IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN S. MALIK, )
)

Appellant, )

)

v. ) C.A. No.: Nl6A-07-006 AML

)

THERESA DEYARMIN & )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
)

Appellees. )

Submitted: March 31, 2017
Decided: June 23, 2017

ORDER

On appeal from the Unemployment Insurance Appeal Board:
REVERSED & REMANDED.

l. This is an appeal by an employer from an Unemployment Insurance
Appeal Board (the “Board”) decision affirming an appeals referee’s decision
awarding unemployment benefits to a claimant. The Board’s decision determined
the claimant Was terminated Without just cause. The employer argues the Board
failed to consider all the evidence and applied the incorrect law. For the reasons
that follow, I am unable to review the decision due to the Board’s inadequate

factual findings, and I therefore remand the case to the Board.

2. Theresa Deyarmin worked as John S. Malik’s legal secretary from
January 2008 until February 2016.l Malik practices criminal law as a solo
practitioner.2 Deyarmin’s duties included opening client files, calendaring and
scheduling matters, filing and mailing documents, and answering the office
telephone.3 On or about February 29, 2016, Malik discharged Deyarmin for poor
performance of job duties and misconduct, which included “insubordination[]
[and] violation of company policies/procedures.”4 According to Malik,
Deyarmin’S behavior was a willful and wanton violation of Malik’s expected
Standard of conduct.

3. Deyarmin’s alleged misconduct involved failing to send certain
discovery correspondence in criminal cases (a “Rule 16 Letter”) and failing to
calendar events after multiple wamings, and her poor job performance was based
on her failure to maintain both a call log and the calendar.5 Allegedly, Deyarmin’s
conduct subjected Malik to potential professional liability.6

4. Deyarmin filed for unemployment benefits effective March 5, 2016.

On March 17, 2016, a claims deputy concluded Malik discharged Deyarmin “from

 

‘R. ar 15.

2 ld. at 76.

3 1d.at16,71.
41d. at4, 5.

5 Id. at4.

6 ld.ar16.

her position due to negligence in conjunction with her work.”7 The claims deputy
determined Deyarmin was discharged for just cause and she therefore was
disqualified from receiving unemployment benefits.8 Deyarmin timely appealed
the claims deputy’s decision.9

5. On April 11, 2016, an appeals referee (the “Referee”) held a hearing

0 At the hearing,

to address whether Deyarmin was discharged for just cause.l
Malik testified that Deyarmin’s termination was preceded by “a series of problems
that became very significant” in February 2016: failing to calendar a hearing the
week of February 7, 2016; failing to send a Rule 16 Letter the week of February
14, 2016; failing to send a Rule 16 Letter the week of February 21, 2016; and
failing to calendar a teleconference for February 25, 2016.ll Malik testified that
the failure to file the Rule 16 Letters not only was embarrassing professionally for
him, but it exposed him to potential professional liability.12 Malik also testified
that while he was in court during a trial, he received seven phone calls in a row
from the United States Attorney’s Office regarding a teleconference in front of a

federal district court judge.13 The teleconference was not on Malik’s calendar, and

he knew nothing about it. Ms. Deyarmin testified: “I understand that I didn’t file

 

7 ld. ar 5.

8 1a

9 ld. ar 8.

10 1a at 10.

" ld. ar 16-24.
‘2 Id. at 20.

‘3 Id. at 21-23.

those documents that were supposed to be there. I sometimes could not find files
because they weren’t where they’re supposed to be. . . .”'4
6. On April 11, 2016, the Referee reversed the claims deputy’s decision,
concluding Malik was unable to establish just cause for termination and Deyarmin
therefore was entitled to unemployment benefits.15 The Referee found:
During February 2016, Claimant’s work product was not
up to Employer’s standards. Items were not placed on
Employer’s calendar and Rule 16 letters were not sent as
needed. Claimant could not find the files she needed as
they were not supposed to be [sic]. Within one month
there were four major problems with Claimant’s work.
Employer then decided to discharge Claimant.
The Referee concluded that Malik “merely mentioned instances of [Deyarmin’s]
failure to do her job as required. However, no unequivocal warning or other
documentation was presented.”16 After considering “the factual circumstances for

which [Deyarmin] was discharged in light of her testimony and lack of sufficient

first-hand evidence to contradict that testimony,” the Referee was “unable to find

 

14 Id. at 24-25. The remainder of Deyarmin’s testimony: “. . . But I also was doing more than
just a secretarial job. I was doing deposits for him. I was going to the Courthouse for him, No
extra pay. I did work on Saturday, either in early January or early February. He got a new
billing system. I worked for three hours on a Saturday, never got compensated for it. He is
paying the law clerk’s health insurance, which I worked for him for eight years and he told me
he could never afford to pay my health insurance. I didn’t think that was fair that somebody new
comes in and he’s paying her health insurance and he didn’t pay mine.” Id. at 25.

'5 1d.at28,30.

'6 ld. ar 30.

willful or wanton misconduct on [Deyarmin’s] part supporting her discharge for
just cause.”17 Malik timely appealed the Referee’s decision to the Board.18

7. On May 11, 2016, the Board held a hearing.19 The Board considered
the evidence previously presented to the Referee and the Referee’s decision and
heard testimony from both parties.20 Malik submitted 14 exhibits, without
objection.21 First, Malik testified that part of Deyarmin’s job duties included
maintaining a running-list of daily, detailed phone messages, which he first
instructed her to do on May 12, 2010.22 Malik also testified that he instructed
Deyarmin to email this list to him and place it in a three-ring binder at the end of
each day.23 Malik submitted the May 12, 2010 email in which he explained this
call log policy to Deyarmin.24 Malik further testified that in January 2016, he
reviewed the policy with Deyarmin.25 Malik submitted four elnails, ranging from

January 2016 to February 2016, in which he told Deyarmin she incorrectly was

 

17 jdl
’8 ld. at 33.

"2 Id. 3187.

20 Id.

21 ]d. at 70-71. These exhibits were submitted to the claims deputy but not to the Referee as an
oversight on Malik’s part. Despite being told that the Referee hearing was de novo, Malik
believed the exhibits would be included in the claims deputy’s file that the Referee received. Id.
at 70; see also id. at 14 (“This is a hearing de novo, a brand new hearing. I will make my
determination on what I hear and see during today’s hearing.”).

22 Id. at 71.

22 ld.

24 ld.; see R. at 34 (Ex. 1).

25 R. at 72-73.

maintaining the call log or otherwise incorrectly was logging incoming phone
calls.26

8. Malik also testified that in 2013, he instructed Deyarmin that before
she scheduled any existing clients to come into the office, she needed to clear it
with him,27 Malik submitted two emails: one dated May 7, 2013, reminding
Deyarmin of this policy,28 and a second dated February 27, 2014, instructing
Deyarmin to stop scheduling client meetings without first clearing it with him.29

9. Malik further testified that he is required, for newly opened criminal
cases, to send Rule 16 Letters requesting discovery from the State.30 Malik
testified Deyarmin was instructed that upon opening a new client file, she was to
send a Rule 16 Letter and calendar all court dates.31 Malik testified that he would
explain to Deyarmin from time to time the importance of sending the Rule 16
Letters because he would notice the letter was not sent in a particular case. He
then would ask Deyarmin to go through the entire file cabinet and make sure Rule
16 Letters were in every file. Malik also testified he held a meeting at the

beginning of 2016 stressing the importance of sending out the Rule 16 Letters.32

 

26 Three of the four emails are dated within six days of each other and are individual emails
regarding individual phone messages. See id. at 35-43 (Exs. 2-5).

22 R. ar 74.

22 Id. ar 45 (Ex. 6).

29 R. ar 75; R. ar 47 (Ex. 7).

20 R. ar 75.

2'1d. at76.

32 jdl

10. Malik lastly testified that while he was in trial on February 24, 2016,
his phone kept ringing.33 He asked the judge to be excused so he could take the
call because he could see the United States Attorney’s Office was calling. Malik
testified that the United States Attorney for the District of Delaware was calling for
a teleconference in front of a federal district judge - a judge with whom Malik
previously missed an office conference due to failing to calendar the event.
Luckily, the teleconference was not until February 25, 2016. That teleconference,
however, was not on Malik’s calendar either. Malik testified that Deyarmin’s
failure to put this teleconference on the calendar was “the last straw.”34

11. Deyarmin testified that she “did make mistakes” and “did not file
those [Rule 16 letters], but there were times you could not find the files in that
office” because they would be in Malik’s car or briefcase.35 She also stated she
does not know what was wrong with the calendar because the teleconference was
on her calendar. Deyarmin testified she was aware that she needed to file the Rule
16 Letters and Malik explained to her that her continued failures to follow his
instructions would result in her termination.36

12. On June 22, 2016, the Board issued its decision, affirming the

Referee’s decision, The Board found that Malik’s warning to Deyarmin on

22 1a ar 81.
24 ld.

22 ld. at 84.
26 Id. at 85.

February 23, 2016 related to the Rule 16 Letters, but he terminated her for failing
to calendar a teleconference. The Board therefore concluded Malik terminated
Deyarmin for poor performance Relying on Starkey v. Unemploymem Insurance
Appeal Board, the Board determined Malik failed to prove Deyarmin was
terminated for just cause, since “poor performance of duties ‘due to mere
inefficiency, unsatisfactory conduct, or failure of performance as a result of
inability or incapacity, inadvertence in isolated instances or good faith errors of
judgment’ does not rise to the level of willful and wanton.”37 Malik timely
appealed the Board’s decision to this Court.

13. Malik argues the Board’s decision was neither supported by
substantial evidence nor free from legal error. Malik contends the Board failed to
consider or address his evidence of Deyarmin’s continued misconduct between
October 2015 and February 2016.38 According to Malik, the Board “defied this
Court’s well-established standard that ‘just cause’ for termination exists when an
employee was aware of an employer’s established policy and disciplined for
subsequent violations.”39 Malik also argues the Board failed to address whether
Deyarmin’s misconduct rose to a level of willful and wanton.40 As a result of these

oversights, Malik contends, the Board assumed Deyarmin was terminated for an

37 Id. at 89 (quoting Starkey v. Unemployment Ins. Appeal Bd., A.2d 165, 166-67 (Del. Super.
1975)).

38 Appellant’s Opening Br. 7-8.

22 1a at 8.

40 ld.

isolated instance of poor performance or good faith error in judgment, and
incorrectly relied on Starkey. Finally, Malik contends the Board’s decision is at
odds with Green-Hayes v. Delaware Department of Lal)or,41 which holds an
employee’s action that subjected an employer to potential litigation is willful and

42 Malik further argues that such cases are so egregious, termination is

wanton.
warranted without notice.43

14. The Board did not file an answering brief, asserting that the
“underlying case was decided on the merits” and Malik “raises only challenges to
the Board’s decision on the merits.”44 Deyarmin did not timely file any opposition
to the appeal. On February 20, 2017, Malik filed a reply brief, arguing this Court
should deem his opening brief unopposed and the Board’s decision should be
reversed solely on that basis.45

15. After the record closed,46 Deyarmin filed a letter in which she: (i)
acknowledged not sending the Rule 16 Letters in two cases but offered reasons for

not doing so; (ii) asserted it was not her job to ensure that Malik’s phone calendar

reflected the same information as was on the computer calendar; and (iii) stated if

 

:; 2012 WL 3518122 (Del. super. Aug. 8, 2012).

Id.
43 Ia’. (citing Green-Hayes, 2012 WL 3518122).
44 D.I. 15.
45 Appellant’s Reply Br. 1 (citing Green v. Unemployment Ins. Appeal Bd., 2012 WL 5462848
(Del. Super. Sept. 28, 2012)).
46 See D.I. 20. Deyarmin failed to respond to this Court’s March 8, 2017 delinquent brief notice,
D.I. 19, and therefore the Court issued an Order stating “the Court will make a determination of
the issue on the papers which have been filed.”

Malik had returned client phone calls, people would not show up at his office.47
Deyarmin also claimed she deserves unemployment benefits for “being a hard
worker for eight years with one raise the entire time.”48

16. This Court’s review of the Board’s decision is limited to whether the
Board’s findings were supported by substantial evidence and whether its decision
was free from legal error.49 “Substantial evidence means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”50 The Court
will not weigh evidence, determine questions of credibility, or make its own
factual findings and conclusions.§'

17. The Court is unable to review the Board’s decision due to its
inadequate factual findings based on the evidence. “Without the Board’s factual
findings, the Court cannot determine whether there was substantial evidence to
support the Board’s decision or whether the law was properly applied to the

5952

facts. Although the Board enjoys great autonomy in its fact-finder role, “the

 

42 D.1.21.

42 1a

42 See Thompson v. Chrisrmna Care Healrh sys., 25 A.3d 778, 781-82 (Del. 2011); Deysher v_
Unemployment Ins. Appeal Bd., 2011 WL 7063475, at *1 (Del. Super. Sept. 28, 2011) (citing
Olney v. C00ch, 425 A.2d 610, 614 (Del. 1981)) (defining substantial evidence as “evidence
from which the Board could fairly and reasonably reach its conclusion”).

50 Oceanport Indus., Inc. v. Wilm. Stevea’ores, lnc., 636 A.2d 893, 899 (Del. 1994) (citing Olney,
425 A.2d at 614).

2' Thompson, 25 A.3d ar 782

22 R.C. Nehi Corp. v. Dillmore, 1986 WL 4570, ar *3 (Del. super Mar. 31, 1986) (citing Bames
v. Panaro, 238 A.2d 609 (Del. 1968); Farley v. Sears, Roebuck & Co., 258 A.2d 293 (Del.
Super. Oct. 1, 1969)); Atlantis Commc'ns v. Webb, 2004 WL 1284213, at *2 (Del. Super. May
28, 2004) (“The Board’s decision should provide the reviewing court with the Board’s holding

lO

Board may not completely ignore evidence that contradicts the Board’s findings.”53

At the Board’s hearing, Malik presented evidence that from October 2015 to
February 2016, Deyarmin persistently had performance issues. Yet, the only
mention the Board made of this evidence was a fleeting reference to it in its
“Summary of Evidence.” The Board’s “Summary of the Evidence” states:

Malik explained the 14 exhibits presented by his counsel.
He testified that Exhibits 1-5 pertain to Claimant’s failure
to keep a phone log. The Claimant was instructed not to
schedule current client meetings until it was cleared with
him, He testified that Exhibits 6-7 address Claimant’s
failure to schedule current client meetings properly. He
testified that Exhibits 8-11 pertain to Claimant’s failure
to send Rule 16 discovery letters. The final incident was
February 23, 2016 when Claimant failed to send out a
Rule 16 Discovery letter. He sent an email to the
Claimant (Exhibit 11). He considered this as the final
warning. On February 24th, he found out that a [f]ederal
teleconference had not been calendared. Claimant was
terminated for poor performance.

Claimant . . . testified that she does admit that she did
make a mistake. Claimant was aware of the need to file
Rule 16 letters.54

 

and reasoning.”) (citing Turbitl v. Blue Hen Lines, 711 A.2d 1214, 1216 (Del. 1998)
(citing Lemmon v. Northwooa' Constr., 690 A.2d 912, 913-14 (Del. 1996) (“Rejection of
evidence on the basis of credibility must be supported by specific references to the evidence of
record which prompts disbelief.”)); New Colony N. Apartments Co. v. Vaught, 1995 WL 109050,
at *2 (Del. Super. Feb. 28, 1995) (citing R.C. Nehl' Corp., 1986 WL 4570, at *3) (“Without the
Board’s factual findings, the Court cannot determine whether there was substantial evidence to
support the Board’s decision or whether the law was properly applied to the facts.”))).

53 Haggerty v. Ba’. of Pension Trs., 2012 WL 3029580, at *4 (Del. Super. July 20, 2012)
(citations omitted).

24 R. ar 87-88.

The “Findings of Fact and Conclusions of Law” section acknowledges even less
evidence, containing only the following facts:

Claimant worked fulltime as a legal secretary from

January 2008 through February 29, 2016. . . . The Board

finds that Claimant was warned on February 23, 2016,

That warning states, in pertinent part: . . . However, the

very next day, Claimant was terminated for failing to

calendar a [f]ederal teleconference. l\/Ir. Malik testified

that Claimant was terminated for poor performance . . .

Further, the evidence submitted to the Board by the

Employer shows that Employer tolerated Claimant’s
behavior for years.55

18. There are many facts on which the Board depended for its ruling that
are not recited in its findings of fact. The Board also failed to provide any
indication that it actually considered certain material allegations For instance, as
to the evidence of Deyarmin’s previous misconduct relating to the phone log,
calendar, and the Rule 16 Letters, the Court does not know if the Board overlooked
this evidence, disbelieved it, or found it immaterial, even if true.56 Critically, there
also is no mention of Malik’s allegation that Deyarmin’s conduct potentially
exposed him to professional liability. Furthermore, nowhere does the Board

acknowledge Deyarmin’s testimony that Malik explained to her that continued

 

22 Id. ar 88-89.

56 The Board is not required to comment on every piece of evidence or every allegation made.
Wesley Coll. v. Unemployment Ins. Appeal Ba'., 2009 WL 5191831, at *9 (Del. Super. Dec. 31,
2009) (“While the Board need not comment on every piece of evidence, it must not ‘fail to
address material allegations.”’) (citing R.C. Nehz' Corp., 1986 WL 4570, at *3 (citation omitted)
(“The Board need not comment on every fact situation or mention testimony to which it does not
assign credibility.”) (quoting Atlcmtis Commc’ns, 2004 WL 1284213, at *2)). The Board,
however, must resolve material allegations Wesley Coll., 2009 WL 5191831, at *9.

12

failures to follow his instructions would result in her termination.57 Whether
Deyarmin received a warning seemingly affected the Board’s decision, and
therefore the Board must explain why Deyarmin’s testimony on this issue was
irrelevant. The Court does not know if or how this misconduct and warning, or
lack of warning, affected the Board’s decision.58

19. The Board’s discussion of other issues similarly is incomplete. For
example, as to the Board’s finding that Malik tolerated Deyarmin’s behavior for
years, the specific behavior to which the Board is referring is unclear. ln addition,
the Board’s “Summary of the Evidence” misstates Deyarmin’s testimony in stating
“she does admit that she did make a mistake.” Deyarmin testified: “I did make
mistake§.”59 There also is no explanation as to how, on one hand, the Board found
that the February 23, 2016 Rule 16 Letter incident was the “1inal incident,” but on
the other hand, “Claimant was terminated for failing to calendar a [f]ederal
teleconference.”60 Most notably, the Board’s ultimate finding was that Malik
failed to present sufficient evidence of Deyarmin’s misconduct. Does this mean

the Board accepted as true Malik’s evidence but concluded that the acts

 

22 R. 3185.

22 R.C. Nehi Corp., 1986 wL 4570, ar *3; see also Vaughr, 1995 WL 109050, ar *3 (“on the
other hand, if [the claimant’s] employment history features misconduct including
insubordination, . . . as alleged, that must be considered in weighing the incidents precipitating
ghis] terminalion.”).

9 R. at 84 (emphasis added).

60 Malik testified that the teleconference incident “was the last straw.” R. at 81.

13

complained of were not sufficiently willful or wanton?61 Was Malik’s evidence
irrelevant or incompetent? Even if the Court assumes the Board accepted all
Deyarmin’s testimony, what of Malik’s allegations that Deyarmin did not rebut? If
the Board believed Malik’s undisputed testimony, the Board did not explain why
Deyarmin’s behavior did not constitute just cause for termination. The Court is
concerned that the Board recognized Deyarmin’s ongoing inadequate job
performance, yet failed to explain why it was not cause for terrnination.62

20. On the present record, the Court cannot determine if the Board’s
decision was supported by substantial evidence or whether the law properly was
applied to the facts. Accordingly, the matter must be remanded for filrther
proceedings consistent with this Order. Malik also argued the Board misapplied
the law. Having determined that the Board’s decision was not supported by
substantial evidence, I need not reach that issue. Malik, however, may raise the

issue to the Board on remand.

 

61 Is the Court to infer that because the Board found Deyarmin was discharged without just cause
that this issue was resolved in her favor? If there was only one issue on which evidence was
offered, the inference in favor of Deyarmin would follow directly. See Bd. of Pub. Educ. v.
Rz'mlinger, 232 A.2d 98, 101 (Del. 1967) (“There are occasions when the Court can readily infer
from the ultimate findings and the record just what the subordinate findings must have been.”).
Here, however, there were a number of issues, a good number of which were not mentioned at all
in the summary of evidence or findings of fact.

62 Instead of being insignificant, the final failure to calendar incident, coming after the Rule 16
Letter incidents, may have been the straw that broke the camel's back. See Vaughl, 1995 WL
109050, at *3; Atlantl`s Commc'ns, 2004 WL 1284213, at *3 (“[T]he court is concerned that the
Board recognized Claimant’s chronic absenteeism and inadequate job performance, yet failed to
explain why that was not cause for dismissal.”).

14

FOR THE FOREGOING REASONS, the Unemployment Insurance

Appeal Board’s June 22, 2016 decision is REVERSED & REMANDED.

ITIS so oRDERED. 2 _ 2 (:£7/

AbigaiL)/i.`L<-Eoro`{v,`iud§d

Original to Prothonotary
cc: Carla A.K. Jarosz, Deputy Attorney General
Michele D. Allen, Esquire
Victoria W. Counihan, Esquire
Ms. Theresa Deyarmin, pro se (via U.S. First Class Mail)

15

