                                  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



Raylena Moss, pro se                         Mountaire Farms
1007 Cecil Street,                           P.O. Box 710
Salisbury, MD 21804                          Selbyville, DE 19975


      RE:     Raylena Moss v. Mountaire Farms and Unemployment Insurance
              Appeal Bd.,
              C.A. No. S14A-05-001-RFS

                           Date Submitted:   July 25, 2014
                           Date Decided:     September 29, 2014

Dear Parties:

      Before the Court is the appeal of Raylena Moss (“Moss”) of a decision

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

regarding her termination by her former employer, Mountaire Farms (“Mountaire”).

For the reasons explained below, the Board’s decision is AFFIRMED.

                        FACTS & PROCEDURAL BACKGROUND

      Moss was employed by Mountaire from July 27, 2012 until her termination on

December 10, 2013. During this time Moss worked as an associate in the washroom

department.



                                         1
      After her termination, Moss 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 Mountaire met its burden

of showing just cause for Moss’ discharge, and therefore found her disqualified from

receiving unemployment benefits.

      Moss filed a timely appeal to an Appeals Referee. The Appeals Referee agreed

with the Claims Deputy regarding Moss being discharged from her work with

Mountaire for violation of a company policy. Specifically, Mountaire claimed that

Moss violated the company’s attendance policy.

      In his written opinion, the Referee described the events that took place during

the months of November and December, 2013, which ultimately led to Moss’

termination. Moss was working for Mountaire at its Princess Anne hatchery,

beginning on July 27, 2013. The hatchery has an attendance policy that states once

an employee reaches six attendance points they are to be terminated immediately. The

strict attendance policy was put into place because the hatchery site is a smaller

operation and attendance is critical.

      Every employee is made aware of the attendance policy and is required to sign

the attendance policy which states “when an employee’s record initially reaches . . .




                                         2
six occurrences the employee’s position will be terminated.”1 The attendance policy

states that absence from work will be regarded as one occurrence except for those

absences related to an approved Leave of Absence. The approved leave of absence

includes absences for funeral leave, jury duty, family, and medical leave. The

attendance policy also states that should an employee be absent for two or more

consecutive days, each absence will be considered a separate occurrence unless the

employee can supply an authorized medical certification stating an inability to work

for the days in question, and in such a case, the employee will only be charged with

one occurrence. Moss acknowledged that she was aware of this policy.

      Moss’s first absence occurred on August 15, 2013. For this she received one

occurrence on her record. Moss was then absent from work on September 12, 2013,

bringing the total number of occurrences to two. Under the policy, Moss was able to

remove half of an occurrence if she completed thirty days without missing or being

late for work. Thus, in order to achieve this, she needed a perfect attendance record

until October 12, 2013. Moss reached this date, and therefore half of an occurrence

was removed from her record, bringing her total to one and a half occurrences. On

November 5, 2013, Moss was late for work and received half of an occurrence, which

brought the total to three occurrences. Moss then missed work on November 25,


      1
          R. at 8.

                                         3
2013, bringing her total to four. Mountaire issued Moss a warning, which was mailed

to and received by Moss. This served as the final warning for violation of the

attendance policy. It also included a provision that if Moss received five occurrences

she would be suspended and if she received six occurrences she would be terminated.

       Moss left work early on December 6, 2013 and received one occurrence

bringing the total to five. On December 9, 2013 Moss missed work and received one

occurrence bringing her total to six, the maximum number of occurrences allowed by

Mountaire’s attendance policy. Therefore, when Moss came into work on December

10, 2013, she was terminated.

       The Appeals Referee held that Moss was terminated for just cause. The Referee

also held that Mountaire met its burden of proving by a preponderance of the

evidence that the claimant was terminated for just cause. Therefore, he concluded that

Moss was disqualified from receiving unemployment insurance benefits. Moss filed

a timely appeal to the Board. Moss did not appear at the Board hearing, and as a

result, the Board dismissed her appeal for failure to appear.2 This appeal followed.


       2
         See R. at 57 (“[James T. Wakley:] This is the case of Raylena Moss versus Moutnaire
Farms. This was the claimant’s appeal from a referee’s determination that the claimant was
discharged from her employment with just cause in connection with the scope of her
employment. Let the record reflect that the claimant was noticed at the address of record of the
date, time and location of the Board’s hearing for a hearing to be held on April 16th, 2014 at 2:20
PM in Dover. It is now 3:32 PM. A diligent search of the premises has revealed that the claimant
has not appeared to prosecute the appeal and on motion the appeal will be dismissed.”).

                                                 4
                                STANDARD OF REVIEW

      When reviewing appeals from the Board, this Court examines only the record

upon which the Board relied in making its decision.3 This Court only determines

whether substantial evidence supported the Board’s decision, and whether the

Board’s decision lacked legal error.4 The requisite degree of evidence is only “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”5 Evaluating the evidence, deciding credibility issues, and determining

factual questions are not within this Court’s purview. 6 Ultimately, the Court only

decides whether a sufficient basis supports the Board’s decision.

                                         ANALYSIS

      Moss argues that she missed the Board’s hearing because she was running late.

Her hearing was scheduled to be held at the Board’s office in Dover, Delaware at

2:20pm. The Board sent Moss a written notice setting forth the date, time, and

location of the hearing for her appeal. Moss contends that she is entitled to

unemployment benefits because (1) she was excused by her supervisor for one or



      3
          Burgos v. Perdue Farms, Inc., 2011 WL 1487076, at *2 (Del. Super. Apr. 19, 2011)
      4
          Id.
      5
          Id.
      6
          Id.

                                               5
more of her absences, and because (2) she was at the Board’s office at 2:45pm for her

hearing at 2:20pm, and claims that her name was never called as she waited to be

heard. Regarding her first reason, Moss claims that she was told by her supervisor

that if she received a doctor’s note for her absence on Friday, December 6, 2013, it

would be forgiven and would not count towards her occurrences.

      This Court’s appellate review of a Board decision is limited to the merits.

Because the Board did not hear Moss’ case on the merits, the only issue this Court

may address is whether or not the Board abused its discretion in dismissing her case.

The Court has previously addressed this issue:

      The Board maintains statutory authority to promulgate regulations designed to
      ensure the prompt and orderly determination of the parties rights. In that
      regard, the Board has adopted Unemployment Insurance Appeals Board Rule
      B which provides, in pertinent part, that “[a]ll parties are required to be present
      for a hearing at the scheduled time. Any party who is not present within 10
      minutes after the scheduled time for hearing shall be deemed to waive his right
      to participate in said hearing.” The Court cannot conclude that the Board
      abused its discretion by dismissing Claimants appeal. This Court has
      previously recognized “the importance of adhering to a hearing schedule to
      efficiently manage and dispose of cases and the need to enforce rules such as
      Rule B to engender cooperation from the interested parties.” Thus, the Court
      concludes that the Board did not act arbitrarily by dismissing Claimant's appeal
      for failure to appear.7




      7
         Archambault v. McDonald’s Restaurant, 1999 WL 1611337, at *2 (Del. Super. Mar.
22, 1999).

                                            6
       The Board in this case did not abuse its discretion when it dismissed Moss’

appeal for failing to appear on time for her appeal. Moss was given clear written

notice of the time, place, and location of the Board’s hearing. The written notice sent

to Moss informed her that she was required to arrive “at least 15 minutes before the

time of [her] hearing is scheduled to begin.”8 The notice also informed Moss that

“failure to appear for [her] hearing in a timely manner c[ould] result in [her] appeal

being dismissed.”9 The Board waited for over fifteen minutes after the scheduled start

time, but Moss failed to appear when called.10 Moss was put on notice of the

consequences of her failure to appear on time for her hearing. Moss cannot argue the

Board abused its discretion when she was put on notice of the consequences of her

failure to appear before the Board for her hearing. The Board’s decision is in

accordance with the applicable law and is supported by substantial evidence in the

record.




       8
           R. at 55.
       9
           Id.
       10
          Moss argues that she was told by a person upon her arrival that she had missed her
appeal and that she should leave. She was told this at 3:00 PM. Whether or not this is true is
irrelevant. Nor is it relevant that the Board did not put on the record until 3:32 PM that Moss’s
appeal was being dismissed. Moss knew what time she was required to be present for her appeal.

                                                7
                             CONCLUSION

      The Unemployment Insurance Appeal Board’s decision is AFFIRMED.

      IT IS SO ORDERED.



                                            Very truly yours,

                                            /s/ Richard F. Stokes

                                            Richard F. Stokes

cc: Prothonotary
    Judicial Case Manager




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