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Melhem v. Department of Justice & Unemployment Insurance Appeal Board

Superior Court of Delaware, New Castle

April 24, 2014

ANNA B. MELHEM, Appellant,
v.
DEPARTMENT OF JUSTICE and THE UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellees.

Submitted: January 24, 2014

On Appeal from the Decision of the Unemployment Insurance Appeal Board.

Anna B. Melhem, Esq., Wilmington, Delaware, 19809. Pro Se Appellant.

Kevin R. Slattery, Esq., Department of Justice, Wilmington, Delaware 19801. Attorney for the Department of Justice.

James T. Wakley, Esq., Department of Justice, Wilmington, Delaware, 19801. Attorney for the Unemployment Insurance Appeal Board.

ORDER

CALVIN L. SCOTT JUDGE

Introduction

Before the Court is Appellant Anna Melhem's ("Appellant") appeal from the decision of the Unemployment Insurance Appeal Board (the "Board") affirming the decision of the Appeals Referee and finding that Appellant was discharged for just cause in connection with her work. The Court has reviewed the parties' submissions and the record below. For the following reasons, the Board's decision is AFFIRMED.

Background

Beginning in September 2007, Appellant was employed by the Delaware Department of Justice ("DOJ") as a casual/seasonal paralegal.[1] In January 2013, Appellant was terminated for sending an e-mail through the State e-mail system to a private attorney in a matter unrelated to her duties at the DOJ.[2] The private attorney, Christine Demsey ("Ms. Demsey"), is a Delaware attorney who was representing a party involved in a divorce. Appellant's friend was the other party involved in the divorce and Appellant served as a third-party between the divorcing spouses for the purpose of child visitation. Using her State e-mail account, Appellant e-mailed Ms. Demsey's client and requested that he provide her with certain documents.[3] The client contacted Ms. Demsey and forwarded Appellant's emails. As a result, Ms. Demsey sent an e-mail to Appellant instructing her not to contact her client.[4] Appellant responded that she would no longer contact Ms. Demsey's client on her friend's behalf, but that she "certainly will not be told who [she] can and cannot email independently of [her] friendship…" [5]

On January 17, 2013, Appellant sent the e-mail that triggered her termination. That day, while Appellant stayed home in order to care for her sick child, she received a reply from Ms. Demsey again directing Appellant not to contact her client and also stating that any other contact would be considered harassment.[6] Appellant responded by stating, "Don't threaten me Ms. Demsey, the Bar Association might not take kindly to it. It also might be interested to learn that you are standing in the way of a woman from getting paperwork necessary to obtain a job and enroll her child in kindergarten."[7] Ms. Demsey forwarded the email to Kathleen Jennings, the State Prosecutor ("Ms. Jennings"), and Appellant was subsequently terminated.

Appellant filed a claim for unemployment benefits, but the Claims Deputy found that Appellant was discharged for just cause. On February 25, 2013, Appellant timely appealed the decision of the Claims Deputy and a hearing was held before the Appeals Referee on March 12, 2013. Brian Cross ("Mr. Cross"), a retired Wilmington Police Department detective, and Felice Kerr ("Ms. Kerr"), the attorney who represented Appellant's friend, appeared as witnesses on behalf of Appellant. Diane Haase ("Ms. Haase"), the Human Resources Manager, appeared as a witness on behalf of the DOJ.

The DOJ submitted its own policy in addition to the State's Acceptable Use Policy. Section 10.6 of the DOJ's policy, entitled "Ethics in Public Service, " listed several ethical standards to which DOJ employees were expected to adhere, including "[r]espect[ing] the right and opinions of others" and "[a]void[ing] taking any action which may create an appearance of impropriety."[8] Section 10.8 required attorneys to notify their Division Head in writing prior to accusing another attorney of or reporting unethical conduct.[9] Section 13.3 required all employees to read and acknowledge the Acceptable Use Policy. Section 13.3(a) governed the use of e-mail and provided that "[e]lectronic mail systems are to be used for official, authorized, and ethical activities which are in the best interest of the Department of Justice and the State of Delaware." It also provided that "[e]lectronic mail is not to be used for general personal use" and that the "basic standards for using email are common sense, common decency, and civility."[10]

The Acceptable Use Policy states that users were to never use State systems (such as the Intranet or Internet) to engage that are unlawful, ...


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