IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

OCEAN LIMO
TRANSPORTATION, LLC

Appellant,
C.A. No. S l 6A-07-003 RFS

V.

SHEILA GRANT and

THE DIVISION OF
UNEMPLYMENT INSURANCE
APPEALS BOARD,

Appellee

MEMORANDUM OPINION

On Appealfrom the Decision ofthe Unemployment lnsurance Appeal Boara'.
Ajj’irmed.

Subrnitted: Maroh 28, 2017
Decided: May?), 2017

Anthony N. Delcollo, Esq., Cooch & Taylor, P.A., The Brandywine Building, 1000 West
Street, 10th Floor, P.O. Box 1680, Wilmington, Delaware 19899, Attorney for Appellant.

Carla A. K. Jarosz, Esq., Deputy Attorney General, Carvel State Office Building, 820
North French Street, 6th Floor, Wilmington, Delaware 19801, Attorney for Appellee,
Unemployment Insurance Appeal Board.

Victoria W. Counihan, Esq., Deputy Attorney General, Carvel State Oftice Building, 820
North French Street, 6th Floor, Wilrnington, Delaware 19801, Attorney for Appellee, Delaware
Department of Labor.

STOKES, J.
I. INTROI)UCTION

Ocean Lirno Transportation, LLC (“Ocean Limo”) has appealed the decision of the
Unemployrnent Insurance Appeals Board (“UIAB” or “Board”) to grant unemployment benefits
to Sheila Grant (“Grant”). For the reasons explained below, the decision is AFFIRMED.

1

II. FACTUAL AND PROCEDURAL HISTORY

Beginning on January 29, 2015, Ocean Limo employed Grant to drive Medicaid
recipients to and from medical appointments On January 18, 2016, her employment was
terminated after a routine drug screening conducted on January 15, 2016 returned a positive
result.l Ocean Limo’s employee policy provides that an employee “...agrees to provide Ocean
Limo Transportation, LLC with a current drivers’ license, social security card, passport (if
applicable), criminal record, Federal and State background check, motor vehicle driving record
and evidence of negative drug screens. Contractor [employee] agrees to submit to toxicology
(drug) screens randomly within two hours of request. . .”2

After being discharged, Grant sought unemployment benefits. A former employee is not
allowed to recover unemployment benefits if he or she has been terminated for cause.3 A UIAB
Appeals Referee addressed the question of whether Ocean Limo had sufficient just cause to
terminate Grant. On April 29, 2016, the Appeals Referee found that Ocean Limo had not shown
by a preponderance of the evidence that Grant was discharged for cause because sufficient
evidence relating to sample testing procedures and the chain of custody was not introduced.
Since Ocean Limo could not lay the proper foundation for the introduction of the drug test
results, the results of the test were considered hearsay evidence. The Appeals Referee pointed
out that Delaware courts have held that administrative tribunals may not base their decision
solely on hearsay evidence.4 Therefore, Grant was allowed to receive unemployment benefits.

Ocean Limo appealed the Referee’s decision to the UIAB. At the June 15, 2016 UIAB

hearing, Ocean Limo was again unable to lay the proper foundation to introduce the drug test

 

l Grant also submitted to a drug test on January 7, 2016. That test showed no evidence of drugs in her system.

2 R. at 45 (emphasis in original).

3 Murray v. Fibre, 2016 WL 4542739, at *2 (Del. Super. Ct. Aug. 30, 2016).

4 R. at 41 (citing Baker v. Hospital Billing & Collection Service, Lta'., 2003 WL 2153 8020, at *3 (Del. Super. Ct.

Apr. 30, 2003).

results. Therefore, on July 6, 2016, the Board found, for the same reasons as the Referee, that
Grant had been discharged without cause and could receive unemployment benefits The
Board’s decision became final on July 16, 2016. Ocean Limo filed a Notice of Appeal in this
Court on July 26, 2016, within the time limit to appeal.
III. STANDARD OF REVIEW

When this Court reviews a procedural decision of the UIAB, the Court must consider
whether the Board abused its discretion in rendering its decision.5 A procedural decision by an
administrative agency is not an abuse of discretion “unless it is based on clearly unreasonable or
capricious grounds” or the Board decision “exceeds the bounds of reason in view of the
circumstances and ignored recognized rules of law or practice so as to produce injustice.”6
Absent an abuse of discretion, the Court must affirm the Board’s judgment if it did not otherwise
commit an abuse of law.7

IV. DISCUSSION

In support of its appeal, Ocean Limo advances two arguments. First, it claims that the
UIAB committed an abuse of discretion when it did not stipulate to a remand. According to
Ocean Limo, even a superficial review of the hearing transcript shows that the company’s
representative did not understand the importance of presenting foundational evidence. Now that
Ocean Limo is represented by counsel, it would like a second opportunity to present Witnesses
and establish that the drug test is properly supported by such evidence. Second, Ocean Limo

believes that this Court should remand the decision to the Board in the interest of justice, even if

 

5 Wilson v. Franciscan Care Cem‘er, 2006 WL 1134779, at *1 (Del. Super. Ct. Feb. 15, 2006) (citing Funk v. UIAB,
591 A.2d 222, 225 (Del. 1991).

6 K-Mart, lnc. v. Bowles, 1995 WL 269872, at *2 (Del. Super. Ct. Jan. 26, 1995).

7 Funk v. UIAB, 591 A.2d 222, 225 (Del. 1991).

there was no abuse of discretion. Ocean Limo believes that it would be improper to allow a
person to recover unemployment benefits under “dubious circumstances.”8

A. Did the UIAB Abuse its Discretion in Failing to Stipulate a Remand?

An employee may not recover unemployment benefits if he or she Was discharged for
cause.9 The employer has the burden of meeting the just cause standard to show that the
employee is not entitled to the receipt of unemployment benefits.10 19 Del. C. § 3315(2) defines
just cause as “a willful or wanton act in violation of either the employer’s interest, or of the
employee’s duties, or of the employer’s expected standard of conduct.”ll This Court has
previously held that “a drug free workplace policy represents a standard of expected conduct,
and failure to abstain from drug use may provide just cause for termination.”12 However, the
Court also noted that the burden rested on the employer to show that the employee had indeed
used drugs in violation of the policy.13 Therein lies the rub. Ocean Limo was not able to present
adequate proof that Grant violated the drug use policy. Despite being instructed by the UIAB to
do so,14 Ocean Limo did not present the necessary sample testing procedure and chain of custody
evidence. Only the drug screening report was provided to the Board;15 no person Was available
to testify as to the validity of the testing process and lay the foundation necessary to admit the

results into evidence.16

 

8 Appellant’s Opening Br. at 5.
9 Murray v. Fibre, 2016 WL 4542739, at *2 (Del. Super. Ct. Aug. 30, 2016).
10
ld.
1119 Del. C. §3315(2).
12 Eas¢em Shore Poumy, lnc. v. Lewis, 2000 wL 703808, ar *2 (Dei. super. Ct. May 4, 2000).
13
ld.
14 R. at 66.
15 R. ar 48.
16 R. at 66.

As a result, all of the evidence relating to Grant’s supposed drug use was hearsay
evidence.17 Thus, the only evidence on which the Board could base its decision was hearsay
evidence. While the UIAB may follow relaxed rules of evidence, a ruling may not rest on
hearsay evidence alone.18 Therefore, Ocean Limo was found to have terminated Grant without
cause, allowing her continued receipt of benefits Now, Ocean Limo attempts to argue that,
since it is now represented by counsel, it understands the need to present foundational evidence
and should have the opportunity to revisit this issue. In short, Ocean Limo Would like to present
evidence from the processing lab to establish that the necessary procedures were followed.

The first argument is merely Ocean Limo’s attempt to get a second bite at the proverbial
apple. This is not permissible This Court has previously upheld decisions of the Board where
the employer was not allowed to rely on evidence of a positive drug screening because there was
not adequate evidence as to the sample taking procedures and chain of custody.19 This Court
must follow established precedent and allow the decision of the UIAB to stand. The Board did
not abuse its discretion by propounding an error of law or inconsistency or by demonstrating
capricious disregard for competent evidence, so there is no reason for the decision to be
overturned or remanded. To hold otherwise Would allow Ocean Limo to have another
opportunity to present evidence when no error has been made, which goes against the foundation
of this adjudicatory system.

Additionally, Ocean Limo cites Majed Subh v. UIAB as support for its belief that it
should now be able to present chain of custody evidence In Subh, the decision of the UIAB was

remanded because the pro se Appellant was found to have untimely appealed an overpayment

 

17 D.R.E 801; Brooks Armored Car Sewice, lnc. v. srollings, 1994 wL 233901, at *1 (Dei. super Ct. Apr. 28,
1994).

11Eas¢ern Shore Poulrry, lnc_ v. Lewis, 2000 wL 703808, at *2 (Dei. super. ct. May 4, 2000

19 Nissan v. Unemploymem lns. Appeal Bd., 2011 wL 3248746, at *2 (Dei. super. ct. Juiy 27, 2011); Easzem Shore
Poultry, Inc. v. Lewis, 2000 WL 703 808, at *2 (Del. Super. Ct. May 4, 2000); Brooks Armored Car Service, Inc. v.
Stollings, 1994 WL 233901, at *l (Del. Super. Ct. Apr. 28, 1994).

5

determination when there was contradictory evidence on the record showing that the
untimeliness of the appeal may have been caused by an error of the Department of Labor.20 Subh
is not analogous to the case at bar. Here, there is no allegation that there has been an error on the
part of the Department of Labor that could have contributed to the failure of Ocean Limo’s
appeal. Ocean Limo lost because it failed to present necessary evidence There is no room for
remand in this situation.

B. Shoula' Remana' be Granted in the lnterest of Justice?

In its second argument Ocean Limo advances the idea that, since there is a significant
possibility that Grant was driving Medicaid clients to and from appointments while marijuana
and cocaine were in her system, she should not be able to recover unemployment benefits
According to Ocean Limo, it would be improper for Grant to benefit from such “dubious
circumstances.”21 Furthermore, Ocean Limo fears that if Grant is allowed to benefit from her
wrongdoing other employees will be emboldened to violate the law or company policies under
the false belief that he or she will still be able to rely on unemployment benefits even if
terminated for his or her wrongful behavior. These arguments are not persuasive and do not
convince the Court to reconsider its decision to affirm the decision of the UIAB.

V. CONCLUSION
Considering the foregoing, the Board’s decision is AFFIRMED. Ocean Limo should have
called witnesses to establish the sample testing procedures and chain of custody evidence for the
drug screening lt declined to do so, risked disappointment, and should not be heard to complain

about the consequence

IT IS SO ORDERED.

 

20 Appellant’s Letter Reply Br., Ex. A at 15.
21 Appellant’s Opening Br. at 5.

