            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


THOMAS A. WHEAT, JR.,                          :
                                               :     C.A. No: K15A-12-002 RBY
                   Appellant,                  :     In and for Kent County
                                               :
      v.                                       :
                                               :
UNEMPLOYMENT INSURANCE                         :
APPEALS BOARD,                                 :
                                               :
                   Appellee.                   :


                                Submitted: June 16, 2016
                                 Decided: July 1, 2016


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

                                       ORDER


Thomas A. Wheat, Jr., Pro se.

Paige J. Schmittinger, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware for Unemployment Insurance Appeals Board.




Young, J.
Wheat v. UIAB
C.A. No.: K15A-12-002 RBY
July 1, 2016

                                      SUMMARY
       Thomas Wheat, Jr. (“Appellant”) appeals the decision of the Unemployment
Insurance Appeals Board (“the Board”) finding that he is disqualified from receipt of
unemployment benefits. The Board found that Appellant was discharged from his
employment for just cause and therefore was disqualified to receive the disputed
benefits. Because the Board’s decision is supported by substantial evidence and free
from legal error, the decision below is AFFIRMED.
                                          FACTS
       Appellant was employed b Dover Downs (“Employer”) from 2010 until his
discharge in 2015. Dover Downs (“Employer”) requires that employees report arrests
to a manager immediately, a rule which is outlined in the Employee Handbook.
Appellant was arrested on June 24, 2015 on criminal charges. Appellant chose not to
report his arrest immediately, in direct violation of the rules.
       Appellant also was required to report any arrest to the Delaware Division of
Gaming Enforcement (“Gaming Enforcement”) within three days time. On July 28,
2015, Appellant’s gaming license was suspended as a result of his arrest. Gaming
licensure is necessary for Appellant’s work with Employer. On August 1, 2015,
Employer terminated Appellant for failing to report his arrest according to the
requirements outlined in the Employee Handbook. Appellant filed for unemployment
insurance benefits on September 6, 2015. On September 21, 2015, a Claims Deputy
found that Appellant had been discharged for just cause and was disqualified from
receiving unemployment benefits.
       On October 7, 2015, a hearing was held before an Appeals Referee for the

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Wheat v. UIAB
C.A. No.: K15A-12-002 RBY
July 1, 2016

Board regarding the Appellant’s disqualification for unemployment benefits. There,
Employer’s Representative restated that Appellant failed to report his arrest, both to
Employer and to Gaming Enforcement.
       In his defense, Appellant asserted that he had reported his arrest to a security
manager with whom he felt comfortable speaking. The security manager
recommended that Appellant report his arrest to Employer. Appellant testified that
personal issues led him to delay reporting the arrest in an effort to retain his
employment and income. Additionally, Appellant stated that his gaming license had
been only suspended, not revoked, at the time he was terminated. Thus, Appellant
disputed any implication on Employer’s part that he could not return to work, since
it was possible that his license would be reinstated.
       In response, Employer’s Representative elicited Appellant’s acknowledgment
that Appellant had received and signed the Employee Handbook. The Representative
stressed how the rules provided Appellant notice that he was required to report his
arrest to his manager immediately. Further, the Representative clarified that notifying
simply any manager, such as the one Appellant spoke with, was insufficient.
       In closing, the Referee asked Appellant directly whether he told the security
manager that he was going to wait to report his arrest to Employer. Appellant
confirmed that he did.
       Following the hearing, the Appeals Referee issued a decision affirming the
Claims Deputy. The Referee indicated that Employer had met the preponderance
standard to show just cause existed for Appellant’s discharge. The decision was based
upon Appellant’s “undisputed...[and] acknowledged receipt of Employer’s policies.”

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Wheat v. UIAB
C.A. No.: K15A-12-002 RBY
July 1, 2016

Based on Appellant’s awareness of the rules, the Referee concluded that his behavior
constituted willful conduct in violation of his duty to Employer. As a result, Employer
had just cause to terminate Appellant. Therefore, Appellant was ineligible to receive
unemployment benefits.
       Appellant timely appealed the Referee’s decision, restating his position that
both his discharge and the review proceedings were unfair. On November 10, 2015,
the Board convened a hearing on the appeal. There, Appellant reasserted the
argument that Employer should not have fired him before he had a chance to resolve
his criminal charges, have his license reinstated, and report the events once settled.
Employer’s Representative opted to stand on the record below. The Board adopted
the Referee’s decision that Appellant was fired for just cause. Therefore, the Board
affirmed the Referee’s opinion, holding that Appellant was disqualified from
receiving unemployment benefits.
       Appellant appealed the Board’s decision to this Court on December 15, 2015.
Appellant listed his grounds for appeal as follows: 1) Employer was too harsh in it’s
decision to discharge Appellant; 2) Employer should have suspended Appellant in
lieu of termination; 3) Employer could have waited until the final outcome of
Appellant’s gambling licensure suspension prior to terminating him; and 4) Appellant
wants to receive his job back or to receive unemployment benefits.
       Appellant’s opening and reply briefs restated his grounds for appeal and
contended that Employer unfairly applies its’ rules to employees. The Board declined
to file an answering brief.



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Wheat v. UIAB
C.A. No.: K15A-12-002 RBY
July 1, 2016

                                    STANDARD OF REVIEW
         An appeal from an administrative board's final order to this Court is
restricted to a determination of whether the Board's decision is free from legal error
and supported by substantial evidence.1 “In reviewing the record for substantial
evidence, the Court will consider the record in the light most favorable to the party
prevailing below.”2 “The Court does not weigh the evidence, determine credibility or
make its own factual findings.”3 Questions of law are reviewed de novo.4 If there is
substantial evidence and no error of law, the Board’s decision will be affirmed, unless
the Board committed an abuse of discretion.5
                                            DISCUSSION
         Here, the facts support the repeated findings below that Employer had just
cause to discharge Appellant, who was therefore ineligible to receive unemployment
benefits. Appellant argues that Employer could have or should have treated him
differently, by either waiting or suspending him instead of terminating him
immediately upon discovery of his arrest. However, this Court cannot review


         1
         29 Del. C. § 10142(d); Wilson v. Breakers Hotel & Suites, 2010 WL 2562214 (Del.
Super. June 24, 2010).
         2
             Pochvatilla v. U.S. Postal Service, 1997 WL 524062, at *2 (Del. Super. June 9, 1997).
         3
        Bd. of Educ. of Capital Sch. Dist. v. Johns, 2002 WL 471175, at *2 (Del. Super. Mar.
27, 2002).
         4
         Am. Fed’n of State, County and Mun. Employees, Council 81 v. State Pub. Employees
Relations Bd., 2011 WL 2176113 (Del. Super. May 25, 2011).
         5
             See PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. Ct. June 18,
2009).

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Wheat v. UIAB
C.A. No.: K15A-12-002 RBY
July 1, 2016

hypothetical alternative factual outcomes.
      The only issue in this case is whether Appellant was discharged for just cause.
Employer’s rules in the Employee Handbook required reporting any arrest to an
employee’s direct manager immediately. Appellant confirmed that he received and
signed the Employee Handbook, thereby acknowledging the requirement.
Furthermore, Appellant clearly stated that he chose to delay reporting his arrest to
Employer, thus violating the rules. Based on the evidence, the Board found that
Employer had met its burden to prove that Appellant was discharged for just cause.
The Board’s findings are supported by substantial evidence and free from legal error.
                                   CONCLUSION
      For the foregoing reasons, the Board’s decision is AFFIRMED.
      IT IS SO ORDERED.
                                                 /s/ Robert B. Young
                                                            J.

RBY/lmc
Via File & ServeXpress
oc: Prothonotary
cc: Counsel
      Thomas A. Wheat, Jr. (via U.S. Mail)
      Opinion Distribution




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