Finestrauss v. Phillips, et al.
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IN THE SUPERIOR COURT OF DELAWARE IN AND FOR NEW CASTLE COUNTY PHIL IP M . FINE STR AUS S, P.A ., Employer Below-Appellant v. LINDA L. PHILLIPS, Employee Below-Appellee )))) ) ) ) ) ) C.A. 01A-05-002-PLA )) and THE UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellee. Submitted: January 8, 2002 Decided: March 8, 2002 UPON APPEAL FROM A DECISION OF THE UNEMPLOYMEN T INSURANCE APPEAL BOARD AFFIRMED. ORDER This 8th day of March, 2002, upon review of the papers filed by the parties in th is case and the recor d of the p roceedin gs below , it appears that: (1) Appellee and claimant below, Linda Phillips, worked for Appellant and employer below, Phillip Finestrauss, as a paralegal from February 1999 until December 15, 2000, when Phillips was terminated by Finestrauss. Phillips filed a claim for unemployment compensation on December 17, 2000, with the Delaware Department of Labor, Division of Unemployment Insurance. On Decem ber 29, 2 000, a C laims D eputy determined that Phillips was eligible for benefits. (2) On January 5, 2001, Finestrauss appealed the decision of the Claims Depu ty. A hea ring w as held o n Janua ry 22, 20 01, by an Appe als Referee. On January 11, 2001, the Appeals Referee issued her decis ion affirming the findings of the Claims D eputy. (3) At the Appeals Referee Hearing, Finestrauss argued that Phillips engage d in exten sive pers onal ph one calls, a ttended to personal tasks on firm time , failed to m eet deadlin es, and fa lsified her time shee ts to show that she worked more hours than she actually worked. In support of that argument, Finestrauss testified that he had provided Phillips with a verbal warning on September 26, 2000,1 and a follow-up memo on October 4, 2000, addressing the issues of concern. Finestrauss also presented the testimony of anoth er emplo yee, Stev en Bellak , who te stified that he observed Phillips attend to personal letters and tasks and engage in the alleged ex tensive p ersonal p hone ca lls. In Appellant s Reply Brief, Finestrauss attempts to provide details of this verbal warning, while at the same time acknowledging that the exact details of the verbal warning are not in the record below. Appellant s Reply at 5. 1 (4) The Appeals Referee determined that Phillips had been discharged from h er wor k witho ut just cause. In support of her decision, the Appeals Referee stated: Given the fact tha t the employer and his wife had been friends with the claimant, Finestrauss reluctance to speak to the claimant in terms o f warn ing and terminati on was understandable. Still, in order for a w illful act of m iscondu ct to be found , a prior w arning is ordinar ily required; unless the conduct is of such a nature that no such w arning is necessary, such as with blatant insubordination. Therefore, while the claimant was on notice that she was to put in forty hours of actual work time each week, a nd to attem pt to curb her personal phone calls, she w as never given an unequ ivocal w arning that her job was in jeopardy. As to the time sheets, the claimant was under no obligation to submit them at all. The minor discrepancies found on them do not indicate a willful or wanton disregard for the employer s interest. For these reasons, the employer has failed to meet its burden of proving just cause, and the claimant is qualified for benefits. 2 (5) Finestrauss thereupon ap pealed th e decision of the A ppeals Referee to the Unemployment Insurance Appeal Board. On March 7, 2001, the Board held a hearing to consider the merits of Finestrauss appeal. At the Board hearing, Finestrauss presented additional testimony by Anthony Carrell, Phillips d aughter s teacher. F inestraus s alleged th at Phillips indicated on her time sheets that she was at work when, in fact, she was really at a parent-teacher conference. 2 Referee s Decision at 5. (6) On March 21, 20013, the Board issued its written decision affirming the Appeal Referee s determination. The Board found that Phillips was discharged without just cause and therefore eligible for benefits. Regarding this additional testimony, the Board noted: The Board writes a separate opinion only to comment on the testimony of Mr . Carrel. H e stated tha t contrary to the claimant s prior testimony, he met with her in the afternoon and not in the morning. The claimant admitted that she may have been mistaken about the time of the meeting. The Board does not find that this fact creates a willful or wanton act or sufficiently destroys the claimant[ s] credibility.4 (7) Finestrauss appealed the decisio n of the B oard to th is Cour t, pursuant to Del. C. Ann. tit. 19 § 3323 (1995), on the ground that the Board committed legal error when it concluded that Finestrau ss acted without just cause in terminating Phillips. Specifically, Finestrauss alleges that the record of the Referee Hearing is replete with testimonial evidence from Steven Ballak and Karen DeCrease [another employee] regarding outrage ously long pe rsonal p hone ca lls. 5 In additio n, Fines trauss cites case law wherein falsifica tion of tim e cards b y an emp loyee has been de emed to amount to just cause to deny unem ployment benefits. 6 3 A revised decision was issued by the Board on March 30, 2001, to correct an error. 4 Appeal Board Decision at 2. 5 Appellant s Opening Brief at 8. 6 Id. at 9. (8) Phillips responds that the Board s decision is supported by substantial evidence in the record and that the Board was correc t in finding that Phillips was discharged without just cause in connection with her work. Phillips argues that Finestrauss October 4, 2000 letter was a summ arization of topics discussed at an earlier meeting, rather than the unequivocal warnin g that is req uired. 7 In addition, Phillips states that [t]he purpose of the time sheets w as not fo r payme nt since sh e was n ot paid hourly, but rather to furnish the Employer [Finestrauss] with a record that she wa s work ing the fo rty hour s per w eek that h e had req uested. 8 (9) The Delaware Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. O n appea l from a d ecision o f the Bo ard, the C ourt is limited to determining wh ether sub stantial evid ence in th e record suppo rts the Board s findings, and that such findings are free from legal error.9 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;10 it is more th an a scintilla 7 Appellee s Answering Brief at 3. 8 Id. at 4. See Employment Ins. Appeals Bd. Of the Dep t of Labor v. Duncan, 337 A.2d 308, 309 (Del. 1975); Longobardi v. Unemployment Ins. Appeals Bd., 287 A.2d 690, 692 (Del. Super. 1971), aff d, 293 A.2d 295 (Del. 1972). 9 Oceanport Indus. V. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del. Super. 1986), app. dism., 515 A.2d 397 (Del. 1986). 10 but less than a preponderance of evidence.11 The C ourt in its appellate review does no t, howe ver, weigh the evidence, determine questions of credibility, or make its own factual findings. 12 11 DiFilippo v. Beck, 567 F. Supp. 110 (D. Del. 1983). 12 Johnson v. Chrysler, 213 A.2d 64, 66 (Del. 1965). The Court m erely deter mines if th e eviden ce is legally adequate to support the agency s factual findings. 13 Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the court might have, in the first instance, reached an oppos ite conclusion.14 Thus, this Court must determine if there is sufficient evidence in the record to support the Board s decision that Phillips was not discharged for just cause and is entitled, the refore, to unemp loymen t benefits under Del. C. Ann. tit. 19 § 3315(2). (10) Title 19 Del. C. § 3315(2) provides in relevant part that an individual is disqualified from receiving unemployment benefits where the individual has been discharged for just cause in connection with his or her work. Just caus e is defin ed as a w illful or wanton act in violation of either the emp loyer s inte rest, or the employ ee s duties , or of the employer s expected standard of cond uct. 15 (11) The Board is free to ac cept and reject testim ony, accept the credibility of witn esses and weigh evidenc e as it sees fit. 16 The Board agreed with the Referee s finding s, and fo und tha t the testimony of 13 See DEL. C. ANN. tit. 29 § 10142(d) (1997). See Id.; Petty v. University of Delaware, 450 A.2d 392, 396 (Del. 1982); Levitt v. Bouvier, 287 A.2d 671 (Del. 1972). 14 15 Abex Corp. v. Todd, 235 A.2d 271, 272 (Del. 1967). See Evans v. Tansley, 540 A.2d 1088 (Del. 1988)(ORDER)(citing Coleman v. Dept. of Labor, 288 A.2d 285 (Del. Super. 1972). 16 Employe r s witnesses did not create a willful or w anton ac t or suffic iently destroy the claimant s credibility.17 The Co urt is satisfied that the B oard s decision entitling Phillips to unemployment comp ensation as allowed by the statute is supported by substantial evidence. For all of the foregoing reasons, the decision of the Unemployment Insurance Appeal B oard is hereby AFFIRMED. IT IS SO ORDERED. Peggy L. Ableman, Judge cc: 17 Philip Finestrauss, Esquire Linda Phillips, Claimant UIAB Prothonotary Board Hearing Trans. at 2. Both the Appeals Referee and the Board considered testimony from the Appellant and * ** in de terminin g that A ppellant s hould b e . . . . Specifically, the Appeals referee held: The Board affirmed this decision and further stated: The Appeals Referee and the Board considered the testimony from the Appellant and ***. The Appeals Referee and the Board determined questions of credib ility and m ade factu al finding s in arrivin g at their decision. This Court may not weigh the eviden ce or determine credibility. Therefore, the Cou rt finds th at the issue s raised in this appeal are factual and that there is su bstantial ev idence in the recor d to sup port the Board s decision. Employer argues that the Referee s decision and the Board s decision were not supported by substantial evidence. F urther, em ployer ar gues tha t . . . After reading the transcripts of both hearin gs (?), this Court finds that there is substantial evidence to support the Board s decision. When the Board affirms a referee s decision after taking additional evidence, the Court relies upon the referee s determinations for the findings of fact and conclusions of law.18 Therefore, there is no error when the Board adopts the Referee s findings of fact and conclusions of law. Boughton v. Division of Unemployment Ins. Dept. of Labor, 300 A.2d 25, 26 (Del. Super. 1972). 18
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