      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


BEACH BABIES CHILD CARE, INC.,              :
                                            :      C.A. No: K14A-06-009 RBY
                   Appellant,               :
                                            :
      v.                                    :
                                            :
JEREMY HURD, and THE                        :
UNEMPLOYMENT INSURANCE                      :
APPEALS BOARD,                              :
                                            :
                   Appellees.               :


                          Submitted: December 3, 2014
                           Decided: January 23, 2015


                Upon Consideration of Appellant’s Appeal from
                 the Unemployment Insurance Appeal Board
                               REMANDED

                            OPINION and ORDER


Richard E. Berl, Jr., Esquire, Berl & Feinberg, LLP, Lewes, Delaware for Appellant.

Jeremy Hurd, Pro se.

Paige J. Schmittinger, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware for The Unemployment Insurance Appeals Board.




Young, J.
Beach Babies Child Care, Inc. v. Hurd, et. al.
C.A. No.: K14A-06-009 RBY
January 23, 2015

                                       SUMMARY
       Beach Babies Child Care, Inc., (“Appellant”), appeals the decision of the
Unemployment Insurance Appeals Board (“the Board”) finding that Jeremy Hurd
(“Appellee”), was discharged without just cause; and, accordingly, is qualified to
receive unemployment benefits. Following an investigation into an alleged
incident involving a child in the Appellee’s care, Appellee was suspended and
ultimately fired for allegedly violating provisions of the employee handbook. The
Department of Labor (“the Department”) issued a decision disqualifying Appellee
from receiving benefits, finding he had been terminated for just cause. The
Appeals Referee reversed. On appeal, the Board affirmed the decision of the
Referee. This Court finds that the Board’s decision is deficient as to findings of
fact and conclusions of law, accordingly, the decision of the Board is
REMANDED in accordance with this opinion.
                      FACTS AND PROCEDURAL POSTURE
       Since the Board, after taking additional testimony of witnesses, affirmed the
Referee’s determination and adopted his factual findings as those of the Board, the
Court begins by restating the factual findings made by the Appeals Referee,
substantially in their entirety:
       [Appellee] was employed as an early Childhood teacher by [Appellant] from
       2001 through November 22, 2013. The [Appellee] was employed full-time
       at an hourly rate of $14.25. [Appellee] was doing a counting activity during
       circle time on November 19, 2013. Children were called into the middle of
       the circle to be counted. One of the children was lying in the middle of the
       circle. [Appellee] asked him to move to the outside of the circle so he would
       not get stepped on or trip other children. When the child would not move,

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

       [Appellee] pulled him by his legs and slid him to the outside of the circle.
       [Appellee] stated he wanted to move, not hurt or harm the child. The child
       told [Appellee] his back hurt. The next day, the child’s parent reported he
       had a rug burn on his back. [Appellant] said the parent said the child said
       [Appellee] was upset when he pulled him. [Appellant] investigated and
       reviewed video surveillance. [Appellant] contends [Appellee] pulled the
       child aggressively and then pushed him down and turned his head with his
       hands. [Appellant] suspended [Appellee] and reported the incident to the
       Delaware Department of Service for Children, Youth and Their Families for
       investigation. [Appellant] terminated Claimant on November 25, 2013, for
       inappropriate abusive or neglectful behavior in violation of its handbook.1

At its hearing, the Board accepted additional testimony, which it summarized as
follows:
       [Appellant’s] representative Tom Toner was sworn and testified that the
       incident causing [Appellee’s] termination was on video. A copy of the video
       was received into evidence as employer’s Exhibit 1, and played at the
       hearing.

       [Appellant’s] representative also testified that the mother of the child who
       was allegedly injured by the [Appellee] could not take off of work to testify.
       Therefore, a photo allegedly taken by the child’s mother to show the child’s
       physical harm was not received into evidence, because a proper evidentiary
       foundation could not be established. [Appellant’s] representative also
       testified that Appellant maintains a safe, warm educational environment,
       and [Appellant’s] reputation is based upon how [Appellant] takes care of
       children.

       [Appellee] was sworn and testified that on the day in question, he was left
       alone in a room with children. He stated that there should be one teacher for
       every 12 children. He explained that he had just cleaned up for breakfast


       1
           R. at 69-70.

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

       and was getting the children focused. He stated that a child was moved. He
       noted that he was not interviewed by DHSS (Division of Health and Social
       Services). He stated that he did not want the child to be harmed. In the
       morning, the [Appellant] did not check the child’s back. He also recalled the
       child did not cry that he was harmed or hurt.

       [Appellant’s] witness Latisha Lewis was sworn and testified that later in the
       video, the child comes back to the [Appellee] and points to his back, as
       though his back hurt.2
       Both the Appeals Referee and the Board ultimately concluded that Appellee
was not terminated for just cause, finding that he was, therefore, entitled to receive
unemployment benefits. The Appeals Referee found that Appellant “failed to
establish the content of the policy [Appellee] is alleged to have violated.”3 In
affirming the Appeals Referee, the Board stated, “[t]he [video] recording shows
that [Appellee] moved the child during circle time. However, the recording does
not establish by a preponderance of the evidence that the child was injured (e.g.,
received a rug burn) by the [Appellee’s] actions.”4 After briefly explaining their
rational for excluding photographic evidence of alleged physical injury to the
child – classifying it as hearsay statements – the Board went on to conclude, “[a]s
a result, there is no conclusive evidence in the record that [Appellee] physically
injured a child during circle time on November 19, 2013.”5


       2
           R. at 107-08.
       3
           R. at 71.
       4
           R. at 109.
       5
           Id.

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Beach Babies Child Care, Inc. v. Hurd, et. al.
C.A. No.: K14A-06-009 RBY
January 23, 2015

       Appellant now urges this Court to reverse the Board, claiming: (1) the
Board committed legal error in their classification and interpretation of the
evidence; and (2) the Board’s decision was not supported by substantial evidence
and was both arbitrary and capricious.
                               STANDARD OF REVIEW
       For administrative board appeals, this Court is limited to reviewing whether
the Board’s decision is supported by substantial evidence and free from legal
errors.6 Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”7 It is “more than a
scintilla, but less than preponderance of the evidence.”8 An abuse of discretion
will be found if the board “acts arbitrarily or capaciously...exceeds the bounds of
reason in view of the circumstances and has ignored recognized rules of law or
practice so as to produce injustice.”9 Accordingly, “if the record clearly indicates
that the administrative agency made its decision on improper or inadequate
grounds, discretion has been abused and reversal upon judicial review is




       6
           29 Del. C. § 10142(d); Avon Prods. v. Lamparski, 203 A.2d 559, 560 (Del. 1972).
       7
           Majaya v. Sojourners' Place, 2003 WL 21350542, at *4 (Del. Super. June 6, 2003).
       8
           Id. (quoting Cross v. Calfano, 475 F.Supp. 896, 898 (M.D. Fla. 1979)).
       9
         Delaware Transit Corp. v. Roane, 2011 WL 3793450, at *5 (Del. Super. Aug. 24, 2011)
(quoting Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at *2 (Del. Super. Apr. 30,
2009)).

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

required.” 10 In review of the Boards decision, the Court does not weigh evidence,
determine questions of credibility, or make its own factual findings.11 Where an
agency has interpreted and applied a statute, the court’s review is de novo.12 In the
absence of an error of law, lack of substantial evidence or abuse of discretion, the
Court will not disturb the decision of the board.13
                                      DISCUSSION
       The Board affirmed the decision of the Appeals Referee pursuant to 19 Del.
C. § 3320(a), finding that no error had been committed in the Referee’s
determination. The Referee’s decision was based upon 19 Del. C . § 3314(2),
which states in relevant part that an individual shall be disqualified for
unemployment benefits, “for the week in which the individual was discharged
from the individual's work for just cause in connection with the individual’s
work...”14 This Court has explained:
       [i]n a [discharge] situation, the employer has the burden of proving just
       cause. Employee performance and conduct is highly relevant in assessing
       just cause. Absent evidence to the contrary, an employer necessarily sets
       the standard for acceptable workplace conduct and performance. Just cause


       10
          Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 652 (Del. Super. 1973)
(citing Securities & Exchange Commission v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1575, 91
L.Ed. 1995 (1947)).
       11
            Id.
       12
            Lehman Brothers Bank v. State Bank Commissioner, 937 A.2d 95, 102 (Del. 2007).
       13
            Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998).
       14
            19 Del. C. § 3314(2).

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

       refers to a wilful or wanton act in violation of either the employer's interest,
       or of the employee's duties, or of the employee's expected standard of
       conduct.15
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; it is unnecessary that it be founded in bad motive or
malice.16
       Therefore, “[v]iolations of a reasonable company rule may constitute just
cause for discharge if the employee is aware of the policy and the possible
subsequent termination.”17 The employer need not demonstrate a recurring
offense; rather, “[j]ust cause can result from an isolated act by an employee that
shows contempt for the acceptable procedures of the employer.”18 This Court uses
a two-step test to evaluate whether a violation of an alleged policy would justify a
just cause discharge: “1) whether a policy existed, and if so, what conduct was
prohibited, and 2) whether the employee was apprised of the policy, and if so, how



       15
          MRPC Fin. Mgmt. LLC v. Carter, 2003 WL 21517977, at *4 (Del. Super. June 20,
2003) (internal citations and quotations omitted).
       16
         Still v. Burris Logistics, 2011 WL 4135123, at *1 (Del. Super. May 5, 2011) (citations
omitted); Coleman v. Department of Labor, 288 A.2d 285, 288 (Del. Super. 1972).
       17
         Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. July
27, 2011) (citing McCoy v. Occidental Chem. Corp., 1996 WL 111126, at *3 (Del. Super.
1996)).
       18
         Edgemoor Cmty. Ctr. v. Black, 2011 WL 7457651, at *3 (Del. Super. Oct. 25, 2011)
(citing Mergliano v. Unemployment Ins. Appeal Bd., 2009 WL 3069676, *2 (Del. Super. Sept.16,
2009).

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

was he made aware.”19 Enforceable notice may be established by, “evidence of a
written policy, such as an employees’ handbook or by previous warnings of
objectionable conduct.”20 Finally, “any decision by the Board that a claimant was
discharged without just cause must be based on findings of fact and conclusions of
law adequate to support such a decision. A Board's determination that a claimant
was discharged without just cause is deficient where it does not address the
allegations culminating in and the evidence supporting the discharge.21
       In addition to the evidence presented to the Appeals Referee, the Board
heard testimony from Appellant’s representative Tom Toner, Latisha Lewis and
the Appellee. Tom Toner testified that the incident causing Appellee’s termination
was on the video, which was admitted into evidence as Exhibit one.22 He further
testified that Appellant, as a matter of course, maintains a safe, warm educational
environment, and that Appellant’s reputation is based upon how Appellant takes
care of children.23 He testified that the Appellee’s actions were contrary to the
company’s policies which the Appellee had signed off on in 2001, 2008 and
2011.24 The Appellee testified that he did not intend to hurt the child, and the child

       19
            Id.
       20
            Wilson, 2011 WL 3243366, at *2.
       21
            Edgemoor Cmty. Ctr., 2011 WL 7457651, at *3 (internal citations and quotations
omitted).
       22
            R. at 94.
       23
            R. at 96.
       24
            R. at 97.

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

showed no apparent signs of injury. 25 The Board did not admit or consider a
photograph, which the Appellant claims was proof the child was injured, because
the child’s mother was not there to lay a proper foundation.26
       Based on this evidence, the Board found that Appellant failed to establish
by a preponderance of the evidence that the child was injured by the Appellee’s
actions.27 Because there was no conclusive evidence that the Appellee injured the
child, the Board determined the Appellant was discharged from his employment
without just cause.28
       The Board’s findings, however, are legally flawed. The proper legal
standard does not turn on whether or not the child was injured. Rather, the issue is
whether or not the Appellee’s conduct was “reckless[ly] indifferen[t] leading to a
deviation from established and acceptable workplace performance...”29
       In Edgemoor Cmty. Ctr. v. Black, a similar case, this Court concluded the
Board’s decision, that a childcare provider’s termination was not based on just
cause, constituted legal error because it did not take into consideration the
childcare provider’s behavior pursuant to the employer’s standards.30 In making its


       25
            R. at 98-100.
       26
            R. at 107.
       27
            R. at 109.
       28
            Id.
       29
            MRPC Fin. Mgmt. LLC, 2003 WL 21517977, at *4.
       30
            Edgemoor Cmty. Ctr., 2011 WL 7457651, at *3.

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Beach Babies Child Care, Inc. v. Hurd, et. al.
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January 23, 2015

determination, the Court noted that the Board’s decision “did not discuss any
interest, duty, or standard of conduct of the [employer] in relation to [the childcare
provider’s] conduct.”31 Instead, the Board made its determination that the
employer did not meet its burden of persuasion without any discussion of what it
is that the employer needed to show.32 Finally, the Court noted, “[w]ithout a
comparison of [the childcare provider’s] conduct to the [employer’s] standards ...
there can be no legally sufficient decision regarding whether the [employer] had
just cause to terminate [the child care provider].”33
       Because the Board’s focus was almost exclusively on whether or not the
child was injured, and not Appellee’s actual conduct compared to Appellant’s
established standards, the Board committed legal error. Again, the proper legal
analysis involves a two part test, (1) whether a policy existed, and if so, what
conduct was prohibited, and (2) whether the employee was apprised of the policy,
and if so, how was he made aware. Similar to Edgemoor Cmty. Ctr, the Court
finds that the Board’s decision is deficient as to findings of fact and conclusions of
law regarding whether Appellee’s conduct – pulling a child by the feet, pushing
him down, and moving his head – was recklessly indifferent, leading to a
deviation from Appellant’s established and acceptable workplace performance.
Accordingly, the decision of the Board is REMANDED in accordance with this


       31
            Id.
       32
            Id.
       33
            Id.

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Beach Babies Child Care, Inc. v. Hurd, et. al.
C.A. No.: K14A-06-009 RBY
January 23, 2015

opinion.
       IT IS SO ORDERED.
                                                  /s/ Robert B. Young
                                                             J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Jeremy Hurd, Pro se
     Opinion Distribution
     File




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