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


AUSTIN BROWN,                            :
                                         :     C.A. No: K13A-12-001 (RBY)
            Appellant,                   :
                                         :
     v.                                  :
                                         :
DOVER DOWNS,                             :
                                         :
            Appellee.                    :



                           Submitted: July 1, 2014
                           Decided: July 22, 2014


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

                                  ORDER


Austin Brown, Pro se.

Catherine Damavandi, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware for Unemployment Insurance Appeal Board.




Young, J.
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

                                     SUMMARY
      This is an appeal from a decision of the Unemployment Insurance Appeal
Board (“the Board”) denying unemployment benefits to Austin Brown (“Appellant”),
a former employee of Dover Downs Casino (“Dover Downs” or “Employer”).
Appellant was terminated for violating Employer’s policy by taking unauthorized
breaks, and for falsifying company records. On appeal, Appellant challenges the
Board’s decision on the ground that his hospital discharge documents, showing proof
of his medical condition, were missing from his appeal before the Board.
      The hospital discharge documents, which Appellant seeks to introduce into
evidence before the Board, dated after June 13, 2013, the day in question, are not
pertinent to the question of law posed. Appellant's prior performance issues,
inconsistent testimony, and misconduct on June 13, 2013, provided sufficient just
cause to discharge Appellant from his employment. Therefore, the decision of the
Board is AFFIRMED.
                    FACTS AND PROCEDURAL POSTURE
      Appellant worked as a security guard for Employer from May 26, 2010 until
June 28, 2013 when he was discharged for taking unauthorized breaks, and falsifying
company records. Appellant worked full-time making $10.58 per hour. On June 13,
2013, Appellant’s break was scheduled for 2:40 am until 3:20 a.m. Appellant
allegedly felt ill, so he went upstairs for his break at 2:06 a.m., and ordered food. He
took his food into “the quiet room” to eat. At 2:40 a.m., Appellant swiped his badge
at the time clock, and proceeded back into the quiet room to eat. Appellant left the
quiet room at 3:39 a.m., went to the time clock, and again swiped his badge, this time

                                           2
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

at 3:40 a.m.
      After returning to the gaming floor of Dover Downs, Appellant advised his
supervisor that he had taken an extended break. Appellant asked if he could clock out,
and then continue to work so that he could make up the time. Appellant’s supervisor
advised him to complete a missed punch form to correct his time. Appellant
completed the missed punch form, indicating that he clocked out at 2:40 a.m. for
lunch, and missed swiping back in 3:20 a.m.
      The Employee Handbook provided by Employer lists falsification of company
records or reports as inappropriate conduct. On January 22, 2013, Appellant signed
the “Acknowledgment of Employment and Employee Handbook.” Appellant received
a final written warning with suspension on February 26, 2013 for performance issues.
Employer also granted Appellant ADA accommodations for his diabetes. Employer
allowed Appellant to take small breaks, when needed, to get a drink or snack, and to
administer his medication, as long as he informed his supervisor. Appellant did not
tell his supervisor that he needed a break due to his diabetes on June 13, 2013, the
date in question.
      The security director met with Appellant and the shift manager on duty on June
13, 2013 to discuss the discrepancies between Appellant’s actual break, and the time
he submitted on the missed punch form. At first, Appellant stated that he swiped out
for lunch, but did not swipe back in. When advised that the records showed that he
had clocked back in at 3:40 a.m., Appellant said that he realized he had gone twenty
minutes over on his break when he swiped back in, and offered to adjust his schedule.
Then, when Appellant was told that he had gone upstairs to order food at 2:06 a.m.,

                                          3
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

went to the quiet room, swiped out for a break at 2:40 a.m., and then swiped back in
again at 3:40 a.m., Appellant stated that he was confused because of his diabetes.
      On July 25, 2013, the Delaware Department of Labor Claims Deputy
determined that Appellant was disqualified for unemployment benefits, because
Appellant was discharged from work for just cause. Appellant sent an Appeal Request
Notification on August 2, 2013, challenging the prior decision by the Claims Deputy.
The Delaware Department of Labor, Division of Unemployment Insurance Appeals
held a hearing, concerning the appeal to the Claims Deputy’s decision, on August 26,
2013. A representative of Employer testified that Appellant was questioned about the
incident on June 13, 2013, during which questioning he changed his story several
times. Based on the inconsistency of Appellant’s testimony, the Appeals Referee did
not find Appellant’s testimony to be credible. The Appeals Referee, Dina M. Burge,
affirmed the Claims Deputy’s decision, disqualifying Appellant for the receipt of
unemployment benefits on October 3, 2013.
      Appellant sent an Appeal Request Notification to the Board on October 10,
2013. The Board held an administrative hearing regarding the decisions below on
December 4, 2013. During the administrative hearing, Appellant was sworn, and
testified that he informed his shift manager, Dale Stark, that he was not feeling well
when he reported to work on June 13, 2013. According to Appellant, he reported to
work that day instead of calling out, because he did not want to accrue any more
disciplinary points.
      Appellant testified that shortly after the day in question, he took time off to
care for his mother. Upon return from that leave, he was called into a meeting to

                                          4
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

address inconsistencies in his reporting of the events of June 13, 2013. Appellant
informed his supervisor that he did not mean to deceive Employer. Appellant also
argued that he gave Employer medical documentation attesting to his condition after
he returned from leave. In support of that testimony, Appellant submitted medical
records, detailing his visit to the emergency room on June 25, 2013. The records
submitted by Appellant were all dated after June 13, 2013. A representative of
Employer, Barbara Wilson, was sworn, and testified that Employer’s policy is not to
work sick employees.
       The Board found that the medical records submitted by Appellant did not
establish that he suffered any medical problem that would have led to his inaccurate
reporting on June 13, 2013, since the medical records were all dated after June 13,
2013. Accordingly, the Board affirmed the prior decision of the Appeals Referee.
Appellant submitted a Notice of Appeal of the Board’s decision to this Court on
December 18, 2013. Appellant submitted an Opening Brief in the instant matter on
March 27, 2014. Appellee did not submit an Answering Brief.
                                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.1
Substantial evidence is that which “a reasonable mind might accept as adequate to
support a conclusion.”2 It is “more than a scintilla, but less than preponderance of the


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

                                               5
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

evidence.”3 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.”4 Where an
agency has interpreted and applied a statute, the court’s review is de novo.5 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.6
                                         DISCUSSION
       In his Opening Brief, Appellant challenged the Board’s decision by arguing
that the Board failed to consider the medical records he submitted to Mike Mallow,
one of the security shift managers on duty. Appellant stated that he was discharged
from the VA Hospital Emergency Room in Wilmington, Delaware on June 25, 2013.
After discharge, Appellant claimed that he immediately went to Dover Downs to turn
in proof of his hospital discharge and condition to Mike Mallow, one of the shift
managers on duty. The hospital discharge documents contained medical records of
Appellant’s condition, and a note from Doctor William L. Jaffe.
       Appellant claimed that he explained his health situation to Mike Mallow, and
filled out documentation enabling him to take the night off from work. Appellant
further stated that he is concerned that Mike Mallow did not turn in his medical

       3
           Id. (quoting Cross v. Calfano, 475 F.Supp. 896, 898 (D. Fla. 1979).
       4
         Delaware Transit Corp. v. Roane, 2011 WL 3793450, at *5 (Del. Super. Aug. 24,
2011) (quoting Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at *2 (Del. Super. April
30, 2009).
       5
           Lehman Brothers Bank v. State Bank Commissioner, 937 A.2d 95, 102 (Del. 2007).
       6
           Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998).

                                                 6
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

discharge or vacation leave copy to Employer’s Human Resources Office in a timely
manner. Appellant asserted that both proof of the hospital discharge and his medical
or vacation leave copy were missing from his first appeal to the Appeals Referee as
well as his appeal before the Board. In addition, Appellant claimed that there was a
surveillance camera in the office where he met with Mike Mallow, which would
allegedly provide proof of their interaction. Further, Appellant reiterated that, on June
13, 2013, he informed Dale Stark, one of the shift managers on duty, that he was
feeling ill as a result of suffering from high blood pressure and shoulder pains.
         The issue before the Board was whether Appellant’s employer had sufficient
just cause to discharge Appellant from his employment. In a discharge case, the
employer must show by a preponderance of the evidence that the                    claimant was
discharged for just cause in connection with his work.7 Just cause exists where the
claimant commits a willful or wanton act, or engages in a willful or wanton pattern
of conflict in violation of the employer’s interest, his duty to the employer or his
expected standard of conduct. In Delaware, one factor utilized in determining just
cause for discharging an employee is whether the employee received a prior warning
of the termination.8 That did exist here.
         The final written warning Appellant received on February 26, 2013 with
suspension should have been an indicator to Appellant that he risked termination.
According to the record, Appellant had a prior history of performance issues. During


         7
             Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, (Del. Super. Jul. 27,
2011).
         8
             Tuttle v. Mellon Bank of Delaware, 1995, 659 A.2d 786 (Del. Super. 1995).

                                                  7
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

the hearing before the Appeals Referee, Ms. Jerden, a witness for Employer, stated
that Employer already knew Appellant had diabetes. Employer even provided ADA
accommodations to Appellant. However, Employer made it clear to Appellant that a
supervisor should always be given notification when Appellant is sick. Appellant had
a history of failing to notify a supervisor when he left his work floor.
      According to testimony from Ms. Jerden in the hearing before the Appeals
Referee, on June 13, 2013, Appellant left the work floor at 2:06 am to take a food
break. When questioned about this break, Appellant’s story repeatedly changed.
Employer regularly did allow Appellant to take mini breaks, but Appellant did not tell
his supervisor he was leaving. He was absent from his work floor from 2:06 to 3:04
am, when his authorized break should have been only 40 minutes. These facts alone
provide sufficient just cause for Appellant’s termination.
      With regard to the missing hospital discharge documents from Doctor William
L. Jaffe, the Board had considered the existence of the documents. The Board
correctly noted from Employer’s witness, Barbara Wilson, that the hospital discharge
documents were dated after June 13, 2013. Therefore, the documents cannot establish
that Appellant suffered any medical problem that would have led to Appellant’s
inaccurate reporting on June 13, 2013, the day upon which Employer’s termination
is based.
      Further, the hospital discharge documents, which contained medical records
of Appellant’s condition and a note from Doctor William L. Jaffe, did not make any
mention of Appellant’s alleged “confusion” as a resulting symptom of his condition.
During the hearing before the Board, Appellant claimed that, because of his diabetes,


                                          8
Brown v. UIAB
C.A. No.: K13A-12-001 RBY
July 22, 2014

he was confused, which caused him to clock out of work at the wrong times. The
hospital discharge documents Appellant seeks to introduce into evidence before the
Board, are not pertinent to the question of law posed. Appellant’s prior performance
issues, inconsistent testimony, and misconduct on June 13, 2013, provided sufficient
just cause to discharge Appellant from his employment.
                                 CONCLUSION
      For the foregoing reasons, the decision of the Board is AFFIRMED.
      IT IS SO ORDERED.


                                          /s/ Robert B. Young
                                                     J.
RBY/lmc
oc: Prothonotary
cc: Mr. Brown, Pro se
     Catherine Damavandi, Esq.
     Opinion Distribution
     File




                                         9
