Delaware Transit Corp. v. Gross-Todd, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DELAWARE TRANSIT CORPORATION v. BARBARA M . GROSS-TODD and UNEMPLOYMENT INSURANCE APPEAL BOARD ) ) ) ) ) ) ) ) CIVIL ACTION NUMBER 02A-10-006-JOH Submitted: April 28, 2003 Decided: June 27, 2003 MEMORANDUM OPINION Upon A ppeal from a Decisio n of the Un employm ent Insurance App eal Board - AFFIRMED Laura L . G erard, D eputy Attor ne y Wilmington, Delaware, attorney for appellant Barbara 19720. Ge ne r a l, Gross -Todd , Pro Se , 44 W . Saxony HERLIHY, Judge De pa r tme nt of Jus tic e, Drive, New Castle, Delaware, The Delaware Transit Corporation ("DART") appeals the decision of the Unemployment Insurance Appeal Board that its employee bus driver Barbara Gross-Todd her for benefits. w as terminate d withou t just cause, thereby qualifying Gross-Todd explained to the Board that she had refused an assignment bec ause she h ad felt ill and w as unfit to w ork. She h ad told her tell the regional witnesses who testified immediate supervisor. that supervisor DART, G ro s s - T o d d on of her other the n ev e r illness, hand, mentioned but did presented any h ea l t h not concerns, but r a t h er expressed to them that she did no t take the assig nment be cause it wo uld interfere with and had another client's already agreed pick-up to perform. to which The she Board was found already assigned Gross-Todd to be credible and aw arded h er unem ploymen t benef its. On appeal, D ART argues that 1 ) Gross-T odd had a legal duty t o tell the regional manager of a legitimate reason for refusing work before going home, 2) Tod d's testimony, upon the which Board the without just cause. erred and Board 3) by failing to no substantial could conclude resolve evidence that discrepancies in Grossrecord existed on the Gross-Todd was term inated The Cou rt finds all three argum ents to be w ithout merit and af firms th e decisio n below . Facts 2 Claimant Paratransit At the March Barbara Gross-Todd bus driver. The time, 18, terminated she for incident was 2002. in employed The any was during the next three years. dispute under agreement occurrence employed of a as a on occurred last provided May chan ce that inappropriate full-time 24, 2002. agreem ent, dated Gross-Todd behavior DART or would be insubordination Claimant was pregnant and was scheduled to begin maternity leave in June. Upon overtime several completion work from passengers later, another Marie Jones, to client of a her shift dispatc her, pick-up became Gross-Todd's at at Troy 3:00 ready p.m., Gross-Todd Thomas. p.m. in for service 1:30 pick-up superv isor, Thomas Newark. at told assigned A St. requested few Francis her that her minutes Hospital. she had adequate time to perform the 2:00 p.m. pick-up1 before the 3:00 p.m. pickup to which she was already assigned. The parties dispute Gross-Todd's reaction to the new assignment. Gross-Todd testified that she had been suffering, as a r esult of p regn ancy, from intermittent back pain and cramps 1 throughout the day, but that she The exact time of the pick -up app ears to b e dispu ted. DART ch aracterizes it as a 2:00 p.m. pick-up, while Gross-Todd refers to it as a 2:30 p.m. pick-up. The timing of the assignment is not important for the purposes of this review. For convenience s sake, the Court will refer to the assignment as the 2:00 p.m. pick-up. 3 felt well enough by the end of her shift to request overtime. pain returne d, she sa id, while she was aw aiting the 3:00 However, the p.m. assignm ent. According to Gross-Todd, she decided to go home, went to the dispatc her's window, and informed Jones that she could not complete the overtime assignm ents du e to illnes s. Thomas mention 2:00 any p.m. and Jones health concerns. assignment assignme nt. testified, however, Instead, because it they would that testified make her Gross-Todd that late for not refused she did the 3:00 p.m. her Jones allegedly replied that the 2:00 p.m. trip was nearby and would be brief . The rest of the facts are undisputed. Charles Moulds, District of the acting Delaware. C hief Jones, Jones told Gross-Todd to see Paratr ansit thereafter, Supervisor marked for DART's the log N orthern book to record Gross-Todd's departure from work and to note that Gross-Todd had refused to work. Jones also told Moulds that Gross-Todd had refused to work. incident. When G ross-Tod d Gross-Todd met explained with that Mould s, she had he asked her already agreed abou t to the take the 3:00 p.m. pick-up, but then Jones wanted her to take the 2:00 p.m. pick-up. Gross-Todd told Goulds that she was concerned that if she took the 2:00 p.m. assignme nt, she wo uld be late for the 3:00 p.m. pick-up. 4 Gross-Todd testified before because he the had Board been that she harassing did her not and tell she Moulds just of wanted her illness go home. to Moulds then told Gross-Todd that her actions constituted a refusal to work. Gross-Todd asked Moulds if such a refusal which Moulds responded in the affirmative. point, it was approximately 2:30 p.m. was a termina ble offen se, Gross -Todd the n left. to At this Gross-Todd went to the hospital that night an d was put on b ed rest f or the w eeken d. On August 7, 2002, an Appeals actions constituted in subordina tion, cause, and th e r ef o r e th a t unemployment benefits. On that she she w as appeal, decision on Septembe r 11, 2002. Referee found w as that terminated disqualified the Board Gross-Todd's from reversed miscond uct, work the due Board to illness found th at just rece iving the Referee's The B oard accepted as cre dible Gross- Tod d's testimony that sh e was fe eling ill on the d ay in question. since leaving with cannot she be wa s considered willful discharge d without Therefore, or wanton just cause and tha t she is en titled to u nemp loyment b enefits . DART has appealed that decision to this Court. arguments. found First, it argues that the Board erred as a m atter of law when it that qualified DART makes three to Gross- Todd receive w as discharg ed unemployment benefits. 5 withou t just DART cau s e asserts an d that w as Gross- Todd had a duty to inform Moulds, auth ority, of her illness, but did not. she failed to concluding excuse. info rm him, her refusal that M oulds of her supervisor with disciplinary The argument continues that because justifiably work was not Under D ART's policy, employees ill, but, obviously, that policy is premised relied upon justified her by silence a in legitimate are not requ ired to wo rk while upon an employee in forming h is or her su perviso r of an il lness. Next, DART co ntends that the Board erred as a matter of law insofar as it failed to resolve certain conflicts in the evidence. that there without were several resolving them, discrepancies the Bo ard in Gross-Todd's accepted her DART maintains testimony testimon y. and In yet, particular, DART argues that the Board erred insofar as it failed to question her about why she had given two different reasons for having refused the second assignment; was it because she was sick or because it would have made her late for the 3:00 p.m. pick-up? Jones' reaction illness. after Gross-Todd Gross-Todd testified A second such alleged discrepancy was told before her the she wa s leaving Referee that Jones find someo ne else to do the p ick-up s, but that to Jones continued maintains that insist th at she w ork said she due to would she testified before the Board take th e assignments. DART the Board's failure to resolve these discrepancies is grounds 6 for rev ersal. Las tly, DART benefits unemployment DART asserts was contends i n su b o r d inate that by the that not issue refusing the one Board 's supported by case was wh ether assignm ent and of th e the providing a legitimate excuse for her departure. it argues, the Board failed to inform ignored decision the fact to substantial g r a nt evidence. Gross-Todd leav ing wor k was with o ut E ven if she h ad been ill, that Gross-Todd was obligated and Moulds, the supervisor whom DART c laims was the first to have disciplinary power over her, of a justifiable reason for the refusal to work. DART also maintains that insufficient evidence existed to persuade any reasonable mind that Gross-Todd had a just cause to refuse the assignm ent. Standard of Review The duty of this Court on an appeal from the Board is to determine whether the Board's from legal error. 2 decision is supported by substantial evidence and free This Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility and make its own factual findings and conclusions. 3 The Board's decision must be affirmed Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 34 2 (Del. 1993). Delaware Alcoholic Beverage Control Commission v. Newsome, 690 A.2d 906, 910 (Del. 1996). 2 3 7 if it such is supported relevant by evidence as support a conclusion. 5 Court will consider evidence.4 substantial a reasonable mind Substantial evidence might accept as means adequate to In reviewing the record for substantial evidence, the the record in the light mo st favorab le to the party prevailing below.6 Discussion On appeal their testimony to this Court, the credibility of witnesses, the weight of and Board to determine.7 of the Board.8 the factual infe rences dra wn there from are f or the This Co urt does no t substitute its judgment for that Accordingly, this Court must view the record in the light most favorable to the party prevailing below, Gross-Todd. When viewing the record of this case in a light most favorable to Gross-Todd, the essential facts are as follows. Gr oss-Todd accepted th e 3:00 p.m. assignment because, at that time, she felt well enough to do so, but was thereafter assigned another, earlier pick-up. Gross-Todd felt the M.A. Harnett, Inc. v. Coleman, 226 A.2d 910 , 911-12 (Del. 1967 ). Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994). 4 5 General Motors Corp. v. Guy, Del. Super., C.A. No. 90A-JL-5, Gebelein, J. (August 16, 1991) at 5. 6 7 Keeler v. Metal Masters Foodservice Equip. Co., Inc., 712 A.2d 1004, 1006 (Del. 1998). Delaware Alcoholic Beverage Control Com mission v. Alfred I. DuPont Sch. Dist., 385 A.2d 11 23, 1125 (Del. 197 8). 8 8 onset of pain and decided to go home rather than take the assignments and she told Marie Jones, supervisor, Charles work she and second well enough Moulds, obliged. assignme nt. to her se rvice asked Mould Instead perform of the supervisor, Gross-Todd confronted informing pick-ups , as to such. The him before see re gional she left of the longer felt her about her refusal Mould s that she no Gross-Todd disagreed with Moulds over whether or not she had enough time to perform the 2:00 p.m. pick-up without being late for the 3:00 p.m. pick-up. When asked before the Board why she did not tell Moulds of her sickness, Gross-Todd stated: First of all I was upset and irritated w ith the fact I ha d to be in there due to the fact that they had already told Marie Jones that I was sick and secondly that Charlie Moulds and his assistant had been harassing me.9 Moulds informed Gross-Todd that her conduct constituted a terminable offense and she wen t home, only to return several days later w ith doctors' notes evidencing her medical problems. I. DA RT's first argument on appeal is that the Board erred as a matter of law by failing to consider Gross-Todd's duty to speak so as to inform Moulds of her legitimate reason for refusing work. 9 Tr. Bd. Hr g. at 2. 9 DART cites two cases The first is Laime v. Casapulla's Sub Shop.10 for support. had been off There, the claimant from w ork for a f ew days du e to pregna ncy complic ations when her husba nd called h er employer to inform it that she would not be in as expected due to continued illness. The employer essentially told the husband that his wife should look for a new job. with The claimant never spoke her employer again, but rather assumed from what her husband told her that she had been terminated. The relevant part of the opinion states: Further, Employee concedes that she did not attempt to contact Employer about her job. This Court agrees with the Board that, because Employee was not directly told by Employer that she was terminated, she had a duty to speak to Employer and clarify her job situation . "[A]n employee does have an obligation to inform an employer of resolvable problems, and to make a good faith effort to reso lve them b efore simp ly leaving ." In this case, Employee admits that Employer o nly communicated with Emp loyee's husband. Employee made no effort to resolve her problems with Employer and never r e t u r n e d to w ork. The Boa rd's f i n d in g t h a t E m ploye e voluntarily quit her job is supported by substantial evidence and free from leg al error.11 The other case upon which DA RT relies is Carroll v. Food Lion.12 the Cou rt decision. aff irme d the Boa rd's denial of review of the In that case, App eal R efer ee's The relev ant portion o f the Ref eree's reason ing was a s follows: Del. Super., No. 96A -11-006, Cooch , J. (May 20, 1997). Id. at 7(quoting Sande fur v. U nemp loyme nt Ins. A ppeal B d., Del. Super., C.A. No. 92A-01 -002, Goldstein, J. (Aug ust 27, 1993) at 10.). 10 11 12 Del. Super., No. 94A -02-001, Lee, J. (Dec. 28 , 1994). 10 This pattern of conduct was illustrative of the cla imant's employment histo ry with Food Lion. I find the claim ant's testimony that she did n ot know she had to work on August 31, 1993 as lackin g in cred ibility. She testified that a co-worker gave her her schedule and no mention was made of August 31st. The claimant had a duty to speak with management about her schedule or persona lly visit the store to rece ive it. She sho uld not have relied upon a co-work er to conve y that informa tion to her. 13 DART argues that the Bo ard erred in th e present ca se by failing to apply the legal principles used in Laime and Carroll. In Laime it was held that an employer employee has an ob ligation to inform an of resolvable problems and to make a good faith effort to resolve them before leaving. In Carroll, the Refere e noted tha t the claiman t had a duty to sp eak with management about her schedule and that she should not have relied upon a co-worker to convey that information. From this backdrop, DART argues that Gross-Todd had a legal duty to inform Moulds, not Jones, of her illness and to discuss with him options to resolve the situation. Furthermore, it is asserted that G ross-Tod d erred by relying u pon Jone s to have notified Moulds of her illness. the Board ca nnot legally find Accordingly, the argument continues, that Gross- Todd w as terminate d withou t just cause. 13 Id. at 1 - 2. 11 The Court Gross-Todd had disagrees. a duty Distilled to inform to a for Gross-T odd to info rm essence, supervisor in order to leave work due to illness. enough its DART with contends disciplinary that autho rity According to DART, it was not her imm ediate servic e superviso r, Marie Jones, of her medical condition, but rather she had a d uty to go up the hierarchy of the organization to the Chief Paratransit Northern District of Delaware, Charles Moulds. flesh out safe to the individual responsibilities of assume that Jones individual drivers and managin g responsible for more executive-type requires every driver policy is to the for day-to-da y duties. contact the for the While the record does not Jones responsible Supervisor and Moulds, 14 makin g matters, It is appears assignm ents while u nlik ely Supervisor it for Moulds that to is DART the Northern District of Delaware whenever he or she calls in sick for work. DART asks too much of the Bo ard and the Court to im pose such a duty in this case, and fails to recognize the implications across the board that would flow therefrom. While it would n o doubt h ave been advisable for Gross-Todd to have told Moulds of h er medical reasons for le aving work and not to have relied on Jones to inform him of such, DA RT has not presen ted this Cou rt with 14 This fact is likely attributable to Gross-Todd's decision to represent herself in the proceedings. 12 precedent requiring distinguisha ble from claimant who speak with termination such th e case in order at to hand receive because Laime benef its. that case is with a dealt heard of her te rmination se cond-ha nd, but nev er bothered her by inapplicable. action em p l oy e r. the H e re , reg ional There, the G ross-Todd su perviso r Appeals for Referee was Carroll D ART . rejected informed the of is claimant's to her equally testimony that she wasn 't informed th at she wa s to work o n the day at issue, noting that the claimant had a duty to check her own schedule and not to rely on co-workers work to when relay the she information informed her accurately. direct, immediate that she was g oing hom e due to illnes s. supervisor of her medical condition; Here, Gross-Todd she supervisor, was Marie at Jones, In other w ords, she to ld her direct did not rely on a co-worker to relay info rmation on her b ehalf. II. DA RT's next argument on appeal is that the Board erred as a matter of law insofar Particula rly, as it failed to resolve DAR T maintain s that there certain were conflicts two in the discrepancies Tod d's testimony that the Board failed to adequately address. evidence. in Gross- First, Gross- Todd testified that she told Jones that she was going home ill as the reason for refusing the 2:00 p.m . assignment. 13 Gross-T odd also testified, however, that she argue d with M oulds abo ut whethe r she wou ld have ha d time to complete the 2:00 p.m. pick-up without being late to her 3:00 p.m. pick-up. DART argues that the Board failed to question Gross-Todd as to this discrep ancy and therefo re failed to resolv e the co nflict. But the Board did addres s this discrepa ncy, albeit in a less prefer able and of indirect manner. The her illne ss credib le. Board The expressly fact that found Gross-Todd's Gross-Todd discussed testimony with Moulds the plausibility of handling both a 2:00 p.m. and a 3:00 p.m. pick-up is irrelevant, except inso far as it is useful to impeach her testimony illness was to blame for her refusal to take the assignment. Board accepted question -- Gross-Todd's t e s ti m on y testimony that was that she s u p p o rt e d was by ill that But once the at the proper time in p ro f e s s i o n al documentation -- the re w as no need for the B oard to de lve d eepl y into the exact d etails of the con versatio n that too k place in Mo uld's off ice. The second d iscrepancy po inted to by DART involves Jones' reaction to Gross-Todd's refusal of the 2:00 p.m. assignment. Gross-Todd testified before the Appeals Referee that, after she told Jones she was going home ill, Jones said she was going to find someone else to the do the 2:00 p.m. pick-up. In continued to reasoning for contrast, insis t that rejecting Gross-Todd she testified take t he D A RT's first 14 2:00 before p .m. the Board tr ip. B ut discrepa ncy argume nt that Jones the Co urt's is equall y applicable here. Whether driver rather continued is or wholly irrelevant to the Jones to said insist issue that on that Todd term inate d withou t just caus e? she would G ross-Todd was before find a the taking the replacement assignment Board: was Gross- In any event, as noted earlier, issues of witness credibility are to be resolved b y the Board, n ot by this Cou rt. This Court sees nothing in the record which warrants deviating from that princip le. III. DA RT's final argum ent is that the B oard's decisio n was no t based on substantial contrary evidence to claimant Moulds the was a in the The thrust of determination, Board's record . the issue in insu bord inate legitimate by re f using reaso n. the the this argum ent is case whether a ssignme nt Accord ingly, DART was without mainta ins, that, givin g it w as irreleva nt whe ther Gr oss-To dd wa s ill the da y in questio n. This argum ent, first argument on h owe ver, appeal. is just a dif fere nt fo rmulatio n of DA RT's The premise of this s ubstantial ev idence claim is that Gross-Todd h ad a duty to inform M oulds, the regional mana ger, that she was insufficie nt ill and that notice to informing DART. Jones, The her Court direct has supervisor, already provided rejected that contention. In short, the Board had ample 15 evidence in the record bef ore it to conclude that Jones was ill and f or that reason she decline d the assign ment. Gross-Todd, who was at that time approximately eight months pregnant, testified that she had intermittent pain thro ughout her shift, which returned in the afte rnoon . She further testified that once Jones assigned to her the 2:00 p.m. pic k-up, she decided to go home ill and told Jones, her direct supervisor, as such . While DART may take issue with the Board's decision as to the credibility of Gross-Todd, that decision is one which is beyond the f unction of this Court o n an appe al. Acc ordingly, the Decision of the Unemployment Insurance Appeal Board is AFFIRMED. IT IS SO ORDERED. J. 16
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