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


EMORY A. BRATCHER ,                         :
                                            :     C.A. No: K15A-03-001 RBY
                  Appellant,                :
                                            :
      v.                                    :
                                            :
UNEMPLOYMENT INSURANCE                      :
APPEALS BOARD,                              :
                                            :
                  Appellee.                 :


                             Submitted: August 3, 2015
                             Decided: August 14, 2015


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

                                     ORDER


Emory A. Bratcher, Pro se.

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




Young, J.
Bratcher v. UIAB
C.A. No.: K15A-03-001 RBY
August 14, 2015

                                  SUMMARY
      The present appeal arises out of the holding of the Unemployment Insurance
Appeals Board (“the Board”), disqualifying Emory Bratcher (“Appellant”) from
receiving unemployment insurance benefits. Appellant had been previously
employed by Delstar Technologies, Inc. (“Appellee”), prior to being terminated on
October 20, 2014. Appellant had exceeded company policy regarding late
arrivals/absences, and had been warned, in writing, of the consequences of
continuing in this tardy conduct on, at least, two occasions.
      Reviewing the decision of the Appeals Referee, the Board affirmed the
finding that Appellant’s termination had been for just cause, as per 19 Del. C. §
3314(2), making him ineligible for unemployment benefits. The Court finds that
the Board’s decision was properly founded in substantive evidence and was free
from legal error. The decision of the Board is AFFIRMED.
                   FACTS AND PROCEDURAL POSTURE
      Appellant was employed by Appellee, from July 3, 2013 to October 20, 2014,
as an operator. During his employment period, Appellant received two written notices
concerning his repeated lateness and absenteeism, one on September 23, 2013, and
one on April 29, 2014. The latter notice included a two day suspension as a result of
Appellant’s behavior. Both notices included a statement of the company’s policy
concerning absenteeism. Following the suspension, four additional instances of
tardiness occurred. On October 20, 2014, by written notice, Appellant was
terminated. Appellant claims that the incidents following the suspension were as a
result of three deaths in his family, the passing of his father and his two uncles.

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Bratcher v. UIAB
C.A. No.: K15A-03-001 RBY
August 14, 2015

Appellant further claims his supervisor approved the time off.
       On November 14, 2014, the Department of Labor (“Department”) issued a
determination that Appellant was disqualified from receiving unemployment
insurance benefits, pursuant to 19 Del. C. § 3314(2), as he had been discharged by
Appellee, for just cause. Appellant appealed this determination to the Appeals
Referee (“Referee”). On December 9,2014, following a hearing on the matter, the
Referee affirmed the determination of the Department, finding that, as Appellant had
continued in his tardy behavior, despite continued admonition from Appellee, his
insubordination rose to the level justifying termination, under 19 Del. C. § 3314(2).
On Appeal, the Board affirmed the decision of the Referee, on January 28, 2015, for
much the same reasons:
    The Referee concluded, and the Board agrees, that Employer had just cause
    in terminating Claimant. It is undisputed that Claimant was in violation of
    Employer’s attendance policy. In light of the foregoing, the Board will adopt
    the Referee’s decision as its own.1
                                    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.2
Substantial evidence is that which “a reasonable mind might accept as adequate to
support a conclusion.”3 It is “more than a scintilla, but less than preponderance of the

       1
           Board’s Opinion, at 2.
       2
           29 Del. C. §10142(d); Avon Prods. v. Lamparski, 203 A.2d 559, 560 (Del. 1972).
       3
      Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. Ct. 1981) (citing Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)).

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Bratcher v. UIAB
C.A. No.: K15A-03-001 RBY
August 14, 2015

evidence.”4 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.”5 Where an
agency has interpreted and applied a statute, the court’s review is de novo.6 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.7
                                         DISCUSSION
       Where an employee is terminated for just cause, 19 Del. C. § 3314(2) provides
this employee will be disqualified from receiving unemployment benefits. In
analyzing whether Appellant’s termination was for just cause, the Board must
determine whether Appellant engaged in “a willful or wanton act or pattern of
conduct in violation of the employer’s interest, employee’s duties, or the employee’s
expected standard of conduct.”8 “Wanton connotes a heedless, malicious or reckless
act, but does not require actual intent to cause harm.”9 Willful “implies actual,


       4
           Id. (quoting Cross v. Calfano, 475 F.Supp. 896, 898 (M.D. Fla. 1979)).
       5
        Delaware Transit Corp. v. Roane, 2011 WL 3793450, at *5 (Del. Super. Ct. Aug. 24,
2011) (quoting Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at *2 (Del. Super. Ct. Apr.
30, 2009).
       6
           Lehman Brothers Bank v. State Bank Commissioner, 937 A.2d 95, 102 (Del. 2007).
       7
           Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998).
       8
          Majaya v. Sojourner’s Place, 2003 WL 21350542, at *4 (Del. Super. Ct. Jun. 6, 2013)
(internal quotations omitted).
       9
        Boughton v. Div. of Unemployment Ins. Of Dept. Of Labor, 300 A.2d 25, 26 (Del.
Super. Ct. 1972).

                                                 4
Bratcher v. UIAB
C.A. No.: K15A-03-001 RBY
August 14, 2015

specific or evil intent.” 10 “Violation of a reasonable company rule may constitute just
cause for discharge if the employee is aware of the policy and the possible subsequent
termination.”11 “Knowledge of a company policy may be established by...previous
warnings of objectionable conduct.”12
         It is not the role of this Court to act as fact-finder in an appeal from an
administrative board.13 The decision of the Board is to be affirmed, unless the Court
concludes that its opinion is against the great weight of evidence.14 The Court finds
that the Board properly investigated the sources of evidence presented it, basing its
decision on substantial evidence. Courts interpreting 19 Del. C. § 3314(2) have found
that, where a policy is in place, of which the employee is aware, and yet, the
employee proceeds to violate this policy, such insubordination rises to the level to
support just cause for termination.15 The Board, in the instant matter, affirmed the
Referee’s finding of just cause for termination as “[i]t is undisputed that claimant was
in violation of Employer’s attendance policy.”16 Indeed, this finding was based upon


         10
              Id.
         11
          Wilson v. Unemployment Ins. Appeals Bd., 2011 WL 3243366, at *2 (Del. Super. Ct.
Jul. 27, 2011).
         12
              Id.
         13
              Bernhard v. Phoenix Mental Health, 2004 WL 304358, at *1 (Del. Super. Ct. Jan. 30,
2004).
         14
              Hall v. City of Wilmington, 1978 WL 186829, at *2 (Del. Super. Ct. Jan. 27, 1978).
         15
              Wilson, 2011 WL 3243366 at *2.
         16
              Board’s Opinion, at 2.

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Bratcher v. UIAB
C.A. No.: K15A-03-001 RBY
August 14, 2015

the Record, which included, among other things, two written notices stating the
employer’s attendance policy and Appellant’s violation of it. Although, as Appellant
claims, some of the later absences may have been as a result of family tragedy and,
thus, permitted, the vast majority were not. Moreover, it was within the Board’s
discretion to “weigh the evidence presented and resolve conflicting testimony and
issues of credibility.”17 Given this, the Board had, precisely, the requisite amount of
evidence to affirm the decision of the Referee, given the “just cause”scheme
recognized by the case law.
      In addition, the Board grounded its disqualification of Appellant upon the
governing statue 19 Del. C. § 3314(2). Where there is just cause for discharge, an
applicant is ineligible for unemployment benefits. Finding that the termination was
just, the Board properly followed the call of the statute in denying Appellant’s
application for benefits. The Court finds no error of law in the Board’s determination.
                                     CONCLUSION
      From the extensive record, the Board, in its permitted discretion, concluded
that Appellant’s repeated absenteeism was in direct violation of his employer’s
explicitly conveyed policy. This was a reasonable finding based upon substantial
evidence. Moreover, the ultimate decision to disqualify Appellant from receiving
unemployment benefits was based upon the controlling statute, and, hence, free from
legal error. The decision of the Board is AFFIRMED.




      17
           Bernhard, 2004 WL 304358, at *1.

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Bratcher v. UIAB
C.A. No.: K15A-03-001 RBY
August 14, 2015

      IT IS SO ORDERED.
                              /s/ Robert B. Young
                                         J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Emory Bratcher, Pro se
     Opinion Distribution
     File




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