    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


KATHY LAKE,                                 )
                                            )
                      Appellant,            )
       v.                                   )       C.A. No. N15A-05-006 RRC
                                            )
DOMINION MANAGEMENT                         )
SERVICE OF DELAWARE and                     )
UNEMPLOYMENT                                )
INSURANCE APPEAL BOARD,                     )
                                            )
                      Appellee.             )

                          Submitted: December 21, 2015
                            Decided: March 14, 2016

On Appeal from a Decision of the Unemployment Insurance Appeal Board.
                                   AFFIRMED.

                                       ORDER

Kathy Lake, Willingboro, New Jersey, pro se, Appellant.1

Dominion Management Services of Delaware, 705 N. DuPont Highway,
Dover, Delaware, Appellee.

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


1
 Appellant Kathy Lake filed the only brief in this case. The Unemployment Insurance
Appeal Board filed a letter with this Court asserting that it takes no position and would
not file an answering brief unless directed to by the Court. Despite being served process
on June 1, 2015; provided with a Briefing Schedule on July 21, 2015; and sent a Final
Delinquent Notice on September 22, 2015, Appellee Dominion Management Services of
Delaware, Inc. did not file an Answering Brief with this Court. Therefore, pursuant to
Superior Court Civil Rule 107(f), the Court will make a determination of the issue on the
papers which have been filed.
COOCH, R.J.

    This 14th day of March, 2016, on appeal of a decision from the
Unemployment Insurance Appeal Board, it appears to the Court that:

    1. On November 17, 2014, a notice of wage garnishment was served on
       Dominion Management Services of Delaware instructing it to
       withhold a portion of Appellant Kathy Lake’s wages.2 Lake was
       discharged from Dominion Management after she removed the notice
       of wage garnishment and took it home without permission.3

    2. The Unemployment Insurance Appeal Board affirmed a decision of
       the Appeals Referee that held Lake was terminated from her
       employment for just cause and not entitled to unemployment benefits.
       Specifically, the Board found that Lake removed the document in
       error, failed to discuss the document with her employer when she
       returned to work, and Dominion Management met its burden of
       proving by a preponderance of evidence that Lake was terminated for
       just cause.4

    3. Lake asserts three grounds why this Court should reverse the decision
       of the Board. First, Lake contends that a “spokesperson from
       Dominion Management refuse[d] to present the most important piece
       of evidence in [Lake’s] case, which [was] the video[]tape from the
       camera located in the front office.”5 Lake asserts that the videotape
       shows that she did not remove the garnishment notice from her
       manager’s desk.6 Instead, the video shows that she was handed the
       papers by a coworker. 7

    4. Second, Lake contends that the Board improperly denied her an
       adequate opportunity to rebut the testimony from Dominion
       Management’s representative.



2
  R. at 14.
3
  Id. at 79.
4
  Id.
5
  Appellant’s Opening Br. at 1.
6
  Id.
7
  Id.


                                      2
    5. Third, Lake asserts that one of the Board members “was a very elderly
       man who[] was sleeping the majority of the time and could not have
       possibly rendered any fair comments.”8

    6. This Court’s review of a Board decision is limited to whether the
       Board’s determination is supported by substantial evidence and free
       from legal error.9 Substantial evidence requires “such relevant
       evidence as a reasonable mind might accept as adequate to support a
       conclusion.” 10 It is within the province of the Board, not this Court,
       to weigh evidence or make determinations based on credibility or
       facts. 11 Reversal based on an abuse of discretion will be granted only
       if “the Board acts ‘arbitrarily or capriciously’ or ‘exceeds the bounds
       of reason in view of the circumstances and has ignored recognized
       rules of law or practice so as to produce injustice.” 12

    7. Individuals who are discharged for just cause and not eligible for
       unemployment benefits.13 When an employee is discharged, the
       employer has the burden of proving just cause by a preponderance of
       evidence.14 “Just cause” is ‘“a willful or wanton act or pattern of
       conduct in violation of the employer’s interest, the employee’s duties,
       or the employee’s expected standard of conduct.”’15 Just cause also
       ‘“includes notice to the employee in the form of a final warning that
       further poor behavior or performance may lead to termination.”’16
       However, under certain circumstances the discharged employee is not
       entitled to any warning before termination. 17

8
  Id. at 2.
9
  Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del. 1981).
10
   Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)
(citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
11
   Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
12
   Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at * 2 (Del. Super. Apr. 30,
2009) (citing Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 652 (Del. Super.
1973); Nardi v. Lewis, 2000 WL 303147, at *2 (Del. Super. Jan. 26, 2000)).
13
   19 Del. C. § 3314(2).
14
   McGee v. Amazon.com, 2013 WL 656243, at* 3 (Del. Super. Jan. 31, 2013).
15
   Id. (citations omitted).
16
   Id. (citations omitted).
17
   Short v. Unemployment Ins. Appeal Bd., 513 A.2d 1319, 1986 WL 17127, at* 1 (Del.
July 30, 1986) (“[U]nder the circumstances, the appellant was not entitled to a warning
before he was discharged.”); Ferrante v. Delaware Park Casino, 2015 WL 1201519, at*
5 (Del. Super. Mar. 12, 2015) (holding that an employee who was discharged for picking


                                           3
   8. In spite of Lake’s attempt to show that this is all a misunderstanding,
      there is substantial evidence to support that the Board’s finding that
      Dominion Management had just cause to terminate her employment.
      The Board listened to testimony from Lake and from a representative
      of Dominion Management and determined the representative’s
      testimony was credible. 18 The Board also found that Lake improperly
      removed a document from her workplace that directed her employer
      to garnish her wages. Lake then failed to discuss the document with
      her manager when she returned to work the following day.

   9. Substantial evidence supports the Board’s conclusions. First, Lake
      admits to taking the document from her workplace and bringing it
      home. 19 Lake also admits that she never discussed the document with
      her manager when she returned to work.20 Therefore, in light of
      Lake’s admissions, the Board has not acted arbitrarily and
      capriciously, or exceeded the bounds of reason in making its
      determination.

   10.Furthermore, the positions that Lake asserts as grounds for this Court
      to reverse the Board’s decision are unpersuasive. First, Lake asserts
      that a videotape that “clearly shows” she did not take the document
      from her manager’s desk. However, Lake admitted that she has never
      seen the videotape.21

   11. Next, Lake contends that she was not allowed to confront Dominion
      Management’s representative about testimony she felt was incorrect.
      However, Lake was permitted to testify about her version of the
      events.22 She was then asked questions by the members of the
      Board. 23 And, after Dominion Management’s representative testified,
      Lake was permitted to ask the Board a question and the representative

up a one-hundred-dollar bill off the casino floor, but only turned in a twenty-dollar bill to
a security officer was not entitled to a warning that future dishonest behavior may lead to
termination).
18
   R. at 79.
19
   Id. at 66.
20
   Id. at 67.
21
   Id. at 63-65.
22
   R. at 60-62.
23
   Id. at 62-65.


                                              4
          was instructed to answer it.24 Lake took that opportunity to ask her
          “number[-]one question and only question.” 25 Given Lake’s
          opportunity to testify about her version of the events; inquiry from the
          members of the Board about her testimony; and the Board allowing
          her to ask her “only question” for the representative, she was afforded
          a meaningful opportunity to be heard. Therefore, her second claim
          lacks merit.

      12.Finally, Lake asserts that one unidentified Board member was asleep
         during the hearing. Lake does not offer any evidence for her
         accusation. The Court finds that this claim is conclusory and lacks
         merit, because Lake has failed to offer any evidence supporting her
         claim.

Therefore, the Board’s decision is AFFIRMED.

IT IS SO ORDERED.


                                                      ______________________
                                                        Richard R. Cooch, R.J.

oc:       Prothonotary
cc:       Unemployment Insurance Appeal Board




24
     Id. at 74-75.
25
     Id. at 75.


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