Submitted: March 12, 2014
Richard F. Stokes, Judge
Dear Ms. McDaniel and Mr. Primos,
Before the Court is the appeal of Colleen McDaniel ("McDaniel") of a decision rendered against her by the Unemployment Insurance Appeal Board (the "Board") regarding her termination by her former employer, God's Way to Recovery, Inc. ("GWTR"). For the reasons explained below, the Board's decision is AFFIRMED.
FACTS & PROCEDURAL BACKGROUND
McDaniel was employed by GWTR from April 18, 2010 until her termination on April 29, 2013. At the time of her termination, McDaniel served as a full-time manager of GWTR's retail store in Georgetown, DE. She earned $13.00 per hour.
Subsequent to her termination, McDaniel filed for unemployment insurance benefits with the Delaware Department of Labor's Division of Unemployment Insurance. The Claims Deputy/Agency Representative for the Division found that GWTR met its burden of showing just cause for McDaniel's discharge, and therefore found her disqualified from receiving unemployment insurance benefits.
McDaniel filed a timely appeal to an Appeals Referee. The Appeals Referee found as matters of fact that McDaniel had been discharged from employment with GWTR for theft, absenteeism, and violation of company policy. Specifically, GWTR claimed that McDaniel sold GWTR's scrap metal to a scrap yard and pocketed the money, and gave away GWTR's merchandise to a friend, McDaniel stole a television and personnel files belonging to GWTR after her termination, and McDaniel frequently missed work or did not work her full shift.
These accusations were based on reports from other GWTR employees, primarily Cinthia Ortega ("Ortega"), who worked with McDaniel in the Georgetown store and, allegedly, covered for McDaniel when McDaniel was not present at the store during work hours. There was also an anonymous letter postdated on April 22, 2013 and addressed to Carrie Wood ("Wood"), the co-owner of GWTR, which accused McDaniel of giving away free or discounted merchandise to owners of a Mexican restaurant in exchange for free liquor at the restaurant.
Before the Appeals Referee, McDaniel denied all of these allegations, except the incident involving the scrap metal. She claimed that she disposed of the metal because she was told that the Georgetown store's warehouse was in disarray, and because she used her personal vehicle to do so, she kept the proceeds to reimburse herself for the fuel cost of the trip. She also claimed that GWTR did not have a policy regarding the disposition of scrap metal.
The Appeals Referee concluded as matters of law that GWTR's only evidence of McDaniel's supposed theft from the Georgetown store and warehouse and impermissible absenteeism was conjecture, mere suspicion, hearsay statements, and the uncorroborated testimony of Ortega, who admitted to lying about the same events. Regarding McDaniel's supposed violation of a company policy, GWTR pointed to no such policy. Thus, the Appeals Referee held that GWTR failed to establish by a preponderance of credible evidence that McDaniel was terminated for just cause, and therefore reversed the Claims Deputy/Agency Representative's decision and found McDaniel not disqualified from receiving unemployment insurance benefits.
GWTR filed a timely appeal to the Board. In its opinion, the Board summarized the additional evidence presented before it, which included a copy of GWTR's employment policy. GWTR claimed that the scrap metal incident violated an earlier version of the policy. McDaniel testified that she was told at the time of her discharge that she was being terminated for selling scrap metal and leaving work early. She believed that she was authorized to dispose of the scrap due to a warning directing her to tidy up the Georgetown store's warehouse. McDaniel understood that the scrap was the property of GWTR, but believed that she was disposing of junk. McDaniel further believed that she could keep the proceeds from the sale because she used her personal vehicle to transport the scrap and the funds from the sale were de minimus ($7–8). On cross-examination, she admitted that she never reported the sale of the scrap metal to her employer, and that she delivered, among other things, the proceeds from the scrap's sale to a police officer investigating complaints made by GWTR. McDaniel called a witness who, under GWTR's employ, would go to GWTR's various stores and perform evaluations. This person stated, among other things, that all of GWTR's stores had issues involving scrap metal, that GWTR had no consistent policy for dealing with the scrap, and that in her experience, most stores have the scrap picked up and brought to GWTR's Milford store for disposal.
The Board stated that GWTR claimed that McDaniel was terminated for violating its employment policies regarding theft and absenteeism. The Board was satisfied that GWTR met its burden in establishing the existence of these policies and McDani el's knowledge of these policies because GWTR presented two written policy manuals, which McDaniel had signed. Therefore, the sole question before the Board was whether a violation of these policies occurred.
The Board stated that GWTR's decision to terminate McDaniel seemed to be based on four separate bases: (1) her alleged absenteeism; (2) her alleged gifting of merchantable store items to her friend; (3) her alleged theft of a television and personnel files that belonged to GWTR; and (4) her alleged theft of GWTR's scrap metal. The Board concluded that GWTR's evidence as to the first, second, and third bases was irrelevant because none of these incidents formed any basis for McDaniel's termination. Wood testified that she was unaware of the issues relating to McDaniel's absenteeism and gifting of salable merchandise at the time of firing McDaniel. Additionally, the theft of the television ...