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Malone v. Alliedbarton Security Services, LLC

Superior Court of Delaware, New Castle

October 22, 2012


Submitted: September 25, 2012

Upon Appeal from the Unemployment Insurance Appeal Board.

Clarence J. Malone, 42 Danbury Drive, Newark, Delaware, 19702, Appellant.

Kathleen Furey McDonough, Esquire, Lindsay O. Clizbe, Esquire, Potter, Anderson & Corroon, LLP, Wilmington, Delaware; Of Counsel: Brian Holladay, Esquire, Martenson, Hasbrouck & Simon, LLP, Atlanta, Georgia, Attorneys for Appellee, AlliedBarton Security Services, LLC.



Clarence Malone has appealed the decision of the Unemployment Insurance Appeal Board denying his claim for benefits. The Board found that Malone, who was a security guard, had been terminated for "just cause" for failing to follow procedures regarding door alarms. Several months prior, he had been reprimanded for sleeping on the job. The evidence before the Appeals Referee, whose decision upon which the Board substantially relied, and the Board, involved issues of credibility. Such issues are matters for the Appeals Referee and the Board to resolve and not this Court. The findings of the Appeals Referee and the Board are AFFIRMED.

Factual Background

Malone was employed as a part-time security officer at Allied Barton Security Services, LLC ("Employer" or "Allied Barton") from September 25, 2010, until September 19, 2011. While employed with Allied Barton, Malone was assigned to work at, one of Allied Barton's clients. On the date of hire, Malone received a copy of the employee handbook, including the code of ethics. He signed his name and printed his name on the last page of the employee handbook. Among other things acknowledged on the receipt of the employee handbook was strict compliance with the policies and requirements of the Employer's handbook. Included in the employee handbook were acceptable standards pertaining to Malone's final warning and subsequent termination. Additionally, the receipt indicated "disciplinary action, up to and including termination"[1] would result if the policies and requirements were violated.

On May 24, 2011, Malone received a write up for "[k]knowingly providing unacceptable service to a client."[2] The disciplinary statement describing the incident indicates that on May 24, 2011, Malone had fallen asleep while on duty as a screener and was noticed by an Amazon manager. The manager proceeded to remove the keys from the desk where he was sleeping. Malone did not wake up even after the keys to the building were removed.[3] The notice stated it was Malone's final warning. He agreed with the statements on the disciplinary document and signed the document on May 24, 2011.

Malone's next infraction led to his termination. On August 17, 2011, he was working at the desk at one of the sites when conducted an internal audit. The lost prevention manager for purposely performed a test on an exterior door. When this test is conducted, the alarm sounds and the alarm monitoring system is immediately alerted. Proper procedure required Claimant to respond by contacting another officer to check the alarm. This procedure was outlined in his signed employee handbook and during training. Instead of following Allied Barton's procedural requirements, Malone did not check the doors. After about five minutes of non-responsiveness, the alarm monitoring company contacted him, stated an alarm was sounding and asked if he knew who it was, or why the alarm was going off. Without contacting another officer or otherwise investigating the reason for the alarm, Malone assumed it was a contractor working on the door.[4]

Malone signed a disciplinary statement describing the alarm drill incident on August 18, 2011. He stated he agreed with the comments on the statement and conceded to making a mistake in handling the situation.[5] Malone was subsequently terminated as a result of "[g]ross [i]nsubordination or misconduct on company or client premises."[6]

A Claims Deputy determined Malone had been terminated for "just cause." The Appeals Referee held a hearing, at which Malone and an Employer representative testified. The Appeals Referee also held that Malone was discharged from his employment with "just cause" and was therefore, disqualified from receiving benefits. The Appeals Referee stated:

Employees are hired to perform duties as required to the best of their ability and to adhere to the rules established by the employer in order to promote the business interests of the employer. Certainly, failing to follow a known employer procedure represents a reckless indifference to one's job duties and rises to the level of willful and wanton misconduct. This is the type of conduct that an employer does not expect nor does an employer have to tolerate.
The claimant knew that when the alarms sounded he was supposed to get up and check out the reason. His failure to do so on August 17, 2011 was an intentional disregard for the employer's business interests. The claimant's actions rose to the level of willful and wanton misconduct. The employer had just cause to ...

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