                                   SUPERIOR COURT
                                       OF THE
                                 STATE OF DELAWARE

RICHARD F. STOKES                                      SUSSEX COU NTY C OUR THO USE
                JUDGE                                         1 THE CIRCLE, SUITE 2
                                                              GEORGETOWN, DE 19947
                                                            TELEPHONE (302) 856-5264



Jean Ricot Bozier, pro se                          Barry M. Willoughby, Esquire
27007 Seaford Road                                 Lauren E.M. Russell, Esquire
Seaford, Delaware 19973                            1000 North King Street
                                                   Wilmington, Delaware 19801


      RE:   Jean Ricot Bozier v. Mountaire Farms & Unemployment Insurance
            Appeal Bd.
            C.A. No. S14A-02-004 RFS

                            Date Submitted: July 21, 2014
                            Date Decided: August 7, 2014

Dear Parties:

      Before the Court is the appeal of Jean Ricot Bozier (“Bozier”) of a decision

rendered against him by the Unemployment Insurance Appeal Board (the “Board”)

cancelling his unemployment benefits due to his termination from his former

employer Mountaire Farms, Inc. (“Mountaire”). For the reasons explained below, the

Board’s decision is AFFIRMED.


                    FACTS & PROCEDURAL BACKGROUND

      Mountaire hired Bozier on April 19, 2013 as a day-shift general laborer, and
terminated him three days later for an unexcused absence on April 22, 2013.1

       The day Bozier was hired, April 19, 2013, he signed-off on, received copies of

and attended an orientation explaining Mountaire’s company policies and procedure.

The Court specifically looks to Mountaire’s policy and procedure regarding absences

under the “No-Fault Policy” (the “Policy”).2 Pursuant to the Policy, the following

absences are excused:

       Vacation - (which has been pre-approved)
       Military leave including reasonable travel time to and from assignment
       Jury duty and other legal proceedings for which a subpoena has been
       issued.
       Note: Legal proceedings for charges against the employee, jail time,
       DUI classes, meetings with attorneys, appointment with Probation
       Officer, custody hearings are not considered excused absences.
       Bereavement leave in according with Bereavement leave policy.
       Days of partial days when no work is available.
       Workers compensation with appropriate documentation.
       Approved personal (up to 30 days) or medical leaves in accordance
       withpolicy.
       Layoff
       Immigration reporting including reasonable travel time to and from
       location.
       Approved religious observances.
       Note: documentation on observances must be updated annually by the
       employee and approved by Human Resources.
       Absences not included in the list above are considered “unexcused



       1
        The facts are reflected in the transcripts filed in the appeal. The Board adopted the
Referee’s findings of fact and conclusions of law that are described in the opinion.
       2
           R. at 15.

                                                2
      absences” and will be counted as attendance infractions.3

      Furthermore, the Policy states an employee will be discharged for one

unexcused absence during the first 15 days of employment. The Policy also states the

employee should contact the Human Resources Department in the case of tardiness

or any other absence not mentioned in the list above. The phone number of the

department is provided in the paperwork. In determining whether an employee’s

absence is unexcused, Mountaire considers if the absence complied with the excused

list, whether there was notification to the employer and the frequency of the absences

“rather than [the] reason for [the] occurrence.” 4

      On April 22, 2013, which was Bozier’s first scheduled day of work, he claims

to have been stopped by the police and thus late for his shift. What occurred

subsequently has been in dispute between Bozier and Mountaire. Bozier claims he

called Mountaire, and personally spoke to an individual who told him to report to

work after the traffic stop. He further alleges that once he arrived at Mountaire, he

was turned away by security. However, Mountaire claims that Bozier never called,

which is corroborated by business records including call logs from April 22, 2013.

The phone number he would have called is also operated by an automatic system, so


      3
          R. at 13.
      4
          Id.

                                           3
Bozier would not have been able to carry-out the conversation he claims to have had.

In addition, Bozier did not have his paperwork with him and thus did not have access

to the phone number. Moreover, Mountaire explains that Bozier would not have been

turned away at the gate, but would have been directed to the Human Resources

building adjacent to the security gate. As a newly hired employee, he would have

been processed through the Human Resources Department to receive an ID card and

equipment. Bozier was fired for violating Mountaire’s Policy.

      On September 29, 2013, Bozier filed a claim for benefits with the Delaware

Department of Labor. His claim was denied by a Claims Deputy on October 22,

2013, pursuant to 19 Del. C. § 3314 (2). The denial was based on the Claims

Deputy’s determination that Mountaire fired Bozier for just cause. Bozier appealed

the denial on October 29, 2013.

      A hearing was held before an Appeals Referee on November 25, 2013. Both

parties testified, and the Appeals Referee accepted Mountaire’s version of the facts

and found that Bozier’s testimony was not credible. As a result, the Appeals Referee

affirmed the Claims Deputy’s decision.

      On December 13, 2013, Bozier filed an appeal with the Board of the Appeals




                                         4
Referee’s decision.5 The Board scheduled a hearing for February 5, 2014, where

Bozier provided additional testimony. In adopting the Appeals Referee’s factual

determinations, the Board affirmed the Claims Deputy’s denial in its opinion on

February 12, 2014.

       Bozier filed a Notice of Appeal on February 18, 2014 in this Court, seeking

reversal of the Board’s decision. Bozier contests the determination that he did not call

and did not appear at Mountaire on April 22, 2013 and consequently violated the

Policy.

                                 STANDARD OF REVIEW

       In affirming the Appeals Referee’s decision, the Board adopted the factual

findings the Appeals Referee made. This Court will review the Appeals Referee’s

findings of fact and conclusions of law and will be bound by those findings of fact

in the absence of fraud and if supported by the evidence.6 It is not within this Court’s

province to evaluate evidence, decide credibility issues or determine factual




       5
         Although Mountaire suggests Bozier’s initial appeal to the Board was filed late, this
point was not presented below and will not be entertained at this phase of the litigation. See
Estiverne v. Unemployment Ins. Appeal Bd., 2014 WL 2528540, at *2 (Del. Super. May 23,
2014) (“[U]nder 19 Del. C. § 3220, the Board may act sua sponte and consider the merits of a
procedurally barred appeal.”).
       6
           Boughton v. Dep’t. Of Labor, 300 A.2d 25, 26 (Del. Super. 1972).

                                                5
questions.7 When reviewing the factual determinations of the Board, the Court is to

“consider the record in the light most favorable to the party prevailing below.”8 In

this case, that is Mountaire. The requisite degree of evidence is only “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” 9



        The test is if the evidence adequately supports the agency’s factual findings and

is legally correct.10

                                          DISCUSSION

                                       Parties’ Contentions

        Bozier argues that he was late for his first day of work due to an unforeseen

police stop. Bozier contends he called Mountaire to notify them he would be late and

was told to come in anyway without issue, but that once he did arrive, he was turned

away.

        The Board found that although Bozier’s circumstances may have been

unfortunate, there is no record establishing Bozier came to work nor that he called to


        7
             Pochavatilla v. U.S. Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9,1997).
        8
            Id.
        9
        Short v. Mountaire Farms and Unemployment Ins. Appeal Bd., 2013 WL 5492576, at *2
(Del. Super. Sept. 25, 2013).
        10
             29 Del.C. § 10142

                                                  6
notify Human Resources of his tardiness. Therefore, his termination was for just

cause because this conduct violates the Policy.

                                     Analysis

      In review of the factual dispute as to what actually occurred the morning of

April 22nd, 2013, this Court relies on the factual determinations of the Board. Based

upon the record, the Court finds substantial evidence that supports the Appeals

Referee’s findings of fact adopted by the Board that were adverse to Bozier. The

Policy and business records were admitted into evidence. Bozier knew a one day

absence would result in termination in the first 15 days of employment. His

explanations could rationally be rejected. He did not have the paperwork and

therefore did not have the Human Resources number. The call would have been

processed through an automated system, rather than a personal connection. The

absence of a call is reflected by Mountaire’s standard records including logs and

internal documents. The policy of Mountaire is to process all newly-hired employees

and to direct them to Human Resources even if late on the first day of a job.

Reasonable reliance can be made on the business records and policies and Bozier’s

admitting that he did not have the phone number with him.

      With this evidential support, Bozier’s termination was for just cause and he




                                         7
is therefore disqualified from the receipt of unemployment benefits. Title 19,

Section 3314 of the Delaware Code states in pertinent part:


                “[a]n employee is ineligible to receive unemployment benefits
                if he or she has been terminated for just cause. The term ‘just
                cause’ denotes a wilful or wanton act in violation of either the
                employer’s interest, or the employee’s expected standard of
                conduct. Willful or wanton conduct is ‘that which is evidenced
                by either conscious action, or reckless indifference leading to a
                deviation from established and acceptable workplace
                performance.’ In a termination case, the employer has the
                burden of proving just cause.” 11
      Additionally, although Bozier never explicitly states he did not intentionally

violate the Policy, the Court infers this is what he seeks to express. From his

perspective, Bozier argues that although he was indeed late for his shift, this

conduct was unintentional because he was pulled over by the police. In his

statement to the Delaware Department of Labor, Bozier claimed “I could not help

it, the police stopped me.”12 Mountaire offers no argument to counter that Bozier

acted intentionally or recklessly. However, Mountaire does argue to the Court that

pursuant to the Policy, one unexcused absence within the 15-day period will result

in termination. The Policy does not mention intent, but is instead “based on

occurrences and is a ‘no fault’ policy based on frequency rather than reason for


      11
           19 Del. C. § 3314 (II)(b).
      12
           R. at 2.

                                            8
occurrence.” 13 The Court therefore finds that under the Policy, Bozier’s intent is

irrelevant in finding he violated the Policy.


      The Court finds that Bozier’s absence was unexcused under the Policy.

The Policy explicitly states that a missed day of work within the first 15 days of

employment is treated with termination. Bozier’s absence does not fit within the

list of excused absences, and although Bozier argues the circumstances were out

of his control, the Board found he did not report for his first day of work. The

Court is not free to second-guess assessments of credibility.


      In any event, the Policy is based on the occurrence alone and not the reason

for it.14 Moreover, Mountaire’s records make it clear Bozier never called human

resources as required by the Policy. The Policy makes it explicit that “employees

are responsible for their attendance record and ensuring that they notify the proper

Department each day of an absence.” 15 The Policy regarding unexcused absences

and notification is unequivocal and Bozier failed to comply with the Policy.




      13
           R. at 13.
      14
           R. at 13.
      15
           R. at 16.

                                          9
      Under Delaware law, “violation of a reasonable company rule may

constitute just cause for discharge if the employee is aware of the policy and the

possible subsequent termination.”16 The employee’s “knowledge of a company

policy may be established by evidence of a written policy, such as an employer’s

handbook or by previous warning of objectionable conduct.”17 Bozier had copies

of, signed-off on and attended an orientation explaining the Policy. Bozier does

not contend that he was uninformed of such a Policy and as such, the Court finds

that Bozier was aware of the Policy. Further, although neither party speaks to the

reasonableness of the Policy, the Court finds it was reasonable.


                                      CONCLUSION

      Base on the aforementioned, the Board’s decision is AFFIRMED.

      IT IS SO ORDERED.

                                                  Very truly yours,

                                                  /s/ Richard F. Stokes

                                                  Richard F. Stokes

Cc: Prothonotary
    Judicial Case manager
    Catherine C. Damavandi, Esq.

      16
           Wisley, 2014 WL 2528540, at *2.
      17
           Id. (citations omitted).

                                             10
Delaware Department of Justice
820 North French Street, 6th Floor
Wilmington, DE 19801




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