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Burke v. Child, Inc.

Superior Court of Delaware

November 20, 2017

SHARRON BURKE, Appellant,
v.
CHILD, INC. and UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellees.

          Date Submitted: August 7, 2017

         Upon Consideration of Appeal from the Unemployment Insurance Appeal Board.

          ORDER

          Charles E. Butler, Judge

         This 20th day of November, 2017, upon consideration of the pro se appeal of Sharron Burke ("Ms. Burke") from the decision of the Unemployment Insurance Appeal Board (the "Board") and the record in this case, it appears to the Court that:

         1. Ms. Burke was employed part-time as a Family Visitation Center Counselor by CHILD, Inc. ("Employer") from August 2015 to January 20, 2017.

         2. Employer terminated Ms. Burke on January 20, 2017, after discovering that she had posted harassing and threatening comments about her coworkers on her public Facebook page[1] in violation of Employer's various policies, including its Workplace Violence policy.[2]

         3. After her termination, Ms. Burke filed a claim for unemployment benefits with the Division of Unemployment. On February 9, 2017, a Claims Deputy issued a Notice of Determination finding that Ms. Burke was discharged for just cause in connection with her work and was therefore disqualified from receiving unemployment benefits pursuant to 19 Del. C. § 3314(2) ("Section 3314(2)").[3] On February 14, 2017, Ms. Burke timely appealed the Claims Deputy's determination to an Appeals Referee.

         4. The Appeals Referee held a de novo hearing on February 27, 2017. On March 2, 2017, the Appeals Referee affirmed the Claims Deputy's determination that Ms. Burke was discharged for just cause and disqualified from receiving unemployment benefits pursuant to Section 3314(2).[4] Specifically, the Appeals Referee found that Ms. Burke agreed to abide by Employer's policies and that by connecting her public Facebook posts to news organizations, Ms. Burke violated Employer's policy relating to "Contact with News Media." The Appeals Referee also found that Ms. Burke's conduct amounted to willful insubordination in violation of Employer's expected standard of conduct. Ms. Burke timely appealed the Appeals Referee's decision to the Board on March 6, 2017.

         5. The Board held a hearing on March 22, 2017. Both Ms. Burke and a representative for Employer attended the hearing. The Board considered the evidence previously presented to the Appeals Referee and the Referee's decision and both sides were given the opportunity to present additional relevant evidence and legal argument as to why the Appeals Referee's decision should be upheld or reversed. On April 24, 2017, the Board affirmed the Appeals Referee's decision.[5]The Board found that Ms. Burke "acted willfully and wantonly in violation of the Employer's interest when she violated the Employer's Workplace Violence policy by posting harassing and threatening comments about her coworkers to Facebook."[6] As a result, the Board found that Ms. Burke was terminated for just cause in connection with her work and disqualified from receiving unemployment benefits pursuant to Section 3314(2).

         6. Ms. Burke timely appealed the Board's decision to this Court. In her Notice of Appeal, Ms. Burke provides the following as grounds for the appeal: (1) Ms. Burke "did not violate company policy on violence and harassment;" (2) "I never stated my coworkers need a good ass whoopin;" (3) the Board "did not review claim thoroughly;" and (4) "I never stated anything containing 'I will do harm' or 'I will do this' or made racial slurs."

         7. This Court's review of Ms. Burke's appeal is limited to a review for errors of law and a determination of whether "substantial evidence exists to support the Board's findings of fact and conclusions of law."[7] "Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion."[8] In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below.[9] The Board's decision is reviewed de novo for errors of law.[10] In the absence of legal error, the Board's decision is reviewed for abuse of discretion.[11] The Court will find an abuse of discretion when the Board "exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice."[12] On appeal, the Court will not "weigh the evidence, determine questions of credibility, or make its own factual findings."[13]

         8. An employee who is discharged for "just cause" is disqualified from receiving unemployment insurance benefits."[14] "Just cause" exists when an employee commits a "willful or wanton act or pattern of conduct in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct."[15] "Willful" conduct is conduct that "implies actual, specific, or evil intent, " and "wanton" conduct is conduct that "is heedless, malicious, or reckless, but not done with actual intent to cause harm."[16] A single incident of misconduct can establish just cause for termination.[17] For example, a single incident of "insubordination, theft, violence or threats of violence, and other activities where the employee acts with reckless disregard for the employer's interest" can be sufficient to establish just cause.[18]

         9. There is substantial evidence in the record to support the Board's conclusion, including the following: (1) the Employer's Personnel Policies Manual containing, inter alia, the policy against Workplace Violence; (2) Ms. Burke's signed Employee Acknowledgment dated September 20, 2015, stating that she received, understood, and was willing to adhere to the policies within the Manual; and (3) Ms. Burke's own Facebook posts. All of this evidence was submitted to and considered by the Board in reaching its decision.[19]

         10. The Court also notes that in her Opening Brief, Ms. Burke contends that the Claims Deputy, the Appeals Referee, and the Board erred "by denying me both a right to ask questions during hearings, and not reviewing my supporting documents thoroughly." After careful review of the record, the Court finds this contention to be without ...


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