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


MARIO FLEURY,                            :
                                         :     C.A. No: K14A-03-003 (RBY)
            Appellant,                   :
                                         :
      v.                                 :
                                         :
UNEMPLOYMENT INSURANCE                   :
APPEAL BOARD,                            :
                                         :
            Appellee.                    :



                          Submitted: June 19, 2014
                           Decided: July 17, 2014


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

                                  ORDER


Mario Fleury, Pro se.

Catherine Damavandi, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware for Unemployment Insurance Appeal Board.




Young, J.
Fleury v. UIAB
C.A. No.: 14A-03-003 (RBY)
July 17, 2014

                                   SUMMARY
      This is an appeal from a decision of the Unemployment Insurance Appeal
Board (“the Board”) denying unemployment benefits to Mario Fleury (“Appellant”),
a former employee of KenCrest Community Living Services (“KenCrest Services”
or “Employer”). Appellant was terminated for violating Employer’s policy of sleeping
while on duty. There is no evidentiary showing of Appellant’s deviation from
Employer’s expected standard of conduct, except for the one incident in question. On
the record, there appears to be no willful or wanton act by Appellant to support a
finding of just cause for termination. Hence, the decision of the Board is
REVERSED.
                                     FACTS
      Appellant was employed by KenCrest Services from June 7, 2010 to October
25, 2013. Appellant worked full-time as a Resident Advisor, earning $11.41 per hour.
Between 1:30 a.m. and 1:45 a.m. on October 17, 2013, Appellant suffered a migraine
headache. Consequently, Appellant took two Aleve tablets, and put his head down to
rest in order to relieve his headache. Two witnesses for Employer, Suzanne Casey and
Wendy Wilson, conducted an unannounced night check, and found Appellant
sleeping on the job. Appellant woke up approximately five minutes after the two
witnesses sat down next to him. Appellant denied sleeping on duty.
      On October 25, 2013, Director Kim Vaughn of KenCrest Services sent
Appellant a letter, notifying him that his employment had been terminated for his
policy violation of sleeping on duty. The KenCrest Community Living Services Work
Rules and Guidelines state, in Section XIII, that sleeping while on duty, with the

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Fleury v. UIAB
C.A. No.: 14A-03-003 (RBY)
July 17, 2014

exception of approved sleepovers, is prohibited, is considered neglect, and is grounds
for termination. Appellant signed the KenCrest Community Living Services Work
Rules and Guidelines Acknowledgment form on December 17, 2012.
      On November 19, 2013, the Delaware Department of Labor Claims Deputy,
determined that Appellant was disqualified for unemployment benefits, because
Appellant was discharged from work for just cause. Appellant sent an Appeal Request
Notification on November 25, 2013, challenging the prior decision by the Claims
Deputy. In the Appeal Request Notification, Appellant stated that he is a veteran, and
has suffered migraine headaches for “a very long time.”
      The Delaware Department of Labor, Division of Unemployment Insurance
Appeals held a hearing, concerning the appeal to the Claims Deputy’s decision, on
December 19, 2013. The Appeals Referee, Geoffrey Silverberg, affirmed the Claims
Deputy’s decision, disqualifying Appellant for the receipt of unemployment benefits.
Appellant sent an Appeal Request Notification to the Board on December 31, 2013.
The Board held an administrative hearing regarding the decisions below on February
19, 2014.
      During this administrative hearing, Appellant testified that he reported to work
on the day in question to fill in for another employee. Appellant did so despite the
facts that it was his day off, and that he had worked continuously for seven days at
that point. Another witness and representative of Employer, Pamela Cannon, testified
that the night shift staff is required to remain awake. On February 25, 2014, the Board
affirmed the prior decision of the Appeals Referee.
      Appellant submitted a Notice of Appeal of the Board’s decision to this

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Fleury v. UIAB
C.A. No.: 14A-03-003 (RBY)
July 17, 2014

Court on March 10, 2014. Appellant submitted an Opening Brief in the instant
matter on May 16, 2014. Appellee submitted a letter to the Court in response to
Appellant’s Opening Brief on May 26, 2014.
                                 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.1 Substantial evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.”2 It is “more than a scintilla, but less than
preponderance of the evidence.” 3 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.”4 Where an agency has interpreted and applied a statute, the court’s
review is de novo.5 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.6



       1
           29 Del C. § 10142(d); Avon Prods. v. Lamparski, 203 A.2d 559, 560 (Del. 1972).
       2
       Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. 1981) (citing Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)).
       3
           Id. (quoting Cross v. Calfano, 475 F.Supp. 896, 898 (D. Fla. 1979).
       4
         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. April
30, 2009).
       5
           Lehman Brothers Bank v. State Bank Commissioner, 937 A.2d 95, 102 (Del. 2007).
       6
           Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998).

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Fleury v. UIAB
C.A. No.: 14A-03-003 (RBY)
July 17, 2014

                                           DISCUSSION
             In his Opening Brief, Appellant challenges the Board’s decision by arguing
that he worked for Employer for nearly four years without taking any sick leave or
being criticized for bad performance. Appellant asserts that, on October 25, 2013,
on his day off, he received a call from his supervisor asking him to work in order
to cover a coworker’s shift. According to Appellant, he fell asleep during his shift
only after taking medication to relieve a migraine. Once two other supervisors
observed Appellant with his head down sleeping, the supervisors asked him to
leave. Subsequently, Appellant was suspended for a week without pay, and
terminated without any other warning.
         The issue before the Board was whether Appellant’s employer had
sufficient just cause to discharge Appellant from his employment. In a discharge
case, the employer must show by a preponderance of the evidence that the
claimant was discharged for just cause in connection with his work.7 Just cause
exists where the claimant commits a willful or wanton act, or engages in a willful
or wanton pattern of conflict in violation of the employer’s interest, his duty to the
employer or his expected standard of conduct. In Delaware, one factor utilized in
determining just cause for discharging an employee is whether the employee
received a prior warning of the termination.8
         Employer knew about Appellant’s continuous migraines, and knew that


         7
              Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, (Del. Super. Jul. 27,
2011).
         8
              Tuttle v. Mellon Bank of Delaware, 1995, 659 A.2d 786 (Del. Super. 1995).

                                                   5
Fleury v. UIAB
C.A. No.: 14A-03-003 (RBY)
July 17, 2014

Appellant had worked a full week prior to the day in question. However, Employer
still specially called Appellant in to work to help cover another employee’s shift
on Appellant’s day off. Appellant worked for Employer for nearly four years
without taking any sick leave or being criticized for bad performance. More
importantly, Appellant fell asleep during his shift only after taking medication to
relieve his migraine. There is no evidentiary showing of Appellant’s deviation
from Employer’s standard of conduct, except for this one incident. In light of these
facts, there appears to be no willful or wanton act or pattern of conflict in violation
of Employer’s interest by Appellant, to support a finding of just cause for
termination. Therefore, the Board abused its discretion in its decision below.
                                  CONCLUSION
      For the foregoing reasons, the decision of the Board is REVERSED.
      IT IS SO ORDERED.


                                            /s/ Robert B. Young
                                                       J.
RBY/lmc
oc: Prothonotary
cc: Mr. Fleury, Pro se
     Catherine Damavandi, Esq.
     Opinion Distribution
     File




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