned Appellant about her refusal to perform
certain duties prior to her discharge.35 According to Dr. Farrall, Ms. Brittingham
29 R. at 92 – 93. 30 R. at 104 – 05. 31 R. at 107. 32 R. at 111. 33 R. at 127. 34 R. at 128. 35 R. at 114.
11 gave Appellant a verbal warning on September 3, 2014, Ms. Brittingham “wrote
up” the verbal warning, Dr. Farrall and Ms. Brittingham “tried to talk to”
Appellant on September 9, 2014, Appellant “got very aggressive and threatened
[Dr. Farrall]” when Dr. Farrall “tried to” warn Appellant that she would be
terminated if she did not change, and Dr. Farrall told Appellant to “get out.”36
Dr. Farrall further testified that Appellant received a final written warning
the next day (September 10, 2014).37 Dr. Farrall stated that Appellant came into
work at 12:18 p.m. and met with Dr. Farrall after Dr. Farrall “finished patients.”38
Dr. Farrall testified that Appellant refused to sign the final written warning that Dr.
Farrall gave her during the meeting. 39 At 1:45 p.m., someone came to Dr. Farrall’s
office and “said they had a meeting with [Appellant] and said that they were
representing her.” 40 Appellant “told [Dr. Farrall] I have a meeting I’m leaving”
even though Appellant “wasn’t entitled to a break” (because Appellant “worked an
hour and a quarter that day”). 41
36 R. at 115 & 116. 37 R. at 117 & 118. 38 R. at 119. 39 R. at 117. 40 R. at 119. 41 R. at 118 & 120.
12 Dr. Farrall stated that Appellant was terminated “after she . . . returned late”
from the “break which she was not entitled to.”42 Dr. Farrall terminated Appellant
for “willfully not wanting to change her performance and insubordination.”43
According to Dr. Farrall, Appellant was insubordinate to her (Dr. Farrall) because
Appellant “open endedly threatened” her and Appellant “said that she would not
[do several things in her job description].” 44 Dr. Farrall testified that Appellant
“said she wasn’t going to answer the phones, she wasn’t going to multi-task and
input the information from the computer and talk to the patients at the same
time.” 45 Dr. Farrall also testified that she warned Appellant before Appellant was
terminated and Appellant “said I would not, if I were you I would not fire me. Are
you firing me, because I wouldn’t do that. And [Dr. Farrall] said to her, what are
you talking about? Why are you saying that? And [Appellant] said, I’m just
telling you I wouldn’t do it.”46
Dr. Farrall noted that the employment contract that Appellant signed
provided that “dismissal may occur at any time during the [probational 90-day]
period” and that the “employee may be terminated for several reasons,” including
42 R. at 118. 43 R. at 111 & 113 44 R. at 113. 45 R. at 127. 46 R. at 114.
13 “insubordination” and “willful misconduct.” 47 Dr. Farrall testified that Appellant
was terminated within the 90-day probation period.48
Ms. Brittingham testified that Appellant “was hired as an office member to
assist patients with frame selections.” 49 The Employer has “a small staff” that
consists of a receptionist, a technician, and an optician who “all work out on the
same floor.”50 Appellant’s duties included “answering phone calls, greeting
patients, checking in patients, [and] pulling authorizations.”51 Ms. Brittingham
confirmed that Appellant was aware of her duties when she accepted the position
because Ms. Brittingham and Appellant “talked about [Appellant’s duties and the
Employer’s expectations of her] at the sit down before she was hired.” 52 Ms.
Brittingham stated that Appellant was familiar with all of the duties except
“submitting insurance claims,” which Ms. Brittingham “would go over . . . with
her.”53 Ms. Brittingham gave Appellant the employment contract, “told her she
47 R. at 112. 48 Id. 49 R. at 133. 50 Id. 51 Id. 52 R. at 133 & 135. 53 R. at 134.
14 could take it home and review it,” and Appellant “handed back the contract” on her
first day. 54
Ms. Brittingham also testified about the circumstances that led to
Appellant’s termination. Ms. Brittingham stated that the Employer was not
initially concerned about Appellant answering the telephones because Appellant
had to learn the computer system and that the Employer expected Appellant to
“start answering phones” during the last week of July 2014.55 Appellant did not
answer the Employer’s telephone and “the other staff members” went to Ms.
Brittingham and informed her that Appellant was “really not helping out as much
as [they] needed her to[].” 56 Both Ms. Brittingham and Dr. Farrall “addressed”
Appellant. 57 Ms. Brittingham testified that Appellant did not start to answer the
telephone.58 Ms. Brittingham represented that on September 2, 2014, the
“receptionist was on the phone and the phones were ringing. She asked
[Appellant] if she would answer the phone and she blatantly said no.”59 Appellant
“was not with a patient.”60
54 R. at 135. 55 R. at 134. 56 Id. 57 Id. 58 Id. 59 R. at 136 & 137. 60 R. at 137.
15 Ms. Brittingham testified that on September 9, 2014, Appellant “would not
get up and help a patient at a frame board,” which was one of Appellant’s duties,
so “Dr. Farrall had to help” the patient.61 Ms. Brittingham further testified that she
and Dr. Farrall met with Appellant that evening (September 9, 2014) about
Appellant “answering phones, working with patients at [the] frame board, helping
out the office staff,” Appellant “told” them that “she didn’t feel like she needed to
make changes” and that “she felt she was doing her job,” Dr. Farrall and Ms.
Brittingham “said to her but we are your bosses and we’re asking you to do simple
tasks in the office,” and Appellant “refused” and said “she wasn’t going to.” 62 Ms.
Brittingham also testified that she asked Appellant “if you’re not going to do the
things that we’re asking you to do, then why do you think you can keep a position
here,” Appellant asked if she was being fired and said “I don’t think you want to
do that,” Ms. Brittingham said “[w]e’re just asking you to answer phones, to help
with patients at the frame boards,” and Appellant “said that she wasn’t going to
make the changes.” 63
Ms. Brittingham testified that when Appellant did not come into work the
next morning (September 10, 2014), she sent Appellant a text message and asked if
Appellant had quit. Appellant “said no” and called Ms. Brittingham at 10:20 a.m. 61 R. at 131 & 136. 62 R. at 130 – 31. 63 R. at 131.
16 to say that she was coming in to work. 64 According to Ms. Brittingham, Appellant
came to work two hours later. 65 Ms. Brittingham told Appellant that she and Dr.
Farrall “needed to sit down and have a meeting” and to “perform [her] duties” until
Dr. Farrall “was done with patients.”66
Ms. Brittingham further testified that during the September 10, 2014
meeting, she and Dr. Farrall “presented [Appellant] with a write up more or less
telling her that because you’re not willing to do these certain things were going to
have to cut your pay” because “we’re going to have to give raises to the other staff
so they can complete the tasks or we’re going to have to hire somebody else.67
Appellant “refused again in front [of] another staff member that she wasn’t going
to make the changes” and “refused” to sign the write up. 68 Appellant “said she was
going to make a copy and she was going to present it to her lawyer,” she left, and
she returned to work late “at quarter to 3:00.” 69 Ms. Brittingham testified that she,
Dr. Farrall, Ms. Reed, and Appellant were present when Dr. Farrall terminated
Appellant “for insubordination, for refusing to do simple tasks in the office.”70
64 R. at 131 – 32. 65 R. at 132. 66 Id. 67 Id. 68 Id. 69 Id. 70 R. at 133.
17 Ms. Reed testified that Appellant “didn’t complete all her job duties” and
“refused to do some things with her job duties.”71 Ms. Reed “felt that [Appellant]
wasn’t able to do mostly [all] of her job duties,” so she spoke with her supervisor
(Ms. Brittingham) about that.72 She testified that Appellant “[r]efused to answer
the phones . . . because she felt that that was not part of her job.” 73 Ms. Reed
claimed that Appellant “would go to the back where we have all the glasses, she
would hide back there for long amounts of time . . . not to make anything and it
was awkward.”74 Ms. Reed confirmed that she was present when Appellant was
terminated.75
Appellant acknowledged that she met with Dr. Farrall and Ms. Brittingham
on September 9, 2014, they “did not feel that [she] was performing [her] job,” and
she “disagreed” with them. 76 Appellant also acknowledged that she refused to sign
Ms. Brittingham’s “write up” at the September 10, 2014 meeting because she
“didn’t agree with [her] pay cut for what [she] was doing.” 77 Appellant testified
71 R. at 138. 72 Id. 73 R. at 139. 74 R. at 140. 75 R. at 138. 76 R. at 141 – 42; 146. 77 R. at 143.
18 that she “never refused to answer the phone.”78 She explained that she “told them
that the only time is if [she] was working with a patient selling glasses” and that
“the time that they asked [her] to answer the phone [she] was actually in the middle
of an eyeglass repair.” 79 Appellant testified that she “never refused to answer
anything if [she was] not doing something” and that she would answer the
telephone “if she was not busy.” 80
On February 20, 2015, the Board issued a written decision that reversed the
Appeals Referee’s decision. 81 The Board found that the testimony from the
Employer’s representative (Dr. Farrall) and two witnesses (Ms. Brittingham and
Ms. Reed) “regarding [Appellant’s] insubordination to be credible,” that Appellant
“willfully refused to complete reasonable duties assigned to her,” and that the
“Employer has demonstrated sufficient just cause to discharge the [Appellant] for
insubordination.” 82 The Board concluded that Appellant was disqualified from
receiving unemployment benefits pursuant to 19 Del. C. § 3314(2).
Appellant timely appealed the Board’s decision on March 2, 2015, asserting
that the witnesses gave “false information” and that “Sandra Cross to be a
78 R. at 141. 79 Id. 80 R. at 141 & 143. 81 R. at 148 – 54. 82 R. at 150.
19 witness.”83 Appellant attached documents to her Opening Brief and Reply Brief
that were not submitted as part of the record below. 84 Because the Court’s review
is limited to the record that was before the Board, the Court cannot consider
evidence that was not included as part of the record below. 85
Parties’ Contentions
On appeal, Appellant disputes the Board’s finding that she was
insubordinate. Appellant maintains that all of her “work related problems” began
in August 2014 after she alleged an incident had occurred involving her minor
child and another employee’s children and she felt the Employer “was trying to
finds [sic] ways to get [her] to quit or fire [her].” 86 Appellant asserts that she did
not receive any complaints or written warnings concerning her work prior to her
discharge.
The Employer contends that the Board’s decision is supported by substantial
evidence and is free from legal error. The Employer asserts that the record shows
83 R. at 158. 84 Appellant submitted seven documents on appeal to the Court that she did not submit before the Appeals Referee or the Board: (1) Summary of Emergency Department Visit, dated August 11, 2014, (2) “Usage Details” for two cell phones, (3) Appellant’s résumé, (4) a list of counselors, dated August 18, 2014, (5) an undated “Statement of Sandra L. Cross,” which was sworn before a notary on June 29 (the year is unknown), (6) August and September 2014 calendars with handwritten notes, and (7) a “Quick Reference Guide” from Santinelli International, dated August 20, 2013. 85 Scott v. Unemployment Ins. Appeal Bd., 1993 WL 390365, at *2 (Del. Super. Sept. 22, 1993) (citing Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761, 763 (Del. 1976)). 86 Appellant’s Opening Br. at 2.
20 that Appellant was discharged for just cause because she “displayed a flagrant
disregard for her job duties and her supervisor.” 87
In a letter to the Court, the Board informed the Court that it does not take a
position on the merit of its decision. The Board maintains that the matter was
decided on the merits, Appellant’s contentions concern the merit of its decision,
and the Board “has no cognizable interest in seeking to have its rulings
sustained.”88
Standard of Review
On appeal from a Board decision, the Court’s review is limited to
determining whether the Board’s factual findings are supported by substantial
evidence in the record and the decision is free from legal error. 89 Substantial
evidence is “relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.” 90 The Court does not weigh evidence, determine questions
of credibility, or make findings of fact. 91 Questions of law are reviewed de novo.92
87 Appellee’s Answering Br. at 8 & 9. 88 Ltr. to the Court from Paige J. Schmittinger, Esquire, Deputy Attorney General at ¶ 2 (internal quotation marks omitted) (quoting Wilmington Trust Co. v. Barron, 470 A.2d 257, 261 (Del. 1983)). 89 19 Del. C. § 3323(a) (“In any judicial proceeding under [§ 3323], the findings of the Unemployment Insurance Appeal Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to questions of law”). See also Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309 – 10 (Del. 1975). 90 Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1221 (Del. 2015). 91 Anchor Motor Freight, Inc. v. Unemployment Ins. Appeal Bd., 325 A.2d 374, 375 (Del. Super. 1975). 92 State v. Reynolds, 669 A.2d 90, 92 (Del. 1995). See also Potter v. Del. Dep’t of Corr., 2013 WL 6035723, at *2 (Del. Nov. 13, 2013).
21 Absent an abuse of discretion, a Board decision that is without legal error and is
supported by substantial evidence will be affirmed. 93
Discussion
Under 19 Del. C. § 3314(2), an employee is disqualified from receiving
unemployment benefits if she is discharged from her work for just cause in
connection with her work.94 The employer has the burden of proving, by a
preponderance of the evidence, that the employee was discharged for just cause. 95
Just cause “is defined as a wilful or wanton act or pattern of conduct in
violation of the employer’s interest, the employee’s duties, or the employee’s
expected standard of conduct.” 96 Willful conduct “implies actual specific[] or evil
intent” whereas wanton conduct “is that which is heedless, malicious, or reckless,
but is not done with actual intent to cause harm.” 97 Just cause is not “mere
inefficiency, unsatisfactory conduct, or failure of performance as a result of
inability or incapacity, inadvertence in isolated instances or good faith errors of
93 Filanowski v. Port Contractors, Inc., 2007 WL 2229019, at *1 (Del. Aug. 2, 2007). 94 19 Del. C. § 3314(2). See also Murphy & Landon, P.A. v. Pernic, 121 A.3d at 1222; Little v. True Pack, Ltd., 2014 WL 5025354, at *2 (Del. Super. Sept. 24, 2014). 95 Murphy & Landon, P.A. v. Pernic, 121 A.3d at 1222. 96 Avon Prods., Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986). See also Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1267 (Del. 1981); Tuttle v. Mellon Bank of Del., 659 A.2d 786, 789 (Del. Super. 1995). 97 Roshon v. Appoquinimink Sch. Dist., 2010 WL 3855179, at *2 (Del. Oct. 4, 2010) (internal quotation marks omitted) (quoting Tuttle v. Mellon Bank of Del., 659 A.2d at 789)).
22 judgment.” 98 If the record contains substantial evidence from which the Board
“‘could infer that an employee’s substandard performance [wa]s the result of a
willful act in violation of the employer’s interests rather than conduct which . . .
appears to be merely inadvertent or inefficient, a denial of [unemployment
insurance] benefits is most appropriate.’” 99
In the instant case, the Board determined that Appellant was disqualified
from receiving unemployment benefits under 19 Del. C. § 3314(2). The Board
found that the Employer met its burden of proving that Appellant had been
discharged for just cause based on insubordination for willfully refusing to
complete reasonable duties that were assigned to her.
Just cause for discharge may be found if an employee is insubordinate.100
Insubordination includes an employee’s refusal to perform a reasonable task that is
assigned by the employer. 101 This is so because an employer has just cause to
discharge an employee for insubordination under Delaware law if the employee
98 Starkey v. Unemployment Ins. Appeal Bd., 340 A.2d 165, 166 – 67 (Del. Super. 1975)). See also Lensfest Grp. v. Jeffers, 2000 WL 33114323, at *2 (Del. Super. Aug. 14, 2000). 99 Majaya v. Sojourners’ Place, 2003 WL 21350542, at *5 (Del. Super. June 6, 2003) (quoting Starkey v. Unemployment Ins. Appeal Bd., 340 A.2d at 167. 100 Krouse v. Cape Henlopen Sch. Dist., 1997 WL 817846, at *3 (Del. Super. Oct. 28, 2007). 101 Henry v. Mountaire Farms of Del., Inc., 2015 WL 4475812, at *1 (Del. Super. July 22, 2015); Bugaj v. L & D Suzuki, Inc., 2014 WL 2884477, at *2 (Del. Super. June 19, 2014) (holding an employee’s refusal to follow his general manager’s reasonable instruction to change a fuel pump constituted just cause for the employee’s discharge).
23 willfully refuses to follow her employer’s reasonable instructions or directions.102
Moreover, a “single instance of insubordination may support just cause for
termination.”103
Here, the record shows that Appellant was discharged for her repeated
refusal to perform certain duties that the Employer assigned to her when her
employment commenced (i.e., to answer the Employer’s telephone and to assist
patients with frame selections at the frame board).
On September 2, 2014, Appellant refused to answer the Employer’s ringing
telephone, even though answering the telephone was among Appellant’s assigned
duties and the Employer’s Office Manager (Ms. Brittingham) had instructed her to
begin answering the telephone at the end of July 2014. The Board noted
Appellant’s testimony and version of events (that she never refused to answer the
telephone and that she thought she might have been repairing glasses at the time).
However, the Board credited testimony from Dr. Farrall and Ms. Brittingham that
Appellant refused to answer the telephone on that date. The Board also credited
Ms. Reed’s testimony that Appellant was not doing anything when Appellant
102 Little v. True Pack, Ltd., 2014 WL 5025354, at *2 (Discharge of employment due to insubordination constitutes just cause if the employee wilfully refuses to follow the reasonable instruction of the employer”); Scott v. Unemployment Ins. Appeal Bd., 1993 WL 390365, at n. 3 (defining insubordination as “[r]efusal to obey some order which a superior officer is entitled to give and have obeyed”). 103 Bugaj v. L & D Suzuki, Inc., 2014 WL 2884477 at *2.
24 refused to answer the telephone, which corroborated Ms. Brittingham’s testimony
that Appellant was not assisting a patient at the time.
In addition, the Board was aware of and considered Appellant’s testimony
before the Appeals Referee that she was unable to recall occasions when Ms.
Brittingham and another employee had to assist patients at the frame board while
Appellant sat at her desk. However, the Board credited Ms. Brittingham’s
testimony that Appellant “would not get up” to assist a patient at the frame board
on September 9, 2014.
Because Appellant was a member of a “small staff” and she worked on the
same floor as the other two employees, Appellant’s duties to answer the telephone
and assist patients at the frame board are not unreasonable. Moreover, the record
shows that Appellant’s refusal to perform these reasonable duties was not merely
inadvertent or attributable to any inefficiency on Appellant’s part. Indeed,
Appellant was aware of these duties when she commenced her employment.
Appellant discussed her duties, including her duty to answer the Employer’s
telephone and assist the Employer’s patients at the frame board, with the
Employer’s Office Manager (Ms. Brittingham) when Appellant was hired.
Additionally, the record shows that Appellant told her superiors twice that
she was not going to change, despite their warnings.
25 Appellant also testified as to her refusal to perform these duties. She
acknowledged that she refused to answer the telephone, despite the Employer’s
request, because she was in the middle of repairing eyeglasses. So too, Appellant
acknowledged that Dr. Farrall had to assist a patient at the frame board because
Appellant was entering an order in the computer. However, the Board credited
Ms. Reed’s testimony that Appellant would hide in the back “for long amounts of
time.” Thus, the record supports the Board’s finding that Appellant willfully
refused to perform certain duties that had been assigned to her.
Furthermore, Appellant had notice that insubordination could result in her
termination. Appellant signed the “Contract of Employment Non-Professional
Employee,” which provides that insubordination and/or willful misconduct could
lead to her termination and that dismissal could occur at any time during her 90-
day probationary period.
In addition, the Employer gave Appellant verbal and written warnings that
her refusal to perform certain reasonable, assigned tasks could result in her
termination. The Board credited Dr. Farrall’s testimony that during the September
9, 2014 meeting, Appellant verbally refused to make any changes to her job
performance and then became aggressive and directed verbal threats to Dr. Farrall
when Dr. Farrall verbally warned Appellant that her refusal to perform certain
assigned duties could result in her termination.
26 The Board also credited Dr. Farrall’s testimony that during the September
10, 2014 meeting Appellant once again verbally refused to change, refused to sign
the written warning concerning her “[un]willingness to perform general office
duties,” told Dr. Farrall she was leaving for a meeting, left the meeting to take a
break that she was not entitled to take, and returned from that break late.
Although Appellant contends that she was not insubordinate, despite the
Employer’s repeated warnings to answer the telephone and assist patients at the
frame board and Appellant’s continued refusal to perform these duties, it is within
the purview of the Board to assess the credibility of witnesses, determine the
weight to be accorded to their testimony, and draw all reasonable inferences
therefrom. 104
The record supports the Board’s finding that Appellant was discharged for
insubordination for willfully refusing to perform reasonable duties that the
Employer had assigned. 105 As such, the Board’s decision that Appellant is
disqualified from receiving unemployment benefits under 19 Del. C. § 3314(2) is
supported by substantial evidence and is free from legal error.
104 Mietus v. Unemployment Ins. Appeal Bd., 1995 WL 562165, at *2 (Del. Super. Aug. 24, 1995). 105 Appellant contends that her “work related problems” began after she alleged an incident had occurred involving her minor child and another employee’s children. Appellant’s attorney questioned Dr. Farrall about the alleged incident during her testimony before the Board, the Board’s Chairman asked Appellant’s attorney whether “any type of police report” had been filed, and Appellant did not present any verification of the incident to the Board. Appellant’s attorney stated that he “did not feel that it was appropriate that [he] go to the police now,” however he maintained that Appellant “did complain to the police” and that “as far as [he knew, the Attorney General’s Office was] still reviewing it.” Thereafter, the Board declined to hear further testimony about the alleged, unverified incident. The Board’s Chairman stated, “The board is not going to listen to that today.” R. at 123 – 24. 27 Conclusion
In determining that Appellant is disqualified from receiving unemployment
benefits, the Board reviewed the testimonial and documentary evidence presented
to the Appeals Referee, the Appeals Referee’s decision, the Employer’s notice of
appeal, and the testimony before the Board which shows that Appellant refused to
answer the Employer’s telephone and to assist patients at the frame board during
her 90-day probationary period. Appellant was aware of such duties at the time
she commenced employment and acknowledged occasions when she did not
perform those duties. Despite the Employer’s verbal and written warnings about
her refusal to perform those duties, Appellant refused to change. Thus, there is
substantial evidence in the record to support the Board’s finding that Appellant
was insubordinate for willfully refusing to complete reasonable duties assigned to
her.
Moreover, Appellant signed an employment contract that notified her that
insubordination was grounds for termination and that she could be dismissed at any
time during the probationary period. Additionally, prior to Appellant’s
termination, the Employer gave verbal and written warnings that her refusal to
complete reasonable duties assigned to her could result in her termination.
Consequently, Appellant’s contention that she did not receive any complaints or
written warnings concerning her work prior to her discharge is without merit.
28 ACCORDINGLY, the Board’s decision that Appellant is disqualified from
receiving unemployment benefits under 19 Del. C. § 3314(2) is hereby
AFFIRMED.
IT IS SO ORDERED.
Diane Clarke Streett Judge
Original to Prothonotary
cc: Cathryn Byrd, Pro Se Appellant (via Regular Mail) Scott E. Chambers, Esquire (via File & ServeXpress) Shae Chasanov, Esquire (via File & ServeXpress) Paige Schmittinger, Esquire, Deputy Attorney General (via File & ServeXpress)