IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BRUCE R. MATCHIN,
Appellant,

v. C.A. No. N16A-03-005 FWW
MUMFORD & MILLER CONCRETE,
INC. & UNEMPLOYMENT
INSURANCE APPEAL BOARD,

\./\./v\./V\-/W\/\_/VV

Appellees.

Submitted: December 12, 2016
Decided: January 4, 2017

Upon Appellant’s Appeal of the Unemployment Insurance Appeal Board’s
Decision:
AFFIRMED.

MEMORANDUM OPINION AND ORDER

Bruce R. Matchin, pro se, 116 Foxtail Lane, Middletown, Delaware 19709;
Appellant.

Paige J. Schmittinger, Esquire, Delaware Departrnent of Justice, 820 North French
Street, Wilmington, Delaware 19801; Attorney for Appellee Unemployment
Insurance Appeal Board.

Scott E. Chambers, Esquire, Schmittinger & Rodriguez, P.A., 414 South State
Street, P.O. BoX 497, Dover, Delaware 19901; Attorney for Appellee Mumford &
Miller Concrete, Inc.

WHARTON, J.

I. INTRODUCTION

Bruce Matchin (“Appellant”) filed a Notice of Appeal on March 14, 2016,
requesting a review of the March 10, 2016 decision by the Unemployment
Insurance Appeal Board (“UIAB”). Appellant contends that the UIAB erred When
it denied him unemployment insurance benefits because Appellant’s employer
terminated him Without just cause. Contrary to the UIAB’s findings, Appellant
argues that Appellant’s foreman gave him permission to operate the construction
equipment at issue in this case.

In considering this appeal, the Court must determine Whether the UIAB’s
decision to deny Appellant unemployment insurance benefits is supported by
substantial evidence and is free from legal error. Upon consideration of the
pleadings before the Court and the record beloW, the Court finds that there is
substantial evidence to support the UIAB’s decision, and the UIAB did not commit
legal error in reaching its decision. Accordingly, the UIAB’s decision is
AFFIRMED.

II. FACTUAL AND PROCEDURAL CONTEXT

On March 5, 2014, Appellant filed an employment application With

Mumford & Miller Concrete, Inc. (“Mumford & Miller”) for a full-time position as

a laborer.l In his application, Appellant indicated that he Was certified to operate

 

1R. at 12-14.

machinery, such as lulls, bobcats, and mini-excavators.2 Appellant Was eventually
hired by Mumford & Miller, and he began Working for them in 2015.3

On October 26, 2015, Appellant Was performing pavement removal and
replacement4 At some point, Appellant began operating a loader.5 Appellant
eventually lost control of the loader and it struck a parked vehicle on the vvorksite.6
Appellant claims that the loader’s brakes Were malfunctioning at the time of the
incident7 Nevertheless, Appellant Was terminated for this incident on October 27,
2015.8

On October 28, 2015, Appellant applied for unemployment insurance
benefits With the Department of Labor.9 On November 17, 2015, the Claims
Deputy determined that Appellant Was disqualified from receiving unemployment
benefits pursuant to 19 Del. C. § 3314(2) because Appellant operated the loader
Without his foreman’s permission10 The Claims Deputy also found that the loader

did not malfunction, as evidenced by two inspections of the loader after the

 

2 ld. at 13.

3 1a at l9.

4 Id. at 7.

5 Id.

6 ld.

7 1a

8 Id. at l9.

9 Ia'. at 1.

10 Id. at 21. See § 3314(2) (“An individual shall be disqualiiied for beneiiis: For the week in
Which the individual Was discharged from the individual's Work for just cause in connection With
the individual's Work and for each Week thereafter until the individual has been employed in each
of 4 subsequent Weeks (Whether or not consecutive) and has earned Wages in covered
employment equal to not less than 4 times the Weekly benefit amount.”).

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incident occurred.11 Appellant appealed this determination on November 19,
2015.12

At the December 8, 2015 hearing before an Appeals Referee, Todd Willits
(“Willits”), a representative of Mumford & Miller, testified that Appellant Was
discharged for Willfill misconduct When he operated a loader Without the
permission of the foreman.13 According to Mumford & Miller’s safety handbook,
an employee is not permitted to operate equipment of any kind unless the
employee has been trained to do so.14 Willits testified that Appellant signed this
document acknowledging the handbook’s contents.15 Although Appellant’s
application indicated that he Was certified to operate a loader, Willits testified that
Appellant Was neither trained on this specific loader nor allowed to operate it.16
Moreover, Appellant’s foreman, Mike Holcomb (“Holcomb”), testified that he has
seen Appellant operate equipment before, but Holcomb never directed Appellant to
operate this specific loader because Appellant Was not trained on it.17 Therefore,
Willits testified that Appellant Was in direct violation of Mumford & Miller’s

policies.

 

11 R. at 21.

1214 ai24.

13 1a ai32.

141¢1. at 36_37, 9_10.
15 ld-

161¢1. ai33.

1714 at 35.

Additionally, Willits testified that inspections subsequent to the incident
showed that the loader was functioning properly.18 Specifically, Willits testified
that the loader, which was “fairly new” at the time of the incident, was inspected
by Mumford & Miller’s own equipment manager and by an independent
mechanic.19 Willits therefore stated that Appellant’s explanation for wrecking the
loader was “dishonest.”zo

In contrast, Appellant testified that he received permission to operate the
loader. Notably, Appellant testified that Holcomb asked Appellant to operate the
loader an hour before the incident occurred, and Appellant did so without any
problems.21 Appellant testified that Holcomb again asked Appellant to operate the
loader.22 While Appellant was operating the loader the second time, Appellant
stated he lost control of it due to its malfunctioning brakes.23

The Appeals Referee determined that Appellant was disqualified from
receiving unemployment benefits under 19 Del. C. § 3314(2) because Appellant

was discharged for just cause.24 In the Referee’s decision, the Referee stated that

an employer “must demonstrate by a preponderance of evidence that the Claimant

 

18 1a at 37_38.
19 lai

201¢1. at 34.
211¢1. at 34-35.
221d

23 lai

241¢1. ai4l.

was discharged for just cause in connection with his work.”25 The Referee stated
that just cause exists where the claimant commits willful or wanton conduct in
violation of the employer’s interests.26 As such, the Referee determined that
Appellant abandoned his employer’s interests when Appellant recklessly operated
the loader without his foreman’s permission.27 On December 14, 2015, Appellant
appealed the Referee’s decision to the UIAB.28

On March 10, 2016, the UIAB affirmed the Referee’s decision and denied
Appellant’s receipt of unemployment insurance benefits.29 The UIAB noted that
the “testimony before the Board was substantially similar to that presented to the
Referee.”30 As a result, the UIAB adopted the Referee’s decision as its own.31

III. THE PARTIES’ CONTENTIONS

Appellant’s arguments are essentially the same as those that were presented
to the UIAB_that is, Appellant contends that the foreman told Appellant to
operate the loader on the night of the incident.32 As a result, Appellant argues that

he did not violate his employer’s work policies.33

 

”Mmm.

26 Id_

27 Id_

18 Id. at 43.

29 1a ar 57.

30 ld.

31 Id_

32 See Appellant’s Opening Br., D.I. 9.

33 See id. Appellant also attempts to use Mumford & Miller’s OSHA violations to support his
argument Appellant contends that Mumford & Miller violated OSHA regulations as a result of

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In contrast, Mumford & Miller contends that Appellant’s arguments “focus
exclusively on the credibility of witnesses,” and the Court is not permitted to
reassess their credibility on appeal.34 Furthermore, Mumford & Miller asserts that
the UIAB’s decision must be affirmed because substantial evidence exists to
support the UIAB’s finding that Appellant operated the loader without
permission.35

Counsel for the UIAB indicated that it did “not intend to file an answering
brief in this matter” because this underlying cause “was decided on the merits, and
the Appellant raises only challenges to the Board’s decision on the merits.”36

IV. STANDARD OF REVIEW
The UIAB’s decision must be affirmed so long as it is supported by

substantial evidence and is free from legal error.37 Substantial evidence is

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

 

Appellant’s incident Because this evidence was not presented below, the Court will not
consider it on appeal for the first time. Nevertheless, the Court is unable to discern how these
OHSA violations could support Appellant’s argument For instance, Mumford & Miller
committed a violation when it “failed to permit only those employees qualified by training or
experience to operate a front loader and other equipment or machinery.” Id. This evidence, as
the Court interprets it, actually supports the UIAB’s conclusion that Appellant was not qualified
to operate the loader. Furtherlnore, Mumford & Miller contends that the OSHA violations “were
withdrawn by OSHA on May 4, 2016.” See Appellee’s Answering Br., D.I. 11, at n.4.

34 See D.l. ll, ar 8.

33 1a at 8-9.

36 Letier from Appellee UlAB, D.l. 10.

37 Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309 (Del. 1975).

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conclusion.3 While a preponderance of evidence is not necessary, substantial

))39

evidence means “more than a mere scintilla. Moreover, because the Court does

not weigh evidence, determine questions of credibility, or make its own factual
findings, it must uphold the decision of the UIAB unless the Court finds that the
UIAB “act[ed] arbitrarily or capriciously” or its decision “exceed[ed] the bounds

)740

. . 41
of reason. Questlons of law are reviewed de novo.

V. DISCUSSION
Pursuant to § 3314(2), “an employee who is discharged for ‘just cause’ is

”42 Generally, “just

disqualified from receiving unemployment insurance benefits.
cause” exists when an employee commits a “willful or wanton act or pattern of
conduct in violation of the employer’s interest, the employee’s duties, or the
employee’s expected standard of conduct.”43 “Willful” conduct is conduct that
“implies actual, specific, or evil intent,” and “wanton” conduct is conduct that “is

heedless, malicious, or reckless, but not done with actual intent to cause harm.”44

 

38 Oceanport Indus. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. Super. 1994) (citing
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).

39 Breeding v. Contmctors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).

40 PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. June 18, 2008).

41 Wara' v. Dep ’t of Elections, 2009 WL 2244413, at *l (Del. Super. July 27, 2009).

42 Moeller v. Wilmington Sav. Funa' Soc., 723 A.2d 1177, 1179 (Del. 1999) (citations omitted).

43 Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986) (citing Abex Corp. v. Toda',
235 A.2d 271, 272 (Del. Super. 1967)).

44 Tuttle v. Mellon Bank of Delaware, 659 A.2d 786,789 (Del. Super. 1995) (citing Farmer v.
E.I. DuPom‘ De Nemours and Co., 1994 WL 711138, at *3 (Del. Super. Nov. 9, 1994)).

8

After reviewing the record, the Court finds that the UIAB’s decision that
Appellant was discharged for just cause is supported by substantial evidence. In
essence, Appellant seeks for this Court to reweigh the evidence to find that he was
discharged without just cause. Notably, Appellant would have the Court find that
Holcomb did in fact tell him to operate the machinery. However, that is not the
Court’s role at this stage in the proceeding The Court cannot reweigh the
evidence or determine the credibility of the witnesses. At this stage, the Court’s
role is limited to determining whether substantial evidence exists to support the
UIAB’s findings. Here, such evidence exists. For instance, despite the fact that
Appellant’s employment application indicated he was qualified to operate certain
machinery, both Willits and Holcomb testified that they did not give Appellant
permission to operate the specific loader at issue. The UIAB relied on the
testimony of these two witnesses to conclude that Appellant disregarded his
employer’s interests. Such reliance cannot be disturbed because “a reasonable
mind might accept [their testimony] as adequate to support a conclusion.”45

VI. CONCLUSION

For the foregoing reasons, the Court finds that the UIAB’s decision is

supported by substantial evidence and is free from legal error.

 

43 Oceanpor¢ Indus., 636 A.2d at 899.

Therefore, the UIAB’s decision is hereby AFFIRMED.

IT IS SO ORDERED.

 

 

Ferrisi "W. Wharton,[]udge
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