IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARIE A. MONDESTIN, :C.A. No. S19A-07-004
Appellant, :
V.

PERDUE FOODS, LLC

and

UNEMPLOYMENT INSURANCE :
APPEAL BOARD,

Appellees.
Submitted: October 16, 2019
Decided: October 28, 2019
On Appeal from the Unemployment Insurance Appeal Board
AFFIRMED

MEMORANDUM DECISION AND ORDER

Marie A. Mondestin, pro se, 7753 Gaye Drive, Seaford, DE, 18873, Appellant.

Aleeshia Belle, Human Resources, Perdue Foods, LLC, P.O. Box 283, Saint Louis,
MO, 63166, Appellee.

Daniel C. Mulveny, Esquire and Victoria W. Counihan, Esquire, Delaware
Department of Justice, 820 North French Street, Wilmington, DE, 18901,
Attorneys for Appellee, Unemployment Insurance Appeal Board.

KARSNITZ, J.
1. INTRODUCTION

Marie A. Mondestin (“Appellant”) appeals the decision of the
Unemployment Insurance Appeal Board (the “Board’’) that found she had been
discharged from her place of employment for just cause in connection with that
employment and was therefore disqualified from receiving unemployment
insurance benefits. The Board’s decision is affirmed for the reasons stated
below.

Il. PROCEDURAL HISTORY

Appellant was employed by Perdue Foods, LLC (“Employer”) as a
General Laborer in the Ground Chicken Department from November 1, 2016
until she was terminated on February 27, 2019. A Claims Deputy in the
Delaware Department of Labor, Division of Unemployment Insurance,
reviewed Appellant’s application for unemployment benefits and determined
that she had been terminated for just cause and was not qualified for
unemployment insurance benefits. Appellant appealed that determination and a
hearing was held before an Appeals Referee on April 23, 2019. The Appeals

Referee reversed! the Claims Deputy's determination, deciding that Appellant

 

' There is an apparent error in the Appeals Referee’s Decision, which states that the decision of the
Claims Deputy is affirmed. This cannot be accurate given the stated decision of the Appeals
Referee.
was dischansed without just cause and was qualified for unemployment
insurance benefits. Employer then appealed to the Board, which held a hearing
on June 12, 2019. Counsel for the Board and a representative of
Employer were present; Appellant was not present. By way of written
decision mailed July 16, 2019, the Board reversed the Appeals Referee's decision,
finding Employer had terminated Ms. Smith's employment for just cause and
concluding that Appellant was not entitled to unemployment benefits. Appellant

now appeals to this Court.
Ill. STANDARD OF REVIEW

When reviewing the decisions of the Board, I must determine
whether the Board's findings and conclusions of law are free from legal
error and are supported by substantial evidence in the record.” "Substantial
evidence" is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."> My review is limited: "It is not the
appellate court's role to weigh the evidence, determine credibility questions

or make its own factual findings, but merely to decide if the evidence is

 

* Unemployment Insurance Appeal Board y. Martin, 431 A.2d 1265 (Del. 1981);
Pochvatilla v. U.S. Postal Serv., 1997 WL 524062 (Del. Super.); 19 Del. C. § 3323(a) ("In
any judicial proceeding under this section, the findings of the [Board] as to the facts, if
supported by evidence and in the absence of fraud, shall be conclusive, and the

jurisdiction of the Court shall be confined to questions of law.").
> Gorrell y. Division of Vocational Rehab., 1996 WL 453356, at *2 (Del. Super.).
legally adequate to support the agency's factual findings."*
IV. APPLICABLE LAW
Just Cause

Section 3314 of Title 19 of the Delaware Code provides, in pertinent
part, that one shall be disqualified for unemployment benefits if she has been
"discharged from [her] work for just cause in connection with [herl work.>
"Generally, the term ‘just cause’ refers to a willful or wanton act in violation of
either the employer's interest, or of the employee's duties, or of the employee's
expected standard of conduct."® “Wanton” connotes a “heedless, malicious or
reckless act, but does not require actual intent to cause harm.”’ In contrast,
“willful” “implies actual, specific or evil intent.”® “Willful and wanton conduct
is that which is evidenced by either conscious action or reckless indifference
leading to a deviation from established and acceptable workplace performance;
it is unnecessary that it be founded in bad motive or malice.”

Violation of a reasonable company policy may constitute just cause for

 

* McManus v. Christiana Serv. Co., 1197 WL 127953, at *1 (Del. Super.).

>19 Del. C § 3314(2).

° Abex Corp. v. Todd, 235 A.2d 271, 272 (Del. Super. 1967).

" Boughton v. Division of Unemployment Insurance of Department of Labor, 300 A.2d 25, 26
(Del. Super. Nov.21, 1972) (citing Law v. Gallagher, 9 W.W. Harr. 189, 197 A.2d 479 (Del.
1938)).

® Boughton, 300 A.2d at 26.

° MRPC Financial Management LLC vy. Carter, 2003 WL 21517977, at *4 (Del. Super. Feb. 7,
1996).
termination, provided the employee is aware of the policy and the fact that

termination may result for the violation thereof.'? Knowledge of a company

policy may be established by evidence of a written policy, i.e., an employer's

handbook.'!
Burden of Proof

Employer has the burden of proving that Appellant was terminated for

“just cause” by a preponderance of the evidence.'? A “‘preponderance of the

evidence’ has been defined to mean the side on which ‘the greater weight of
evidence is found.’”!?

Vv. FACTS

The key fact in dispute in this matter is whether Appellant threw a

valuable piece of Employer’s property on the floor against company policy, or

whether the object fell on the floor by accident as Appellant was cleaning her

workspace. The Appeals Referee reversed the Claims Deputy’s finding on this

fact because there was no first hand testimony at the Appeal Referee’s hearing

on this fact — only hearsay. The Appeal Referee correctly stated that she could

 

'° Burgos v. Perdue Farms, Inc., 2011 WL 1487076, at *2 (Del. Super.).

1! Tq.

° Wilson v. Unemployment Insurance Appeal Board, 2011 WL 3243366, at *2 (Del. Super. July
27, 2011) (citations omitted); McCoy v. Occidental Chem. Corp., 1996 WL 111126, at*3 (Del.
Super.).

' Taylor v. State, 748A.2d 914, 914 (Del. 2000).
not base her decision solely on hearsay evidence.'*. However, at the Board
hearing with regard to Appellant’s claim for benefits, a witness with first-hand
knowledge came forward and testified that Appellant had deliberately thrown
the object on the floor.'? In Unemployment Insurance Appeal Board v. Martin,
431 A.2d 1265 (Del. 1981) (see footnote 14), a referee had relied solely on
hearsay evidence in coming to a decision adverse to a claimant. On appeal to
the Board, the Board remanded the case to the referee for a rehearing with first-
hand testimony. Such competent evidence was received at the rehearing, and
upon another adverse decision the claimant appealed to the Superior Court,
which reversed the Board. The Delaware Supreme Court reversed the Superior
Court and upheld the Board decision, stating (at 1269):

“Claimants also argue that the administrative decision should be reversed
because the referee admitted certain hearsay evidence relating to the
discussions between claimants and management personnel on the day in
question and relied on this evidence in rendering his decision. Although
it appears that such evidence was admitted and relied upon by the referee
in his first hearing and decision, it is clear that any error committed
thereby was cured during the remand to the referee after the first hearing
before the Board. Specifically, the Board remanded the case to the referee
with instructions that the supervisor involved in the incident, whose

 

'* See, e.g., Geegan v. Unemployment Compensation Commission, 45 Del. (6 Terry) 513, 76 A.2d
116 (Super. 1950); Unemployment Insurance Appeal Board v. Martin, 431 A.2d 1265 (Del. 1981);
Goldsmith v. Unemployment Insurance Appeal Board, 1982 WL 591942 (Del. Super. March 9,
1982), where the Court held that consideration of hearsay evidence by the Board is not fatal if it is
coupled with other competent evidence.

'S In her handwritten appeal to this Court, Appellant accuses the witness of lying. However,
Appellant chose not to appear at the Board hearing in order to cross-examine the witness and
otherwise question the veracity of the witness.
version of the facts had originally been introduced through hearsay
evidence, be produced in person to testify from his own memory as to the
facts in dispute. The record shows that the supervisor did testify in person
at the second hearing before the referee, and that the referee's and the
Board's ultimate findings were based on this live testimony. Therefore,
even though inadmissible hearsay was permitted and relied upon in the
first referee hearing and decision, this error was adequately cured at the
second referee hearing.”

In this case the non-hearsay, direct evidence was before the Board and is in
the record of the hearing.

Unfortunately for Appellant, the record reflects a factual dispute that
involved the credibility of witnesses, a dispute that the Board clearly
resolved against Appellant. That resolution is binding on this Court.'®

The record further shows that Employer had a company policy

prohibiting such conduct, and Appellant was aware of that policy.

These facts, taken together with the Board's binding credibility

determination, lead me to conclude the Board's decision was supported by

substantial evidence and free from legal error.

 

' Starkey v. Unemployment Insurance Appeal Board. 340 A.2d 165, 167 (Del. Super. 1975).
VI. CONCLUSION
The Board's decision finding that Appellant was terminated for just cause
in connection with her employment, and is not entitled to unemployment

insurance benefits, is AFFIRMED.

IT IS SO ORDERED.

Crai oA. Koarsite, Judge"

oc: Prothonotary

cc: Marie A. Mondestin

Unemployment Insurance Appeal Board
Perdue Foods, LLC
