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DANIEL M. PAVUSA Appellant
vs.
TIPTON TRUCKING CO. INC. and the UNEMPLOYMENT INSURANCE APPEAL BOARD Appellees.
 
Case:
C.A. No. 92A-12-009
 
Location:
SUPERIOR COURT OF DELAWARE NEW CASTLE
 
Date:
December 1 1993 Decided
 
Attorneys:
Daniel M. Pavusa Pro Se Newark Delaware Appellant. Eugene J. Maurer Jr. Esquire Wilmington Delaware Counsel for Tipton Trucking Co. Inc. Appellee.
 
Court:
COOCH
 
Author:
The Hon. Justice Richard R. Cooch
 

This is a pro se appeal by Daniel M. Pavusa (Employee) from a decision of the Unemployment Insurance Appeal Board (the Board) affirming a determination by an Appeals Referee of the Delaware Department of Labor (the Referee) that had denied Employee unemployment benefits because of Employee's consumption of alcohol on one occasion before reporting to work. For the following reasons this Court reverses the Board's affirmance of the decision of the Appeals Referee and remands the case to the Board for further proceedings not inconsistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Employee was employed as a "yard man" by Tipton Trucking Co. Inc. (Employer) from October 15 1990 until September 4 1992 when he was discharged for "drinking and threatening an employee of a customer." (Appeals Ref. dec. of 10/26/92 at 2). n1 On or about September 8 Employee filed a claim for unemployment compensation pursuant to 19 Del.C. SEC. 3317. On September 29 an Unemployment Insurance Claims Deputy from the Delaware Department of Labor (the Claims Deputy) concluded that Employee had been discharged for "just cause" and determined pursuant to 19 Del.C. SEC. 3315(2) that Employee was not eligible to receive unemployment benefits.

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n1 Tipton Trucking Co. Inc. is a transportation carrier. Hence its employees often work at other companies' plants and/or with employees of other transportation companies. On September 4 1992 Employee (on behalf of Tipton Trucking Co. Inc.) was working at a Georgia Pacific plant as were employees of Cleveland Ground Transport another transportation carrier.

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Employee appealed this determination and a hearing was held on October 19 before the Referee. At the hearing Employee appeared pro se and testified that at around 2:15 p.m. on September 4 he ate lunch and "had a couple of beers before [he] went to work" [at the loading dock] at 3:00 p.m. (Tr. Appeals Ref. Hr'g at 8) but denied that he was "under the influence." (Tr. Appeals Ref. Hr'g at 12). Employee testified that at around 4:30 p.m. a Georgia Pacific employee threatened to cut his throat and that at around 11:30 p.m. the same Georgia Pacific employee picked up a two-by-four and threatened him with it; Employee stated that he only had a Bic pen with which to defend himself. Employee testified that no physical contact resulted and that the altercation was initiated by the Georgia Pacific employee which Employee attributed to the fact that the Teamsters generally dislike non-union workers such as himself. (Tr. Appeals Ref. Hr'g at 12).

Employer also appeared at the hearing without counsel. Frank Tipton (Mr. Tipton) testified on behalf of Employer that he received a phone call at his home at about 11:30 p.m. on September 4 from Bob Fuller (Fuller) of Georgia Pacific who told him that Employee had been drinking and that Employee and another carrier's employee were threatening a Georgia Pacific employee. He testified that Fuller told him that Fuller would escort these two off the property.

Mr. Tipton testified that he initially suspended Employee until he could determine what had actually happened. Mr. Tipton testified that he went to a meeting at Georgia Pacific the next afternoon where Fuller recounted the events of the day before told Mr. Tipton that Employee had been drinking and advised Mr. Tipton further that he did not want Employee back on Georgia Pacific property. Mr. Tipton said that Fuller stated that he was apprised of these events by the shift supervisor Bob Coleman. Employee was discharged Tuesday September 8. n2

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n2 Monday September 7 was a Labor Day holiday.

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Mr. Tipton testified that he was told by Fuller that Employee had alcohol on his breath on September 4. (Tr. Appeals Ref. Hr'g at 13). The Referee asked Mr. Tipton whether having "a couple of beers" before coming to work was a violation of Employer's policy. Mr. Tipton responded saying

Well I didn't know he drank beers until just now. We don't . . .transportation DOT we there's a company policy. We don't even allow alcohol on the property. You know and he knows that. I've made that sure cause I didn't even know that until just now. You know cause the job over there boy you got to be real careful. Its dangerous.

Alcohol stays in your system for at least 8 hours.

(Tr. Appeals Ref. at 14). This was the only evidence before the Referee concerning 1) Employer's policy regarding consumption of alcohol by its employees and 2) whether any such policy was ever communicated to Employee.

The Referee's decision correctly noted that Employer had the burden of proving that Employee should be disqualified from benefits and the Referee correctly held that the testimony presented by Mr. Tipton regarding the altercation (between Employee and another employee) was hearsay. The Referee held that there was insufficient evidence to establish that Employee had made any threatening remarks to the Georgia Pacific employee. n3 (Appeals Ref. dec. at 3).

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n3 This issue therefore is not addressed in this appeal. See Neal v. Caldwell Temporary Services Inc. Del. Super. C.A. No. 92A-08-10 Cooch J. (July 27 1993) Mem. Op. at 3 (holding that the Referee and the Board's findings cannot be based on hearsay evidence alone) (citing Cannon v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 89A-AP-2 Graves J. (Aug. 2 1991) Letter Op. at 6).

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The Referee however made a separate finding regarding Employee's consumption of alcohol. The Referee stated:

However by the claimant's own admission he had consumed two beers approximately 45 minutes before reporting for work. An employee who reports for work under the influence of alcohol presents a danger to himself his fellow employees as well as the employer's business interest. The claimant's consumption of two beers prior to reporting for work constitutes willful or wanton misconduct.

(Appeals Ref. dec. at 3). The Referee thus affirmed the decision of the Claims Deputy and held that Employee was discharged from his work for "just cause" and was thereby disqualified from benefits. The Referee made no finding that Employer had a policy which prohibited Employee's conduct of which Employee had been given notice. This decision was appealed by Employee to the Board.

The Board held a hearing on December 2 at which it heard testimony from Employee and Mr. Tipton both of whom appeared pro se. Employee testified that he was not certain on which day he had consumed the beer but that even if such consumption did occur on September 4 he was not under the influence when he reported to work. (Tr. Bd. Hr'g at 2).

Employee testified that one of his job duties included driving a truck around the dock yard. Mr. Tipton testified that "the ICC regulates that you cannot [drink and then drive] whether its on private property [or the] interstate highway system[ within] eight hours before coming on duty." (Tr. Bd. Hr'g at 5). Mr. Tipton offered no testimony as to whether any pertinent ICC regulation was ever incorporated into Employer's policy and/or ever communicated to Employee.

The Board adopted the findings of fact of the Referee and summarily affirmed the Referee's decision denying benefits to Employee. This appeal followed.

DISCUSSION

Employee cites numerous grounds for appeal n4 which can be consolidated as follows:

First Employee states that Employer's actions violated the Taft-Hartly Act (29 U.S.C. SEC. 141 et seq.). Employee has not alleged how the Act was violated nor provided any specifics upon which he bases this argument other than suggesting that the real controversy is one of discrimination by union members against nonunion members. Since Defendant has failed to brief this argument it is deemed abandoned. State v. Machin Del. Super. Cr.A. No. IN92-08-1508 Cooch J. (Aug. 2 1993) Mem. Op. at 2 n.1 (citing Barr v. State Del. Supr. No. 319 1989 Christie C.J. (Dec. 27 1989) (ORDER) at 3.

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n4 Court has attempted to characterize Employee's grounds for appeal as a recognizable legal argument. See Jackson v. Unemployment Ins. Appeal Bd. Del. Super. C.A. 85A-NO-9 Bifferato J. (Sept. 24 1986) Letter Op. at 3 (holding that the Superior Court may exhibit some degree of leniency toward a pro se litigant to ensure that his case is fully and fairly heard).

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Second Employee essentially argues that the Board's findings are unsupported by substantial evidence and/or the Board erred as a matter of law in finding his conduct constituted "just cause" for termination. Employee apparently contends that despite his admission of consuming two beers 45 minutes before coming to work that those facts are insufficient to establish a violation of Employer's policy regarding alcohol consumption since he maintains that he was not under the influence. In response Employer argues that the Board's decision was based on substantial evidence free from fraud and errors of law and thus should be affirmed.

A. Standard of Review

On appeal from the Board this Court's review is limited to a determination of whether there is substantial evidence on the record sufficient to support the Board's findings and whether such findings are free from legal error. Unemployment Ins. Appeal Bd. v. Duncan Del. Supr. 337 A.2d 308 309 (1975); Longobardi v. Unemployment Ins. Appeal Bd. Del. Super. 287 A.2d 690 692 (1971) aff'd 293 A.2d 295 (1972). n5 "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it is more than a scintilla but less than a preponderance." Plants Inc. v. Unemployment Ins. Appeal Board Del. Super. C.A. No. 86A-OC-1 Martin J. (Oct. 22 1987) Letter Op. at 3 (citing Shipman v. Division of Social Services Del. Fam. 454 A.2d 767 768 (1982) aff'd Betty J.B v. Division of Social Services Del. Supr. 460 A.2d 528 (1983)); Olney v. Cooch Del. Supr. 425 A.2d 610 614 (1981).

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n5 In light of the fact that the Board adopted the decision of the Referee Court will also review the Referee's findings of fact and conclusions of law in this case. See Boughton v. Division of Unemployment Ins. of the Dep't of Labor Del. Super. 300 A.2d 25 26 (1972).

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B. There is Insufficient Evidence in the Record of Employer's Policy and/or Communication of Same to Employee to Warrant Employee's Termination for "Just Cause."

After a careful review of the record this Court finds that the record does not contain sufficient evidence to sustain the Board's implicit finding that Employer had a policy prohibiting off premises consumption of alcohol by employees or that any such policy had been communicated to Employee. 19 Del.C. Sec. 3315(2) provides that an individual shall be disqualified from receiving benefits ". . . for the week in which he was discharged from his work for just cause in connection with his work." (emphasis added). "Just cause" has been defined as a "wilful or wanton act in violation of either the employer's interest or of the employee's duties or of the employee's expected standard of conduct." Abex Corp. v. Todd Del. Super. 235 A.2d 271 272 (1967). An employer has the burden of proving "just cause" by a preponderance of the evidence before the employee may be disqualified from benefits. See Short v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 85A-MY-1 Chandler J. (April 2 1986) Mem. Op. at 2. It has further been held that "reporting to work after consuming alcohol in violation of an employer's no-alcohol policy may constitute 'just cause' for termination." Johnson v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 92A-09-004 Steele J. (July 9 1993) (ORDER) at 4.

In Johnson the employer a fast food restaurant had a policy stating No employee shall drink or be under the influence of any alcoholic beverage or illegal drug while working a scheduled shift. Johnson supra at 2. The employee a restaurant worker had signed an "Employee Awareness Form" setting forth this policy. Id. Approximately one week after the employee signed that form his supervisors confronted him after smelling alcohol on his breath. The employee "admitted to drinking a shot and one beer approximately two hours before coming to work." Id. The employee was discharged after this incident. The Board decided the employee was ineligible for unemployment benefits because he had been terminated for "just cause but on appeal, the Superior Court reversed, stating:

While violation of a reasonable company rule may be considered "just cause" for termination the language of the rule must apprise employees of the prohibited conduct. I find [Employee's] conduct in this case does not rise to the level of wilful or wanton conduct in violation of [Employer's] policy as it is currently worded. The policy does not prohibit off premises consumption. It prohibits only consumption during working hours and working while "under the influence."

Johnson supra at 5 (emphasis added). n6 Thus before it can be determined whether Employee violated Employer's alcohol policy two threshold questions must be answered: 1) Whether Employer had a policy regarding alcohol usage and if so what conduct was prohibited and 2) Whether Employee was apprised of this policy (and specifically of the prohibited conduct) and if so how he was made so aware. Johnson supra at 5-6. See Flowers v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 92A-11-015 Barron J. (Sept. 15 1993) (ORDER) at 8 (holding that where claimant had consumed alcohol before coming to work the pivotal question was when he consumed it); Delgado v. Unemployment Ins. Appeal Bd. Del. Super. 295 A.2d 585 587 (1972) (holding that where a claimant was not advised of the employer's rule requiring a doctor's certificate for absences his unsubstantiated absence did not disqualify him from receiving benefits). See also Johnson v. Department of Employment Sec. Utah App. 782 P.2d 965 971 (1989) (holding that where a positive drug test revealed marijuana metabolites in the blood of an employee who drove his employer's motor vehicles the employee must have had a knowledge of the conduct which the employer expected and that such knowledge may be established where the employer had a pertinent written policy or where the employee had been warned regarding such objectionable conduct); Jensen v. Mary Lanning Memorial Hosp. 233 Neb.66 443.N.W. 2d 891 894 (1989) (holding that "it is misconduct for employees to report to work with the odor of alcohol of their breath after having been warned not to do so").

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n6 While "under the influence" has not been precisely defined in the context of an unemployment insurance appeal case having alcohol on one's breath slurred speech and difficulty walking have been considered evidence of this condition. See Whitten v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 82A-OC-14 Taylor J. (Sept. 22 1983) (ORDER) at 5.

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The foregoing threshold facts must therefore be established before it can be determined whether or not Employee violated any rule of Employer by Employee's having admittedly consumed two beers approximately 45 minutes before coming on duty and/or by arriving at work with the smell of alcohol on his breath.

The question as to whether the Board made a decision supported by substantial evidence is best answered by considering what constitutes substantial evidence.

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it is more than a scintilla but less than a preponderance. Shipman v. Division of Social Services Del. Fam. 454 A.2d 767 768 (1982). n1 A scintilla of evidence is a spark of evidence. It is a word used to describe a very insignificant item or particle of evidence. Black's Law Dictionary 1207 (5th ed. 1979) A preponderance means such relevant evidence which would enable a court to determine who should prevail. A preponderance is reached when the weight of the evidence tips the scale. Shipman 454 A.2d at 768.

n1 Substaintial evidence is the lowest standard of proof with the next highest being a preponderance. The third level is clear and convincing and the fourth is beyond a reasonable doubt. The substantial evidence standard is most often used by appellate courts in determining if sufficient evidence exists to support conclusions of fact made by the trial court. Shipman 454 A.2d at 768. Plants Inc. v. Unemployment Ins. Appeal Bd. supra at 3. See also Olney v. Cooch 425 A.2d at 614.

The record of the proceedings below simply does not establish whether Employer had a rule apart from any DOT or ICC regulations prohibiting Employee's conduct and if a rule did exist whether it was "specific enough to inform [Employee] of the expected standard of conduct." Johnson supra at 6. It is unclear from the record whether Employer had its own policy or whether Employer is merely relying on either State or Federal "DOT" (Tr. Appeals Ref. Hr'g at 14) and/or "ICC" (Tr. Bd. Hr'g at 5) regulations. If Employer is relying upon Employee's violation of governmental regulations Employer must establish what specific regulations Employee allegedly violated by his conduct See Short v. Unemployment Ins. Appeal Bd. supra at 2 (holding that Employer has the burden of proving just cause by a preponderance of the evidence before the employee will be disqualified from benefits). Likewise and importantly the record lacks sufficient evidence that any applicable policy was communicated to Employee. Coleman v. Department of Labor Del. Super. 288 A.2d 285 (1972).

In Coleman the employee became intoxicated at work and was sent home without pay for the remainder of the day. Approximately one hour later the employee returned to work took a toy revolver from a bag and waived it in the air causing employees to scatter. While the Court found that the disturbance involving the toy revolver was the predominant factor resulting in the employee's discharge Court also held that becoming intoxicated on duty was such a conscious act that it constituted wilful misconduct. In response to the employee's argument that he should have been warned that such conduct would result in his discharge Court stated

In Court's opinion the absence of advanced warning concerning the consequences of given acts as opposed to notice of their impropriety does not preclude a discharge for wilful misconduct. . . . [Employer's] testimony to the effect that drinking was never allowed on duty if believed was a sufficient basis from which the Board might have inferred that petitioner was on notice that drinking was not tolerated.

Coleman 288 A.2d at 288 (citations omitted). The record below unlike in Coleman does not sufficiently demonstrate that Employee had been given "notice of [the] impropriety" of his acts in the context of Employer's purported alcohol policy. A close reading of the record reveals that Mr. Tipton stated only: "There's a company policy. We don't even allow alcohol on the property. You know and he knows that." (Tr. Appeals Ref. Hr'g at 14). Although Coleman held under the facts of that case that the Board could have reasonably "inferred" that the employee was "on notice that drinking was not tolerated Coleman, 288 A.2d at 288, this Court cannot hold that Mr. Tipton's extremely abbreviated testimony on these important issues amounts to sufficient substantial evidence otherwise allowing affirmance of the Board's decision. Further, assuming arguendo that Employee did in fact know that alcohol was not allowed on Employer's property, it does not necessarily follow that Employee was aware that consuming alcohol off of the premises within an hour of reporting to work was prohibited conduct in violation of Employer's alcohol consumption policy. Coleman presents a clearer case of misconduct, as there the employee became intoxicated on the employer's property while on duty.

Alternatively if Employer is relying solely on DOT and/or ICC regulations it is the Employer's burden to prove that Employee's conduct was in violation of same. Short supra at 2. These factual determinations are necessary to determine Employee's eligibility or lack thereof for unemployment benefits.

CONCLUSION

Court concludes that insufficient evidence exists to support the Board's finding that Employee was discharged for "just cause thereby being disqualified for unemployment benefits in accordance with 19 Del.C. SEC. 3315(2). The decision of the Board is reversed and the case is remanded to the Unemployment Insurance Appeal Board for further hearings not inconsistent with this opinion.

IT IS SO ORDERED.