IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

VoNNIE BARGER,
C.A. No. K18A-05-001 NEP

APPELLANT,
In and For Kent County

UNEMPLOYMENT INSURANCE

APPEAL BOARD and CRILLY, INC.
d/b/a DUNKIN DONUTS,

APPELLEES.

ORDER

Submitted: September 4, 2018
Decided: October 9, 2018

Appellant/Claimant Vonnie Barger (hereinafter “Ms. Barger”) has appealed a
decision of the Unemployment Insurance Appeals Board (hereinafcer the “UIAB”),
Which affirmed the determination of the Appeals Referee denying her
unemployment benefits because she Was discharged from her employment With
Crilly, Inc. d/b/a Dunkin Donuts (hereinafter “Dunkin”) for just cause. Ms. Barger
filed this timely appeal on May 2, 2018.l Neither Dunkin nor the UIAB filed an
answering brief. The Court’s review is confined to the facts contained in the record,

and it is those facts that are referenced herein.

 

1 The decision Was mailed on April 25, 2018 and became final on May 4, 2018. Ms. Barger filed
her appeal on May 2, 2018, Within the l()-day appeal period. 19 Del. C. § 3323.

Vonnie Barger v. Unemp/oyment insurance Appeal Board, et a/.
K18A-05-001 NEP
October 9, 2018

Ms. Barger was discharged from Dunkin on December 20, 2017. Prior to her
discharge, Ms. Barger was reprimanded on several occasions by her supervisor,
Christopher Valentine (hereinafrer “Mr. Valentine”), including on September 30,
2016, for showing up an hour late for her assigned shifc, and on August 4, 2017,
when her cash register was $33.42 short. Additionally, Ms. Barger was warned by
Mr. Valentine on October l7, 2017, that she was the subject of multiple customer
complaints,2 including complaints of rude and disrespectful behavior, and she was
admonished at this meeting that any further complaints would result in demotion,
loss of hours, or termination. Ms. Barger received an ensuing customer complaint
on December 16, 2017, for not greeting and ignoring a guest when she came in, and
was subsequently terminated four days later. Noting the above facts, the UIAB found
that Ms. Barger demonstrated a pattern of conduct in violation of the employer’s
interest~,3 and was therefore discharged for cause, and disqualified from the receipt
of unemployment benefits.4 Ms. Barger timely appealed to this Court.

An appeal from an administrative board’s final order to this Court is confined to a
determination of whether the board’s decision is supported by substantial evidence
and is free from legal error.5 Evidence is substantial when it is such that a reasonable
mind might accept as adequate to support a conclusion.6 The board’s findings are

conclusive and will be affirmed if supported by “competent evidence having

 

2 In all, there were six customer complaints that were introduced into evidence at the Appeals
Referee hearing. These complaints range in date from August 2017 through December 2017.

3 See Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. Jul. 27,
2011) (“Violation of a reasonable company rule may constitute just cause for discharge if the
employee is aware of the policy and the possible subsequent termination”).

419Del. C. § 3314(2).

5 E.g., Unemployment Ins. Appeal Ba'. Dept. of Labor v. Duncan, 337 A.2d 308, 308 (Del. 1975);
Thompson v. Christiana Care Health System, 25 A.3d 778, 781-82 (Del. 2011).

6 Histed v. E.I. Dupom‘ deNemours & C0., 621 A.2d 340, 342 (Del. 1993).

2

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K18A-05-001 NEP
October 9, 2018

probative value.”7 The appellate court does not weigh the evidence or make its own
factual findings,8 but merely determines if the evidence is legally adequate to support
the board’s factual findings.9 The party that attacks the board’s decision bears the
burden of proof.10 However, it is generally accepted that where a decision to
terminate an employee is based on misconduct, the burden of proof lies with the
employer to establish the misconduct.ll

Pursuant to 19 Del. C. § 3314(2), a claimant is not eligible for benefits when
she is terminated from employment for “just cause.” “Just cause” is defined as a
“willful or wanton act in violation of either the employer’s interest, or of the
employee’s duties, or of the employee’s standard of conduct.”12 This Court uses a
two-step analysis in evaluating “just cause”: l) whether a policy existed, and if so,
what conduct was prohibited, and 2) whether the employee was apprised of the
policy, and if so, how she was made aware.13 Knowledge of a company policy may
be established by evidence of a written policy, such as an employer’s handbook, or
by previous warnings of objectionable conduct.l4

Ms. Barger’s lone argument for reversal relates to the merits of the UIAB’s

decision. She argues that her termination was solely a result of the December 16,

 

7 Geegan v. Unemployment Compensation Commission, 76 A.2d 116, 117 (Del. Super. 1950).
8Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).

9 29 Del. C. § 10142(d).

10 Dep't ofJustice v. Unemployment Ins. Appeal Ba'., 2016 WL 3742158, at *4 (Del. Super. July 6,
2016) (citations omitted).

11 Country Life Homes, Inc. v. Unemployment Ins. Appeal Ba'., 2007 WL 1519520, at *3 (Del.
Super. May 8, 2007).

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

13 Wilson, 2011 WL 3243366, at *2 (“Violation of a reasonable company rule may constitute just
cause for discharge if the employee is aware of the policy and the possible subsequent
termination”); see also McCoy v. Occidental Chem. Corp., 1996 WL 111126, at *3 (Del. Super.
Feb. 7, 1996); Parvusa v. Tipton Trucking C0., Inc., 1993 WL 562196, at *4 (Del. Super. Dec. 1,
1993).

14 McCoy, 1996 WL 111126, at *3.

Vonnie Barger v. Unemp/oyment Insurance Appeal Board, et al.
K18A-05-001 NEP
October 9, 2018

2017, complaint for which the video footage is ambiguous that she is the employee
being complained about. Ms. Barger argues that “neither her name nor a description
of the person the customer is complaining about is in the complaint,” and that the
UIAB erred in not reviewing the video footage prior to making its determination.
This Court disagrees. Although this video was not presented to the Appeals Referee
or the UIAB, it was reviewed with Ms. Barger at her meeting with Mr. Valentine on
December 20 prior to her termination. At this meeting and in his testimony, Mr.
Valentine attested to the fact that he believed the employee being complained about
in the video was Ms. Barger. Ms. Barger knew of the company’s policies via her
previous warnings and knew that an additional complaint could lead to her
termination This Court does not believe that a review of the video was necessary to
a finding of “just cause” to discharge Ms. Barger, particularly when the UIAB found
that she was terminated not simply for the final customer complaint, but rather for
the broad scope of her performance in violation of company policy.15

As noted by the UIAB, the incident from December 16 was not an isolated
incident of improper behavior at the workplace. Over a five-month period, from
August 2017 through December 2017, Ms. Barger had demonstrated a pattern of
rude and disrespectful behavior to customers on at least six identifiable occasions.
As the termination note from Mr. Valentine explained, Ms. Barger’s firing was a
culmination of “too many customer complaints,” not a reaction strictly to the latest
incident. Ms. Barger does not deny that she received a written warning in October
2017 regarding her conduct and the number of customer complaints she had

received, or that she was warned that demotion, loss of hours, or discharge would be

 

15 Additionally, this Court again notes that the appellate court does not weigh the evidence or make
its own factual findings, but merely determines if the evidence is legally adequate to support the
agency’s factual findings. Consequently, it would be inappropriate for this Court to review the
video footage from December 16 and make a determination as to its factual accuracy.

4

Vonnie Barger v. Unempioyment insurance Appea/ Board, et a/.
K18A-05-001 NEP
October 9, 2018

the consequence of receiving any more customer complaints. This was not a case of
being fired for a single instance of misconduct, but rather for a pattern of conduct in
violation of the employer’s interest.

Lastly, to the extent that Ms. Barger argues that she did not receive adequate
notice that a subsequent customer complaint could result in her termination, this
Court disagrees. As an initial matter, “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.”16 The Court notes that a “single
unambiguous waming” is not necessarily required in every case: “[t]he inquiry into
whether a warning is sufficient to put the employee on notice is ‘very fact
specific.”’17 More pointedly, during the UIAB hearing, Ms. Barger admitted to
having received several complaints and warnings, with her final warning in October
2017 stating that additional customer complaints could result in termination While
Mr. Valentine admitted in his testimony before the UIAB that there is no “per se”
company policy regarding how many customer complaints is “too many,” it is clear
that Ms. Barger had knowledge of the company’s policies and her infractions, and
that she was on notice as of October 2017 that subsequent infractions could result in
termination.18

As mentioned above, this Court’s review is confined to the facts contained in
the record. The Court does not weigh the evidence or make its own factual findings.
Rather, it merely determines if the evidence is legally adequate to support the
agency’s factual findings. Upon a review of the record, the Court finds that the

written warning dated October l7, 2017, unambiguously advised Ms. Barger of the

 

16 Coleman v. Departmem OfLabor, 288 A.2d 285, 288 (Del. super. 1972) (citation omitted)
(emphasis in original).

17 Murphy & Lana'on, P.A. v. Pernic, 121 A.3d 1215, 1224 (Del. 2015).

18McCoy, 1996 WL 111126, at *3.

Vonnie Barger v. Unemployment insurance Appea/ Board, et al.
K18A-05-001 NEP
October 9, 2018

specific behaviors for which she was ultimately terminated, i.e., receiving too many
customer complaints. Ms. Barger was informed that these behaviors were
unacceptable and would result in demotion, loss of hours, or discharge, if repeated.
The Court finds there was substantial evidence to support the UIAB’s determination
that the notice provided was adequate, that Ms. Barger exhibited a pattern of conduct
in violation of the employer’s interest, and that she was terminated for “just cause.”
Ms. Barger has failed to carry her burden of showing why the UIAB’s decision
should be reversed.

WHEREFORE, the decision of the Unemployment Insurance Appeals Board
is AFFIRMED.

IT IS SO ORDERED.

/s/ Noel Eason Primos

 

Judge

NEP/wj s
Via File&ServeXpress, U.S. Mail & Email
oc. Prothonotary
cc. Vonnie Barger
Crilly, Inc. d/b/a Dunkin Donuts
Counsel of Record

