1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHANEIA HARRIS, ) ) Claimant

- Appellant, ) )

v. ) C.A. No. N19A

- 11

- 005 VLM )
DELAWARE DEPA R TMENT OF ) LABOR and ) THE UNEMPLOYMENT ) INSURANCE APPEAL BOARD ) ) Employer

- Appellees. )

ORDER

Date Submitted: September 3, 2020 Date Decided: November 30

, 2020

Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment

Insurance Appeal Board

, AFFIRMED

.

John D. Stant II, Esquire, Legal Services Corporation of Del a ware, Inc., Wilmington, DE. Attorney for Appellant

.

Stacey X. Stewart, Esquire, Department of Justice , Wilmington, DE. Attorney for the Delaware Department of Labor

.

Monica L. Townsend, Esquire, Department of Justice, Wilmington, DE. Attorney for Appellee Unemployment Insurance Appeal Board

.

MEDINILLA, J.2 I. INTRODUCTION

Appellant, Shaneia Harris (“Harris”) appeals a decision of the Unemployment

Insurance Appeal Board (“Board”) that found that the Delaware Department of

Labor (“Employer ” ) discharged her for just cause, thereby disqualifying her from

receiving unemployment insurance benefits pursuant to 19 Del. C. § 3314(2). Upon

consideration of the arguments, submissions of the parties, and the record in this

case, the Court hereby finds as follows:

1. Harris worked as part

- time (casual employment) security guard for

a pproximately six months from October 2018 to April 2019

. 1 I n the early months

of her employment

, Harris ’s supervisor appeared relatively flexible and allowed

Harris to take days off as needed

. 2 It is undisputed that attendance and tardiness

issues started in December and lasted through the remainder of her time with

Employer. 3

2. On M arch 22, 2019, she was verbally warned that her attendance would

have to improve. 4 On March 25, 2019, Harris’s supervisor sent an email confirming

that her attendance needed to i mprove, 5 stating, “further [attendance issues] will be

1 See Opening Brief, D.I. 9, at 1 [hereinafter Opening Br.]

. 2 See Opening Br. at 1; R. at 23.

3 From December 27 through April 22, 2019, Employer recorded fifteen instances of lateness or absenteeism. R. at 55.

4 See Opening Br. at 2; R. at 26.

5 R. at 51.3

considered insubordination and dealt with accordingly.” 6 Thereafter, Employer

documented seven additional attendance issues and terminated her employment on

April 24, 2019. 7

3. Harris filed a claim for unemploymen t benefits with the Division of

Unemployment Insurance. 8 On May 21, 2019, a Claims Deputy found that

Employer discharged Harris for ju st cause disqualifying her from unemployment

benefits pursuant to 19 Del. C. § 3314(2). 9 Harris timely appeal ed to an Appeals

Referee. 10 On June 18, 2019

, following a hearing, the Appeals Referee affirmed the

Claims Deputy’s decision that Employer met its burden of proof that H arris’ s

termination was for just cause. Harris timely appealed the decision to the

Unemployment Insurance Appeal Board (Board

. ) 11

4. On October 23, 2019, the Board heard Harris ’s appeal. 12 Harris argued

the Appeals Referee’s decision wa s legally incorrect because she never received an

unequivocal warning. 13 The Board disagreed. On October 28, 2019, the Board

upheld the Appeals Referee’s decision finding th at th e email Harris received from

6 Id.

7 See Opening Br. at 4; R. at 51

. 8 See Opening Br. at 2

. 9 See id. ; R. at 1

- 2.

10 See Opening Br. at 2; R. at 7.

11 See Opening Br. at 2 ; R. at 54

- 55.

12 See Opening Br. at 4

. 13 Id. ; R. at 64.4

her supervisor was a “clear warning” of the disciplinary consequences that

occurred. 14

5. On November 6, 2019, Harris appealed the Board’s decision

. On

December 30, 2019, Harris, through counsel, filed her opening brief. On Marc h 10,

2020, Employer filed its R esponse. The same day, the Board filed a letter stating it

took no position. Due to the global pandemic, review of this matter was temporarily

stayed. 15 On J uly 21, 2020, Harris filed her R eply brief and t his Court was assigned

the matter on September 3, 2020. The matter is now ripe for review.

II. STANDARD OF REVIEW

6. On an appeal from the Board, this “[C] ourt must determine whether the

findings and conclusions of the Board are free from legal error” and whether they

are “supported by substantial evidence in the record.” 16 Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” 17 The Court does not “weigh the evidence or make determinations

14 R. at 75.

15 The United States of America and the State of Delaware declared states of emergency due to
COVID

- 19 that resulted in court closures to address public safety concerns. Per Administrative Directives of the Supreme Court of the State of Delaware, “[u]nder th e authority of 10 Del. C. § 2004, the judicial emergency for all State courts and their facilities in Delaware [was] extended for another 30 days effective November 5, 2020 . . . .” Administrative Order No. 12 Extension of Judicial Emergency (Del. Nov. 3, 2020).

16 Wilson v. Unemployment Ins. Appeal Bd. , 2011 WL 3243366, at *2 (Del. Super. July 7, 2011) (citing Unemployment Ins. Appeal Bd. v . Martin , 431 A.2d 1265, 1266 (Del. 1981); Pochvatilla v. United States Postal Serv. , 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. § 3323(a)).

17 Byrd v. Westaff USA, Inc. , 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting Oceanpor t Industries, Inc. v. Wilm. Stevedores, Inc. , 636 A.2d 892, 899 (Del. 1994)).5

based on credibility or facts.” 18 Absent an abuse of discretion by the Board, this

Court will uphold the Board’s determination. 19

III. DISCUSSION

7. Pursuant to 19 Del. C. § 3314(2), an individual is disqualified from

receiving unemployment benefits when terminated for “just cause.” 20 Under

Delaware law, just cause is a “willful or wanton act in violation of either the

employee’s interests, or the employee’s duties, or of the employee’s expected

standard of conduct.” 21 An isolated absence will likely not suffice

. 22 When an

employee is aware of a company policy and/or received ade quate warning, “the court

has held repeated absenteeism to be a ‘willful and wanton’ violation of the

‘employer’s interests’ and the ‘employee’s duty.’ ” 23

8. Here, the Board considered whether Harris knew that her absences were

in vi olation of Employer’s policy . The Employer presented evidence that var ious

verbal discussions took place between Harris and her supervisor related to her

18 Id

. (citing Johnson v. Chrysler Corp. , 203 A.2d 64, 66 (Del. 1965)).

19 See Funk v. Unemployment Ins. Appeal Bd. , 591 A.2d 222, 225 (Del. 1991).

20 19 Del. C. § 3314(2) provides that an individual shall be disqualified from benefits,

“ [f]or the week in which the individual was discharged from the individual's work for just cause in connection with the individual's work and for each week thereafter until the individual has been employed in each of 4 subsequent weeks (whether or not conse cutive) and has earned wages in other employment equal to not less than 4 times the weekly benefit amount. ”

21 Keim v. Greenhurst Farms , 2001 WL 1490060, at *2 (Del. Super. Nov. 19, 2001 ) (citing Abex Corp

. v. Todd , 235 A.2d 271, 272 (Del. Super. 1967) ).

22 See Martin v. Delaware Supermarkets , Inc. , 2012 W L 2700460, at *4 (Del. Super. July 5, 2012) (citing Weaver v. Emp’ t Sec. Comm ’ n, 274 A.2d 446, 447 (Del. Super. 1971) ; Boughton v. Division of Unemployment Ins. of Dept. of Labor, 300 A.2d 25, 27 (Del. Super. 1972) ).

23 Martin

, 2012 WL 2700460, at *4 (quoting Kiem , 2001 WL 1490060, at *2).6

tardiness and absences. Harris claims the Employer was tolerant of the conduc t and

focuses primarily on the language of t he sole written email that served to

memorialize the then most recent communication between her and her supervisor to

suggest that the Board erred in finding that the warning was unambiguous. This

Court disagrees.

9. The Court considers and rejects Harris’s argument that because her

supervisor may have previously tolerated her absences, her Employer failed to

provide an unambiguous warning that termination would result for continued

absences. A warning, written or otherwise, is only required when there has be en

prio r acquiescence by the employer. 24 As noted, that was not the case here. While

the supervisor may have been tolerant at first, Harris’s conduct did not improve

despite attempts to speak to her about it. By March 2019, t he record is clear that

Harri s receiv ed warning

– first verbal, then in written form via email

– that her

absences and tardiness continued to be problematic. 25

10. E qually unavailing is Harris’s argument that the written warning was

ambiguous because it did not explicitly state that her absences would result in

termination. Delaware law does not require a warning inform the employee of

24 Ortiz v. Unemployment Ins

. Appeals Bd

. , 317 A.2d 100, 101 (Del. 1974) (fairness required a waring where employer condoned absenteeism for months but warning not always required) ; see also Smoot v. Comcast Cablevision , 2004 WL 2914287, at *4 (Del. Super. Dec. 16, 2004) (“As long as the company policy is c learly communicated to the employee, the employer has given adequate notice to justify termination of employment after a single violation of that policy.”).

25 See R. at 26, 51.7

termination. 26 Instead, the warning must put employee on sufficient notice that her

behavior was in violation of Employer’s Policy. 27 Th at was done . I n addition to

speaking directly with her on March 22, her supervisor memorialized the discussion

via email reminding her that absences were against the employer’s policy

, stating

that “ further acts of absenteeism would be considered insubordination and dealt with

accordingly. ” 28 She was also directed to contact her supervisor if she was going to

be late or not show up

. 29 I n the last instance, she did neither. 30 Even if Employer

had tolerated Harris’s behavior at first ( after perhaps the first seven instances of

lateness or tardiness,) the Court finds that Employer did not continue to do so,

provid ing an unambiguous warning in March 2019

.

11. After both verbal and written warning, Harris then engaged in several

“ further inc idents” of unchanged conduct before Employer took the forewarned

disciplinary action of termination. As such, t he Board had before it substantial

evidence to support its ruling that the continued conduct was “willful or wanton,”

26 Delaware law does not require warnings to state the consequences of given act s to any particular level of specificity. Coleman v. Dept. of Labor , 288 A.2d 285, 288 (Del. 1972) (“[The] absence of advanced warning concerning the consequences of given acts, as opposed to notice of their impropriety, does not preclude a discharge for willful misconduct.”) ; see also Powell v. Northeast Treatment Centers, Inc. , 2003 WL 23274835, at *5 (Del. Super. Dec. 17, 2003) (“This warning need not expressly state the ultimate consequences, but must give notice of the impropriety of the acts.”); Breese v. Unemployment Ins. Appeals Bd. , 1993 WL 258853, at *3 (Del. Super. June 24, 1993) (inferring that written warning of consequences is not required)

. 27 See Bear

- Glasgow Dental v. Edwards , 2007 W L 1651988, at *3 (Del. Super. May 29, 2007).

28 R. at 51 (e mphasis added )

. 29 Id. at 28

- 29.

30 Id. at 29

- 30.8

and her inability to show up for work on time or at all (albeit perhaps for good

reasons) was nevertheless “in violation of either the employer’s interests, or the

employee’s duties, or of the employee’s expected standard of conduct.” 31

12. The record supports a finding that Employer met its burden that Harris

was terminated for just cause and not eligible for unemployment benefits. T here is

no error of law. For the foregoing reasons , the Board’s decision is AFFIRMED.

IT IS SO ORDERED.

/s/ Vivian L. Medinilla Vivian L. Medinilla Judge

oc: Prothonotary

31 Kiem , 2001 WL 1490060, at *2 (citing Abex Corp. v. Todd , 235 A.2d 271,272 (Del. Super. 1997) )

.