           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


YOLANDA BOUYER-BELLO,       :
                            :
             Appellant,     :                      K17A-09-004 JJC
                            :
             v.             :
                            :
TRICELL COMMUNICATIONS, LLC :
                            :
             &              :
                            :
UNEMPLOYMENT INSURANCE      :
APPEAL BOARD,               :
                            :
             Appellees.     :

                                     ORDER

                           Submitted: February 5, 2018
                            Decided: March 12, 2018

 Upon Consideration of Appellant's Appeal from the Unemployment Insurance
                        Appeal Board—AFFIRMED

      AND NOW TO WIT, this 12th day of March, 2018, upon consideration of
the record and the briefing by the parties, IT APPEARS THAT:
      1.     Before the Court is the pro se appeal of Appellant Yolanda Bouyer-
Bello (hereinafter “Appellant”) from the decision of the Unemployment Insurance
Appeals Board (hereinafter “the Board” or “the UIAB”). The appeal involves
Appellant’s unemployment compensation allegedly due after her termination by her
employer Tricell Communications LLC (hereinafter “Tricell”).
      2.     Specifically, she appeals a UIAB determination that she was terminated
from her employment with just cause pursuant to 19 Del. C. § 3314(2). As relevant
background, after a June 14, 2017 hearing, an Appeals Referee for the Division of
Unemployment Insurance (hereinafter “Referee”) found that Tricell terminated
Appellant for just cause. The Referee based this determination primarily on the
testimony of a Tricell District Manager (hereinafter “District Manager”), who
testified that Appellant left the store unmanned and was found at the back exit
smoking a cigarette doused with embalming fluid. The District Manager testified
that Appellant appeared intoxicated, and that when she asked whether the Appellant
was high, the Appellant smiled and nodded affirmatively.
         3.     Appellant appealed the Referee’s determination, and on September 13,
2017 the UIAB held a hearing. At the hearing, Appellant disputed that she admitted
to the District Manager that she was intoxicated.             In its decision, the UIAB
considered evidence presented to the Referee, the Referee’s decision, and evidence
presented at the September 13, 2017 hearing. That evidence included the employer’s
policy prohibiting employees from working under the influence of drugs or alcohol.
Based on the totality of the evidence, the Board affirmed the decision of the Referee
that Appellant was discharged for just cause.
         4.     Pursuant to 19 Del. C. § 3323(a), the Superior Court's jurisdiction is
limited to a review for errors of law, together with a limited factual review. Namely,
the review is “limited to the question of whether there is substantial evidence in the
record to support the Board's findings and whether such findings are free from legal
error. In such an appeal, this Court does not weigh the evidence, determine questions
of credibility, or make its own factual findings.”1 The burden is on the employer to
prove termination for just cause by a preponderance of the evidence. 2
         5.     Here, the Board applied the correct legal standard below. Namely,
pursuant to 19 Del. C. § 3314 an employee is ineligible to receive unemployment

1
    Murphy & Landon, PA v. Pernic, 121 A.3d 1215, 1222 (Del. 2015).
2
    Id.
                                               2
benefits if he or she has been terminated for just cause.3 The term just cause denotes
a willful or wanton act in violation of either the employer's interest, or the employee's
expected standard of conduct. 4 Willful or wanton conduct is that which is evidenced
by either conscious action, or reckless indifference leading to a deviation from
established and acceptable workplace performance.5
       6.     After reviewing the record, the Court finds substantial evidence that
Tricell terminated Appellant for just cause. The UIAB found that the District
Manager testified credibly that the Appellant appeared to be intoxicated, had left the
store unattended, and admitted to using drugs. Although Appellant denied admitting
to drug use, the Board found the District Manager’s testimony to be more credible.
Pursuant to 19 Del. C. § 3323(a), this Court performs only a limited factual review.
Credibility assessments of testifying witnesses are appropriately left for the finder
of fact, which in this case is the administrative agency. Here, a review of the record
reveals no facts sufficient to warrant departing from the Board’s decision.
       NOW THEREFORE, for the reasons cited, the Board's decision is
AFFIRMED.
       IT IS SO ORDERED.
                                                                /s/Jeffrey J Clark
                                                                      Judge


JJC:jb
Via File & Serve Xpress




3
  Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. Ct. July 27,
2011) (citations omitted).
4
  Id.
5
  Id.
                                              3
