                                         SUPERIOR COURT
                                             OF THE
                                       STATE OF DELAWARE

T. HENLEY GRAVES                                                 SUSSEX COU NTY C OUR THO USE
                      JUDGE                                              1 THE CIRCLE, SUITE 2
                                                                         GEORGETOWN, DE 19947
                                                                            TELEPHONE (302) 856-5257
                                        February 10, 2015

Gorettie Norgues                                    Paige J. Schmittinger
Pro se Appellant                                    Deputy Attorney General
610 S. Westover Drive                               Department of Justice
Salisbury, MD 21801                                 Carvel State Building
                                                    820 N. French Street
                                                    Wilmington, DE 19801

       RE:            Layfield v. Mountaire Farms of Delaware, Inc. C.A. No. S14A-05-
                      004 THG
Dear Parties:

Before the Court is an appeal from the Unemployment Insurance Appeals Board (“UIAB”) with

regard to claimant Gorettie Norgues’s (“Claimant”) denial of unemployment insurance benefits.

For the reasons that follow, the Board’s decision is AFFIRMED.

                        FACTS AND PROCEDURAL HISTORY
       Claimant was employed by Mountaire Farms (“Employer”) as a General Laborer from May

27, 2010 through December 10, 2013; she was a full-time employee and earned $11.50 per hour.1

Claimant worked in the “thigh d-bone” department at Employer.2 There, Claimant worked on a line

with 11 other employees.3 On the day of her termination, she was the last person on the line.4 The


       1
           R. at 52.

       2
           R. at 1.

       3
           R. at 87.

       4
           Id.

                                                1
last person on the line reviews the final product and makes sure that no chicken meat has any extra

bones or skin in and on it before packaging.5 Claimant was brought down to Employer’s Human

Resources office (“HR”) by her supervisor for an oral reprimand.6 According to Claimant, a piece

of chicken made it down the line with a bone, and she was singled out by her supervisor.7 Employer

claims Claimant was brought down to HR so they could use an interpreter8 to let her know what she

did wrong; this was the first time Employer ever had a problem with Claimant’s work performance.9

       Claimant was asked to sign a warning notice, which she refused. 10 She alleges that upon

refusal, she was asked for her employee identification (“ID”), which she was reluctant to turn over

out of fear of being terminated.11 She claims she was fearful due to alleged statements made by

others in her department along the lines of they “did not want an old lady on their team.”12

Employer, however, maintains that Claimant was only receiving an oral warning for her work

performance, but her reaction turned into a commotion, which ultimately resulted in her

termination.13

       When brought in to HR for her oral warning, Claimant started “going off,” cussing and


       5
           R. at 87-88.

       6
           R. at 53.

       7
           R. at 1; R. at 53.

       8
           It should be noted that Claimant only speaks Creole.
       9
           R. at 89.

       10
            R. at 53.

       11
            R. at 91.

       12
            Id.

       13
            R. at 92.

                                                  2
screaming at her supervisors, telling them to “kiss my ass” and referring to them as

“motherfuckers.”14 Claimant’s supervisors asked her to calm down and instructed her to give them

her ID as a result.15 She refused and continued to use profanity towards them.16 This tyraid carried

over into the hallway during a shift change, disrupting the flow of employee traffic.17 Several outside

prospective employees, who were waiting for interviews at Employer, also observed the scene

unfold.18 Claimant was eventually brought back into HR and told that she would be suspended from

work pending a company decision as to her termination.19 She was asked to sign paper work with

regard to her suspension, but she refused signature.20 Claimant was then asked to leave the building

and was escorted off the property after Employer threatened to call the police.21

       When Claimant was hired, she received copies of Employer’s employment police in both

English and Creole.22 Employer’s policy noted, specifically, that “[f]ighting or using obscene,

abusive, or threatening language or gestures,” and “[e]ngaging in insubordination, including refusal

to perform assignments,” were actions Employer found inappropriate.23 Employer’s policy also



       14
            R. at 88; R. at 24; R at 21.

       15
            R. at 21.

       16
            Id.

       17
            R. at 88.

       18
            R. at 26.

       19
            R. at 26.

       20
            Id.

       21
            R. at 28; 53.

       22
            R. at 57-66.

       23
            R. at 57.

                                                  3
states “[i]f your performance, work habits, overall disposition or conduct becomes unsatisfactory in

the judgment of [Employer], based on violations either of the above or any other [Employer] polices,

rules, or regulations, you will be subject to disciplinary action, up to and including termination.”24

Claimant signed an acknowledgment that she had received the policies and was aware what conduct

was acceptable and the range of disciplinary actions that could be taken.25

       Claimant filed for Unemployment Insurance Benefits on December 13, 2013.26 On December

23, 2013, Employer filed a separation notice, pursuant to 19 Del. C. §3317, explaining Claimant was

terminated for insubordination.27 As a result, the Claims Deputy (“Deputy”) denied Claimant

benefits, determining that she was discharged for just cause.28 Claimant timely appealed, pursuant

to 19 Del. C. §3318.29 The Claims Referee (“Referee”) affirmed the Deputy’s decision.30 Claimant

then filed a timely appeal to the UIAB, which affirmed the decision of the Referee.31 Claimant has

subsequently filed an appeal with this Court pursuant to 19 Del. C. §3323.32

                                STANDARD OF REVIEW
       When reviewing appeals from the UIAB, this Court examines only the record upon which



       24
            Id.

       25
            R. at 62-64.

       26
            R. at 1.

       27
            R. at 5.

       28
            R. at 8-9.

       29
            R. at 12.

       30
            R. at 54.

       31
            R. at 92.

       32
            R. at 97.

                                                  4
the UIAB relied in making its decision.33 The Court must ascertain whether the UIAB’s conclusions

are supported by substantial evidence and free from legal error.34 The necessary degree of evidence

is only “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”35 “To prevail on appeal, the appellant must show the Board committed an error of law

or demonstrate the findings of the Board are not supported by substantial evidence” in the record.36

Where a party with the burden of proof fails to convince the UIAB, the resulting factual findings can

only be overturned by the Court due to errors of law, inconsistences, or capricious disregard for

competent evidence.37 Evaluating the evidence, determining credibility issues, and deciphering

factual questions are not within the Court’s purview.38                 “Consequently, if there is substantial

evidence and no legal error, the court will affirm the Board’s decision.”39

                                         Discussion
         The Delaware General Assembly has determined that:

         [E]conomic insecurity due to unemployment is a serious menace to the health, morals
         and welfare of the people of [Delaware]. Involuntary unemployment is therefore a
         subject of general interest and concern which requires appropriate action by the
         General Assembly to prevent its spread and to lighten the burden which now so often
         falls with crushing force upon the unemployed worker and the worker’s family. . . .
         The General Assembly therefore declares that in its considered judgment the public


         33
              Burgos v. Perdue Farms, Inc., 2011 W L 1487 076, *2 (Del. Super. Apr. 19, 201 1).

         34
              Behr v. Unemployment Ins. Appeal Bd., 1995 WL 109026, *1 (Del. Super. Feb. 7,
1995).
         35
              Moss v. Mountaire Farms, 2014 WL 4933060, *2 (Del. Super. Sept. 29, 2014).
         36
              Behr, 1995 WL 109026 at *1.

         37
              Id.

         38
              Burgos, 2011 WL 1487076 at *2.

         39
              McCoy v. Occidental Chemical Corp., 1996 W L 1111 26, *3 (Del. Super. Feb. 7 1997 ).

                                                           5
        good and general welfare of the citizens of this State require the enactment of this
        measure.40

In recognizing the risk unemployment poses on the community, the General Assembly created an

“unemployment reserve” to be used for the benefit of workers who become unemployed through no

fault of their own.41

                                     Denial of Benefits
        Benefits from Delaware’s Unemployment Compensation Act (“the Act”) are “only available

to those involuntarily unemployed without just cause and those voluntarily unemployed for good

cause.42 As such:

        An individual shall be disqualified for benefits [f]or the week in which the individual
        was discharged from the individual’s work for just cause in connection with the
        individual’s work and for each week thereafter until the individual has been
        employed in each of 4 subsequent weeks (whether or not consecutive) and has earned
        wages in covered employment equal to not less than 4 times the weekly benefit
        amount.”43

In sum, an employee that has been fired for just cause is disqualified from receiving state benefits

for a specified period of time based on the subsequent wages she makes.

        Just cause to discharge an employee is defined as a “wilful or wanton act in violation of

either the employer’s interest, or of the employee’s duties or the employee’s expected standard of

conduct.”44 “Wilful or wanton conduct requires a showing that one was conscious of his conduct or

recklessly indifferent of its consequences; it need not necessarily connote bad motive, ill design or


        40
             19 Del. C. §3301.

        41
             Id.

        42
             Pow ell v. Autotote S ys., 1995 W L 4653 28, *2 (Del. Super. July 18, 1996).

        43
             19 Del. C. §3314 (2).

        44
             McCoy, 1996 WL 111126 at *3.

                                                            6
malice.”45 When the employer’s decision to terminate the employee rests on misconduct, the burden

lies with the employer to establish that misconduct.46

       An employee’s expected standard of conduct is relevant to determining whether there is just

cause for the discharge.47 As such, a violation of a reasonable company policy may constitute just

cause for termination as long as the employee is aware the policy exists and that discharge is a

possible consequence for its violation.48 The Court, in determining whether a violation of a company

policy is just cause for discharge, is required to go through the two step analysis outlined in Parvusa

v. Tipton Trucking Co., 1993 WL 562196 (Del Super. Dec. 1, 1993).49 The Court must determine:

“1) whether a policy existed, and if so, what conduct was prohibited and 2) whether the employee

was apprised of the policy, and if so how was he made aware.”50 “Knowledge of a company policy

may be established where there is evidence of a written policy, such as an employer’s handbook, .

. ., or where an employee had been previously warned regarding the objectionable conduct.”51

However, “the absence of advanced warning concerning the Consequences [sic] of given acts, as

opposed to notice of their impropriety, does not preclude a discharge for wilful misconduct.”52

                                           Procedural Framework


       45
            Id.

       46
            Id.

       47
            Coleman v. Dept. of Labor, 288 A.2d 28 5, 288 (De l. Super. 1972).

       48
            McCoy, 1996 WL 111126 at *3.

       49
            Id.

       50
            Id.

       51
            Id.

       52
            Coleman, 288 A.2d at 288.

                                                         7
       A former employee who was terminated for just cause may file a claim for benefits under the

Act. The General Assembly has established a due process framework by which the Department of

Labor (“Department”) must deny such an individual benefits under the Act.

       If the last employer timely files a completed separation notice in accordance with §
       3317 of this title and the employer’s statement on the separation notice does raise a
       potentially disqualifying issue as to the reason for the claimant’s separation, the claim
       shall be referred to a representative of the Department . . . (“the Claims Deputy”),
       who shall examine the claim and on the basis of the facts found by the Claims
       Deputy shall initially determine the individual’s qualification . . . and issue a
       determination in which it is determined whether or not such claim is valid.”53

The Claims Deputy’s determination becomes final unless either the Department or the claimant

appeal the decision to award or deny benefits within ten calendar days.54 If appealed, an appeals

referee, “after affording the parties reasonable opportunity for fair hearing,” will either affirm,

reverse, or alter the decision of the deputy.55 After the referee renders a decision, the parties are

given notice of the decision and the reason(s) for the outcome.56 The referee’s decision becomes

final unless either party appeals within 10 calender days of its rendering.57

       If appealed, the referee’s decision is reviewed by the UIAB.58 “The [UIAB] may on its own

motion, affirm, modify, or reverse any decision of [the referee] on the basis of the evidence

previously submitted to [the referee] or it may permit any of the parties to such decision to initiate



       53
            19 Del. C. §3318 (a).
       54
            19 Del. C. §3318 (b).

       55
            19 Del. C. §3318 (c).

       56
            Id.

       57
            Id.

       58
            Id.

                                                  8
further appeal before it.”59 The UIAB’s decision becomes final unless one of the parties appeals to

the Superior Court in the county where the claimant resides or where its former employer’s place of

business is located.60

                                         Application
       There are sufficient facts in the record demonstrating Claimant was terminated from

employment for just cause. Claimant was terminated for insubordination and using profanity

towards here supervisors. Employer’s company policy clearly states that use of profanity and

insubordination are grounds for discipline. The company policy also notes that discharge from

employment is a possible consequence for the violation of company policies. The record shows that

Claimant received Employer’s policy in both English and Creole and signed an acknowledgment that

she received and understood the policy.

       As stated above, a violation of a company policy can constitute just cause. Based on the

record, Employer had a standard of conduct, under those rules insubordination and profanity were

prohibited, and Claimant had actual notice of both what conduct was prohibited and the potential

consequences. Claimant’s verbal abuse of her supervisors in front of other employees and

prospective employees in response to them merely giving her an oral warning for accidentally

allowing a chicken bone to pass her on the line was in clear dereliction with Employer’s interest, and

her duties and expected standard of conduct as an employee. It is clear Claimant had a reckless

indifference for the consequences of her actions, which is exemplified through her objectionable

response to such a minute disciplinary action.



       59
            19 Del. C. §3320 (a).

       60
            19 Del. C. §33 23 (a).

                                                  9
       Claimant asserts two issues in her brief that the Court would like to briefly address. First,

Claimant declares she was deprived due process. Three separate tribunals, one of which is this

Court, have reviewed her file and record. Claimant took complete and full andvantage of her due

process rights by opting to hold two hearings at both the Referee and UIAB levels. She has received

a complete review of the record by this Court. Just because Claimant disagrees with the factual

determination that she was terminated for just cause and is not entitled to unemployment benefits

does not me her due process rights were violated.

       Lastly, Claimant declares that she was discriminated against by Employer based on her age,

her high blood pressure (i.e., disability), or both. This is not the proper avenue by which to assert

that claim. As such, the Court will not consider this claim.

                                         Conclusion
       Based on the several eyewitness accounts presented at the two hearings, and the fact that

Claimant received and acknowledged that she received Employer’s employment policy, Employer

has met its burden of proving Claimant’s misconduct constituted wilful and wanton conduct and that

her employment was terminated for just cause. Therefore, the Court AFFIRMS the decision of the

UIAB; Claimant was properly denied Unemployment Insurance Benefits.

                                              Very truly yours,



                                              /s/ T. Henley Graves



                                              T. Henley Graves




                                                 10
