IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

TABITHA PAYNE, ) 

) 

Appellant, ) 

) 

v. ) C.A. No. N22A-09-002 FWW

) 

UNEMPLOYMENT INSURANCE ) 

APPEAL BOARD, AND )

INGLESIDE HOMES, INC., )

) 

Appellees. ) 

Upon Appeal from the Unemployment Insurance Appeal Board, 

REVERSED and REMANDED

MEMORANDUM OPINION

Submitted: January 5, 2023

Decided: January 12, 2023

Richard T. Wilson, Esquire; Joe Klusman, Esquire (Rule 55), LEGAL SERVICES 

CORPORATION OF DELAWARE, INC., 100 West 10th Street, Suite 203, 

Wilmington, DE 19801, Attorneys for Appellant Tabitha Payne

Victoria Counihan, Esquire, Deputy Attorney General; Victoria Goff, Esquire, 

Assistant Attorney General, DEPARTMENT OF JUSTICE, 820 N. French Street, 

Wilmington, DE 19801, Attorneys for Appellee Unemployment Insurance Appeal 

Board.

Ingleside Homes, Inc., 1005 North Franklin Street, Wilmington, DE 19806, 

Appellee. 

WHARTON, J.
2

I. INTRODUCTION

Appellant Tabitha Payne (“Payne”) appeals from the August 25, 2022 

decision of the Unemployment Insurance Appeal Board (“UIAB”) holding that 

Payne had been discharged from her employment with Ingleside Homes, Inc. 

(“Ingleside”) for just cause, and was disqualified from receiving unemployment 

benefits.1 All parties were sent notice of the brief schedule established by the Court.2 

Ingleside also was notified that, as an artificial entity, it must be represented by 

counsel.3 Payne filed her opening brief as directed.

4

 Counsel for UIAB wrote to the 

Court advising it that it would not be filing an answering brief because Payne was 

challenging the UIAB’s decision on the merits and the UIAB did not have an interest 

in seeking to have its decision affirmed on appeal.5 Inexplicably, Ingleside failed to 

file an answering brief despite the Court issuing it a “Final Delinquent Brief Notice” 

on December 2, 2022.6 This failure is consistent with Ingleside’s failure to appear 

before the UIAB to defend against Payne’s appeal from the decision of the Appeals 

Referee, despite receiving notice of that hearing.7 Accordingly, notwithstanding the 

1 Decision of the Unemployment Insurance Appeal Board on Appeal from the 

Decision of Mark. J. Hill, Appeal Docket No. 17059892 (Aug. 25, 2022). 

2 D.I. 6

3

Id.

4 Op. Br., D.I. 11.

5 D.I. 12.

6 D.I. 13.

7 Tr. Admin. Hrg. (Aug. 23, 2022), at 3. 
3

possible merits of Ingleside’s position, this Court reverses the determination of the 

UIAB due to Ingleside’s failure to respond in violation of Superior Court Civil Rule 

107.

II. FACTS AND PROCEDURAL HISTORY

A hearing was held before the Appeals Referee on April 25, 2022 after a 

Department of Labor Claims Deputy denied Payne’s request for unemployment 

benefits. After that hearing, the Appeals Referee found the following facts. Payne 

was employed by Ingleside from April 2014 to September 22, 2021 as a part-time 

Home Health Aid earning $12.81 per hour.8 In response to the COVID-19 

pandemic, Ingleside implemented a testing/vaccination policy.9 According to 

Ingleside’s representative, the policy was dated September 17, 2021 and was 

preceded by oral communication with all staff.10 By the terms of the policy, all staff 

were required to be tested or vaccinated by September 21st.

11

 According to Ingleside, 

its policy was consistent with the Governor’s COVID testing policy.12 Ingleside also 

produced its own policy from 2009 stating that any refusal to comply with 

reasonable requests would be considered insubordination and subject to discipline 

8 Division of Unemployment Insurance Appeals Referee’s Decision (Apr. 26, 2022), 

at 2. Ingleside appeared before the Appeals Referee and provided evidence through 

a representative. 

9

Id.

10 Id.

11 Id.

12 Id.
4

up to and including dismissal.13 Ingleside’s representative testified that he 

personally spoke with Payne who told him that she would not be getting vaccinated 

or tested.

14

 According to Ingleside’s representative, Payne used profanity during 

that conversation.15 Ingleside never received proof of either testing of vaccination 

from Payne and, pursuant to its policy, terminated her on September 23, 2021, 

effective the 21

st

.

16 Payne testified that she had only a few days to get tested and had 

difficulty scheduling her appointment.17 She said that she did get tested on the 22nd 

but never sent the results to Ingleside.18

The Appeals Referee affirmed the decision of the Claims Deputy.19 He found 

that Ingleside had established by a preponderance of the evidence that it discharged 

Payne for good cause in connection with her work, and, therefore, was disqualified 

from receiving unemployment benefits.20

Payne appealed the Appeals Referee’s decision to the UIAB, and a hearing 

was held on June 22, 2022.21 Payne appeared with counsel while Ingleside did not 

13 Id. 

14 Id. 

15 Id.

16 Id.

17 Id. 

18 Id.

19 Id., at 3.

20 Id.

21 Decision of the UIAB, at 1.
5

send a representative.22 Payne testified that she had difficulty scheduling an 

appointment for testing, finally was able to get tested on September 22nd, and both 

emailed and texted her supervisor to let her know that she was getting tested.23 She 

denied telling Ingleside that she would not get vaccinated or get tested weekly, 

explaining that she did not believe in the vaccine, but was willing to do the testing.24

She submitted exhibits purporting to corroborate her testimony.25 The UIAB 

considered Payne’s testimony and exhibits as well as the evidence presented to the 

Appeals Referee, the Referee’s Decision, and Payne’s Notice of Appeal.26 In the 

end, the UIAB affirmed the Referee’s Decision and concluded that Payne had been 

discharged from her employment for just cause in connection with her work, and, 

accordingly, was disqualified from receiving unemployment benefits.27 This appeal 

followed.

III. STANDARD OF REVIEW

The standard of review under which this Court reviews the UIAB’s decision 

is deferential, and the UIAB’s decision will only be modified in unusual

circumstances. The UIAB’s decision must be affirmed so long as it is (1) supported 

22 Id., at 2-3. 

23 Id., at 2.

24 Id.

25 Id.

26 Id., at 1.

27 Id., at 5.
6

by substantial evidence and (2) free from legal error.28 A finding of substantial 

evidence requires such relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion.29 While a preponderance of evidence is not 

necessary, substantial evidence means “more than a mere scintilla.”30 Because the 

Court does not weigh evidence, determine questions of credibility, or make its own 

factual findings, it must uphold the decision of the UIAB unless the UIAB “acts 

arbitrarily capriciously” or its decision “exceeds the bounds of reason.”31 This 

Court's role is to correct errors of law and to review the factual findings of the UIAB

below to determine if such findings are sufficiently supported by the record and are 

the product of an orderly and logical deductive process.32 

IV. DISCUSSION

Ordinarily, the resolution of this appeal would turn on the discrete issue of 

whether there was substantial evidence to support the UIAB’s decision. In fact, the 

28 Unemployment Ins. Appeal Bd. of Dept. of Labor v. Duncan, 337 A.2d 308, 309 

(Del. 1975).

29 Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. Super. Ct. 

1994) (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)); see also, Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).

30 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988); Universal, 

340 U.S. at 477 (“Accordingly, it must do more than create a suspicion of the 

existence of the fact to be established. . . . [I]t must be enough to justify, if the trial 

were to a jury, a refusal of a directed verdict when the conclusion sought to be drawn 

is one of fact for the jury.”).

31 PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. Ct. June 18, 

2008). 

32 Levitt v. Bouvier, 287 A.2d 671, 673 (Del.1972).
7

two arguments Payne advanced in her opening brief – that she complied with 

Ingleside’s COVID testing policy and that none of the UIAB’s reasons for its finding 

that she was ineligible for benefits is supported by substantial evidence – implicate 

just that issue.33 Given the standard of review she faces a daunting challenge. Her 

probability of success would not have been great.

Ingleside’s unexplained and inexcusable failure to appear before the UIAB or 

to comply with this Court’s scheduling order dictates the result on appeal, however. 

Despite being issued a “Final Delinquent Brief Notice,” Ingleside made no efforts 

to comply with this Court’s requirements, nor did it proffer any explanation for its 

procedural default. It did not even take the initial, and necessary step, of obtaining 

counsel. As provided in Superior Court Civil Rule 107(f):

If any brief, memorandum, deposition, affidavit, or any 

other paper which is or should be a part of the case pending 

in this Court, is not served and filed within the time and in 

the manner required buy these Rules or in accordance with 

any other order of the Court or stipulation of counsel, the 

Court may, in its discretion, dismiss the proceeding if the 

plaintiff is in default, consider the motion to be abandoned, 

or summarily grant or deny the motion, such as the 

situation may present itself, or take any other action as it 

deems necessary to expedite the disposition of the case. 

33 Op. Br., at 5, D.I. 11.
8

When an appellee fails to comply with Rule 107, this Court may reverse an agency’s 

decision, notwithstanding the legal or factual soundness of that decision.34 The 

Court finds that Ingleside has failed to respond to this appeal without good cause, 

despite being afforded every opportunity to do so. Thus, reversal of the UIAB’s 

decision is appropriate and necessary.

35 The Court is mindful that reversal of the 

UIAB’s decision affects Ingleside’s rights, but Ingleside’s due process rights were 

duly protected at every stage of the proceedings. It is Ingleside’s failure to properly 

defend its interests here that is the cause of any disadvantage it may suffer. 

IV. CONCLUSION

Accordingly, for the reasons stated above, the decision of the Unemployment 

Insurance Appeal Board is REVERSED. The case is REMANDED to the 

Unemployment Insurance Appeal Board for further proceedings consistent with this 

34 See, e.g., Hunter v. First USA/Bank One, 2004 WL 838715, at *5 (Del. Super. Ct 

2004) (“[I]n this case, the Court finds that there exists a significant violation of a 

statutory precept, in this instance, its own Civil Rule 107(e). Therefore, despite the 

formidable “substantial evidence” found to exist by the Board, the Court has no other 

alternative but to reverse the Board’s decision due to Appellee’s failure to diligently 

prosecute and file its brief pursuant to Rule 107(e).”).

35 Reversal under like circumstances where an employer has failed to file an 

answering brief on appeal from an UIAB decision has occurred on numerous other 

occasions. See, e.g. Sprung v. Selbyville Cleaners, 2007 WL 1218683 (Del. Super. 

Ct. 2007); Crews v. Sears Roebuck & Co., 2011 WL 2083880 (Del. Super. Ct. 2011); 

Elder v. Careers USA, 2011 WL 3081437 (Del. Super. Ct. 2011); Byrd v. Westaff 

USA, Inc., 2011 WL 3275156 (Del. Super. Ct. 2011). 
9

opinion. On remand, Ingleside Homes, Inc. is estopped from asserting that Tabitha 

Payne was discharged for good cause. 

IT IS SO ORDERED.

/s/ Ferris W. Wharton

 Ferris W. Wharton, J.