      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

PEDRO CARBAJAL,        )
    Appellant,         )
                       )
    v.                 )                    C.A. No.: N14A-12-004-ALR
                       )
LANDSCAPE SERVICE CO., )
                       )
    &                  )
                       )
UNEMPLOYMENT INSURANCE )
APPEALS BOARD          )
    Appellees.         )

                             Submitted: July 2, 2015
                             Decided: July 21, 2015

 On Appeal from the Decisions of the Unemployment Insurance Appeals Board
                                AFFIRMED




Pedro L. Carbajal, Pro Se, for Appellant.

Paige J. Schmittinger, Deputy Attorney General, for the Unemployment Insurance
Appeals Board.

Rocanelli, J.
      This is an appeal by Pedro Carbajal (“Claimant”) from a determination of

the Unemployment Insurance Appeals Board (“UIAB”) issued on December 12,

2014 in Case No. 20965332. The UIAB found that Claimant was discharged from

his employment for just cause, and therefore was disqualified from the receipt of

unemployment benefits. Claimant filed this appeal regarding the UIAB’s decision.

For the reasons set forth below, the decision of the UIAB is affirmed.

                            Board’s Factual Findings

       Claimant worked for Landscape Service Co. (“Employer”) as a full-time

groundsperson from March 31, 2014 to August 19, 2014. Both Employer and

Claimant agree that Claimant was hired under the condition that he would obtain a

Commercial Driver’s License (“CDL”) within four months of his employment.

Claimant passed the written portion of the CDL exam, but failed the driving

portion on four separate occasions. On August 19, 2014, Claimant failed the

driving portion of the CDL exam for the fourth time and was discharged on the

same day.

                               Procedural History

       The Department of Labor issued a Notice of Determination on September

19, 2014 disqualifying Claimant from the receipt of unemployment insurance

benefits after being discharged for just cause in connection with his work.

Claimant filed a timely appeal of the decision.


                                         1
        An Appeals Referee conducted an Unemployment Insurance Appeals

Hearing on October 10, 2014. Following the hearing, the Appeals Referee issued

an opinion on October 16, 2014 reversing the determination that Claimant was

disqualified from unemployment insurance benefits.        The Appeals Referee’s

decision relied on Starkey v. Unemployment Insurance Appeal Board.1            The

Superior Court in Starkey established that just cause for termination “does not

mean 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.”2 The Appeals Referee concluded that Claimant’s failure to

obtain his CDL was the result of inability rather than misconduct. As a result, the

Appeals Referee determined that the Claimant was eligible to receive

unemployment insurance benefits.

        Employer filed a timely appeal of the Appeals Referee’s decision. The

UIAB held a hearing on November 12, 2014. In a decision issued on December

12, 2104, the UIAB reversed the decision of the Appeals Referee. The UIAB

concluded that Claimant had been given sufficient opportunity to pass the CDL

driving exam and that he did not make an effort to pass. As a result, the UIAB

found that Claimant was discharged for just cause and, therefore, was disqualified

from the receipt of unemployment benefits.

1
    340 A.2d 165 (Del. Super. 1975).
2
    Id. at 166-167.
                                        2
                               Standard of Review

      The Court’s appellate review of decisions of the UIAB is limited. The scope

of review for any court considering a decision of the UIAB is whether the UIAB

abused its discretion. Absent abuse of discretion, the Court must uphold a decision

of the UIAB. 3 An appellate review of a decision by the UIAB is limited to

determining whether the UIAB’s finding and conclusions are free from legal error

and are supported by substantial evidence in the record.4 Substantial evidence is

relevant evidence that a reasonable person could accept as adequate to support a

conclusion.5 The decision of the UIAB must be affirmed if it is supported by

substantial evidence.6

                                   Discussion

       The UIAB considered the evidence presented at the November 12, 2014

hearing as well as the evidence presented to the Appeals Referee as part of the

record. Employer and Claimant both testified that obtaining a CDL within four

months was made a condition of the employment upon Claimant being hired.7

Additionally, Employer testified that Claimant did not avail himself of the


3
  Funk v. Unemp’t Ins. App. Bd., 591 A.2d 222, 225 (Del. 1991); Dept. of Labor v.
Medical Placement Services, Inc., 457 A.2d 382, 383 (Del. Super. 1982).
4
  See PAL of Wilm. v. Graham, 2008 WL 2582986, at *3 (Del. Super. June 18,
2008).
5
  Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
6
  General Motors Corp. v. Freeman, 164 A.2d 686 (Del. 1960).
7
  UIAB Admin. Hearing at 6, 9, Nov. 12, 2014.
                                        3
assistance provided to him for passing the CDL driving exam, such as instructive

online videos and access to four other employees with a CDL who were available

to provide advice or guidance. Further, Employer testified that Claimant never

volunteered or offered to drive the trucks while at work, despite the fact that he had

a valid permit to drive, which would have provided him valuable practice and

experience to pass the driving portion of the CDL exam. The UIAB also heard

testimony from a CDL driver working under Employer and alongside Claimant.

The co-worker testified that he did not believe Claimant wanted to drive because it

would require Claimant to drive in the city.

      The Court is satisfied that the record contains substantial evidence to support

the findings of the UIAB. The UIAB, as the fact finder, has the exclusive purview

to consider “[t]he credibility of witnesses, the weight of their testimony and the

reasonable inferences to be drawn therefrom.” 8       The UIAB heard substantial

evidence from Employer’s testimony, Claimant’s testimony, and the testimony of a

co-worker to support the UIAB’s finding that Claimant did not take advantage of

assistance made available to him that would have helped Claimant to pass the

driving test.

      Moreover, the decision of the UIAB is free from legal error. As discussed,

the Appeals Referee relied on Starkey in reaching the conclusion that Claimant was

8
 Behr v. Unempl. Ins. Appeal Bd., No. 94A-07-005, 1995 WL 109026, at *1 (Del.
Super. Feb. 7, 1995) aff'd, 670 A.2d 1336 (Del. 1995).
                                          4
entitled to the receipt of unemployment insurance benefits because his failure to

obtain a CDL was the result of inability rather than misconduct. However, the

decision of the UIAB is, in fact, consistent with Starkey. In Starkey, the Superior

Court also stated, “where evidence on the record exists from which a factfinder

could infer that an employee’s substandard performance is the result of a willful

act in violation of the employer's interests rather than conduct which, at first

glance, appears to be merely inadvertent or inefficient, a denial of benefits is most

appropriate.”9 Considering all the evidence on the record, the UIAB found that

Claimant’s failure to obtain a CDL was not the product of mere inability, but rather

the result of his failure to make any effort to pass the driving portion of the exam.

As such, the findings of the UIAB are consistent with Starkey and the decision is

free from legal error.

                                    Conclusion

         The Court has examined the record below and determined that substantial

evidence supports the UIAB’s decision. The decision is free from legal error and

the UIAB did not abuse its discretion.




9
    Starkey, 340 A.2d at 167.
                                         5
     NOW, THEREFORE this 21 day of July, 2015, the decision of the UIAB

hereby is AFFIRMED.

          IT IS SO ORDERED.


                                Andrea L. Rocanelli
                                _____________________________
                                Honorable Andrea L. Rocanelli




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