Christa L. SMOOT, Appellant, v. COMCAST CABLEVISION and Unemployment Insurance Appeal Board, Appellee No. Civ.A. 04A05003 WLW Superior Court of Delaware Submitted August 30, 2004 Decided November 16, 2004 Upon Appeal from a Decision of the Unemployment Insurance Appeal Board. Affirmed. Counsel Christa L. Smoot, pro se. William M. Kelleher, of Ballard Spahr Andrews & Ingersoll, LLP, Wilmington, Delaware, for Comcast Cablevision. Mary Page Bailey, of the Department of Justice, Wilmington, Delaware, for the Unemployment Insurance Appeal Board. Witham Jr., William L.,, Judge ORDER *1 The appellant, Christa L. Smoot, appeals from a decision of the Unemployment Insurance Appeal Board, (the “Board”), affirming an Appeals Referee's finding that Appellant was terminated for just cause by her employer, Comcast of Delmarva, Inc. (“Comcast”), and therefore was disqualified from the receipt of unemployment benefits. For the reasons which follow, the Board's decision is affirmed. FACTS Appellant's employer, Comcast of Delmarva, Inc., terminated Appellant's employment on January 14, 2004 for misuse of company property and other violations of company policy that occurred when Appellant used her company laptop to carry out a sexually explicit electronic conversation with her co-workers. Appellant was employed by Comcast of Delmarva, Inc. as a customer service representative on May 17, 1999 and was later transferred to the position of addressability and pay-per-view coordinator. On January 3, 2004, Appellant engaged in a four-hour “instant message” conversation with two of her co-workers on her company laptop. The conversation included numerous sexual references and allusions as well as racially derogatory remarks and instances of profanity. Comcast terminated Appellant's employment for violating Comcast's company policies prohibiting use of inappropriate and offensive language. These policies are stated in Comcast's employee handbook which lists as misconduct any “abuse of, or misuse of property belonging to Comcast, ... obscene conduct ... [i]nappropriate off-duty conduct ... [and] misuse of Company resources, including, but not limited to, e-mail, Internet, telephone and/or voice-mail.” The handbook contains specific guidelines for use of Comcast's electronic communications systems in its Electronic Security Policy (“ESP”). The ESP prohibits the use of any of the company's electronic communication systems “to receive or transmit indecent, obscene, profane, sexually explicit, racially derogatory, threatening or otherwise offensive or inappropriate language.” The Employee Handbook notifies the employees that engaging in such misconduct may result in “discipline, up to and including termination of employment.” Comcast's Information Security Guidelines (“ISG”), which were in effect before the handbook was recently updated, also prohibit transmitting “objectionable language or content” when using Comcast's Information Technologies. The ISG likewise warn employees that violations of the policies may “result in disciplinary action, up to and including termination of employment.” As a result of Appellant's electronic conversation, Comcast terminated Appellant's employment on January 14, 2004. The company also disciplined the other two individuals involved in the conversation. Comcast refused any continued employment to the individual primarily involved in the conversation who at that time was only temporarily employed by Comcast. The third individual received a lesser punishment in the form of a final written warning and three-day suspension because Comcast determined that the employee had not initiated the conversation and appeared to have attempted to extricate himself from the conversation. *2 Appellant filed for unemployment benefits on or about January 21, 2004. After a hearing, the Claims Deputy for the Department of Labor issued a decision on February 11, 2004 finding that Comcast had just cause for terminating Appellant's employment and therefore Appellant was not entitled to unemployment benefits. Appellant appealed the decision to an Appeals Referee on February 19, 2004. After a hearing on March 16, 2004, the Appeals Referee found that Appellant had transmitted “indecent, obscene, profane, sexually explicit, racially derogatory, and otherwise offensive and inappropriate language” via the company's laptop and held that Appellant's actions “rose to the level of willfulness or wantonness required to support just cause for her dismissal.”[1] The Referee consequently affirmed the Claims Deputy's decision and held that Appellant was disqualified from receiving unemployment benefits. Appellant then appealed to the Unemployment Insurance Appeal Board. The Board held a hearing on April 28, 2004 and affirmed the Referee's decision, concluding that Comcast had “produced competent probative evidence sufficient to sustain a finding that the claimant was discharged for just cause as a result of the electronic conversation she had with other employees on January 3, 2004.”[2] The Board accordingly also affirmed the Referee's decision that Appellant was therefore denied unemployment benefits. The Board found specifically that Appellant had violated the ESP which prohibited “the reception or transmission of ‘indecent, obscene, profane, sexually explicit ... or otherwise offensive or inappropriate language” ’ as well as the ISG which proscribed “objectionable language or content” in employee communications.”[3] The Board concluded that Comcast had provided sufficient evidence by producing a 24–page transcript of the electronic conversation and providing photocopies of Appellant's signed acknowledgment that she had received access to the company policies. The Board found further that “[t]he evidence shows that the claimant knew or should have known, in that she had a responsibility to know, that personal and sexually oriented electronic conversations could subject her to disciplinary action, including discharge.”[4] Appellant has now appealed the Board's decision under 19 Del. C. § 3323. PARTIES' CONTENTIONS Appellant Smoot does not deny that she engaged in the conversation on January 3, 2004, nor does she deny making the specific statements of which she is accused. Appellant also admits she had knowledge of and signed for Comcast's Information Security Guidelines. She contends, however, that she was unaware that her conduct was a misuse of company equipment or in violation of Comcast's company policies. Appellant claims she did not read the company's policies in the online handbook and would not have engaged in the conversation had she known it violated the policies. Appellant further contends that a number of factual errors exist in the Board's decision and in the record of the hearings. She also argues there are errors in the evidence presented by Comcast and that her treatment was unequal to the disciplinary measures meted out to the other employees involved in the conversation. *3 Comcast argues that Appellant was on notice of the company's policies and Comcast consequently had just cause to fire Appellant for violating the stated policies by engaging in a sexually explicit and racially derogatory electronic conversation while using a company laptop computer. Comcast contends that a copy of the company policies was made available to Appellant. In addition, Comcast submitted a form signed by Appellant which acknowledged that Appellant had reviewed the ISG on December 14, 2000. According to Comcast's records, Appellant also attended a training session on internet security policies on September 11, 2003, was given access to the company's updated online handbook on September 29, 2003 and signed that she had received such access on October 24, 2003. STANDARD OF REVIEW In reviewing an appeal from the Unemployment Insurance Appeal Board, this Court's role is limited to determining whether the Board's decision is supported by substantial evidence and is free from legal error.[5] Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[6] The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings .[7] It merely determines whether the evidence is legally adequate to support the administrative agency's factual findings.[8] DISCUSSION In its function as an appellate court, it is “not within the province of the Superior Court to weigh the evidence, determine questions of credibility or make its own factual findings.”[9] This court may not draw its own conclusions as to the credibility of particular witnesses or the factual circumstances surrounding this case. Consequently, the Court cannot address Appellant's claims that there are factual errors in the Board's findings or in Comcast's evidence. This Court's only consideration of the facts is to determine whether they are sufficient to support the Board's conclusion that Appellant was terminated for just cause. The Delaware Code states that “[a]n individual shall be disqualified for benefits ... [if] the individual was discharged from the individual's work for just cause in connection with the individual's work.”[10] The burden to prove that the employee was discharged for “just cause” is borne by the employer.[11] To establish “just cause,” the employer must show, by a preponderance of the evidence, that the employee's conduct rose to the level of wilful or wanton misconduct “in violation of either the employer's interest, the employee's duties, or the employee's expected standard of conduct.”[12] The Board found that Appellant's conduct rose to the level of wilful or wanton and that Appellant was fired for just cause. Wilful conduct “requires a showing that one was conscious of his conduct or recklessly indifferent of its consequences” but it “need not necessarily connote bad motive ... or malice.”[13] As is made evident in the record, Appellant's electronic conversation on January 3, 2004 contained profane, sexually explicit and racially derogatory language in violation of Comcast's company policies. The Board's decision found that the 24–page transcript of the conversation from the computer's hard drive as well as evidence that Appellant signed an acknowledgment that she had received access to the company's handbook was “competent probative evidence” sufficient for a finding for Comcast. The evidence also indicates that Appellant was aware of the policies and had attended additional training on the internet policies. This record evidence is adequate to support the Board's decision that Appellant's conduct was knowing and rose to the level of wilful misconduct. The evidence further supports the Board's conclusion that Appellant's employment was terminated for just cause. *4 The Board also affirmed the Appeals Referee's decision that Appellant was legitimately terminated for violating company policy without any prior warnings or discipline. An employee's violation of a company policy of which that employee is aware may create just cause for termination of employment.[14] In addition, an employer need not give multiple warnings before choosing to terminate employment.[15] As long as the company policy is clearly communicated to the employee, the employer has given adequate notice to justify termination of employment after a single violation of that policy.[16] There is sufficient evidence in the record to show that Appellant had knowledge of the company's stated policies. The record contains photocopies of Appellant's signed acknowledgments that she received access to the company's policies and she admitted she was familiar with the ISG. Because Appellant had notice of the company's policies it is irrelevant whether she read them or not. Appellant also contends that she was disciplined more harshly than the other individuals who took part in the conversation. The test for “just cause” for termination in this context does not include any consideration of the discipline other employees received. Appellants claim would fail in any event because the record shows that the other individuals were equally disciplined according to the roles they played in the conversation. The individual who participated most extensively in the conversation with Appellant was refused any further employment and thereby effectively terminated, just as Appellant was terminated. The individual who only received a three-day suspension and final written warning had, according to Comcast, attempted to extricate himself from the conversation and had not participated as heavily in the conversation as Appellant and the other employee. Therefore, this Court holds that the Board's decision was based on substantial evidence in the record and there is no evidence that the Board committed an error of law in affirming that Comcast validly terminated Appellant's employment for just cause. Accordingly, the Board's determination that Appellant was disqualified from receiving unemployment benefits was also proper.[17] The decision of the Unemployment Insurance Appeal Board is affirmed. IT IS SO ORDERED. Footnotes [1] Smoot v. Comcast, UIAB Appeal Docket No. 430292, at 3–4 (Mar. 23, 2004) (Referee's Decision), aff'g Decision of Claims Deputy (Feb. 11, 2004). [2] Smoot v. Comcast, UIAB Appeal Docket No. 430292, at 3 (May 10, 2004), aff'g Decision of Appeals Referee (Mar. 23, 2004). [3] Id. at 2. [4] Id. at 3. [5] Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239 (Del.Super.Ct.1979). [6] Oceanport Ind. V. Wilmington Stevedoes, 636 A.2d 892, 899 (Del.1994) (citing Olney v. Cooch, 425 A.2d 610, 614 (Del.1981); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.Ct.1986), app. dism. 515 A.2d 397 (Del.1986). [7] Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.1965). [8] See 29 Del. C. § 10142(d). [9] Unemployment Ins. Appeal Bd. v. Div. of Unemployment Ins., 803 A.2d 931, 937 (Del.2002). [10] 19 Del. C. § 3315(2) (now contained at 19 Del. C. § 3314(2)). [11] Pavusa v. Tipton Trucking Co., Inc., 1993 WL 562196, at *3 (Del.Super.). [12] Ross v. Zenith Products, 2004 WL 2087955, at *3 (Del.Super.) (citing Tuttle v. Mellon Bank of Delaware, 659 A.2d 786, 789 (Del.Super.Ct.1995). [13] Coleman v. Dept. of Labor, 288 A.2d 285, 288 (Del.Super.Ct.1972). [14] Fader v. Burris Foods, 1997 WL 366889, at *2 (Del.Super.) [15] Coleman, 288 A.2d at 288. “[T]he 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.” Id. [16] See Wilmington Sav. Fund. Soc'y v. Moeller, 1997 WL 719315, at *3 (Del.Super.). [17] 19 Del. C. § 3315(2) (now contained at 19 Del. C. § 3314(2)).