IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY

BEACH BABIES CHILD CARE, INC., : : C.A. No: K14A-06-009 RBY Appellant, : : v. : : JEREMY HURD,

and THE : UNEMPLOYME NT INSURANC E : APPEALS BOARD, : : Appelle es. :

Submitted: Decem ber 3, 2014 Decided : January 23 , 2015
Upon Con sideration of Appellan t’s Appeal from the Une mployment Insurance A

ppeal Board REMANDED
OPINION and ORDER

Richard E. Berl, Jr., Esquire, Berl & F einberg, LLP, Lewes , Dela ware f or Appell ant. Jeremy Hurd, Pro se

. Paige J. Schmittinger , Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware for The Unemployment Insur ance Appeals Board.

Young, J.Beach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

2 SUMMARY Beach Ba bies Child C are, Inc., (“

Appellant”), appe als the dec ision of the Unemploym

ent Insurance Appeals Board (“the Boar d”) finding that Jeremy H urd (“A ppellee” ), was discharge d without j ust cause; and, acc ordingly , is qualif ied to receive unemploym

ent benefits. Following an investigation into an alleged incident inv olving a chil d in the App ellee’ s care, Appellee was suspe nded and ultima tely f ired for allegedly

violating pr

ovisions of th e em

ployee handbook. T

he Department of La

bor (“the Departm

ent”) issued a decision disqualifying Appellee from receivin g benefits , finding h e had been terminated for just cau se. The Appeals R

eferee reverse d. On app eal, the Board af firm ed the dec ision of the Referee. This Cour

t finds that

the Board ’s deci sion is defi cient as to findings of fact and con clusion s of law, according ly, t he decision

of the Boa

rd is REMANDED in accordan ce with this opinion

.

FACTS AND PROCEDURAL POSTURE Since the Board, a fter tak

ing additional testimony of witnesses, affirm ed the Refere e’s det ermi

nation and a dopted his factual find ings as those

of the Boa

rd, the Court begins by restating the factual findings made by the Appeals Referee, sub sta nti all y in t hei r ent iret y: [Appelle e] wa s empl oyed a s an earl y Child hood teacher by [ Appellant ] from 20 01 th rou gh Nov embe r 22 , 20 13 . Th e [A pp ell ee] was empl oye d fu ll -ti me at an hourl

y rat e of $14.25 . [Appe llee] w as doing a c ounting activity dur ing circle time on

Novem ber 19, 201 3. Children were called into the middle of the circl e to be coun

ted. One of the chil dren was lying in the m iddle of the circle. [Appelle e] aske d him to move to the outside of the cir cle so he w ould not get stepped on or trip other children. When the child would not move,Beach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

1 R. at 69-70. 3 [Appellee] pulled him by his legs and slid him to the outside of the circle. [Appelle e] stat ed he wan

ted to m ove, not hur

t or harm the child. The child told [Appe llee] h is back hur t. The n ext day , the chil d’s parent repor ted he had a rug bur

n on his back. [Appella

nt] said the paren t said the c hild said [Appelle e] wa s upset when he pulled him. [ Appellant ] investigated and reviewe d video surve illance. [Appella nt] cont ends [Appe llee] p ulled the child aggre ssively

and then push ed him

down and tur

ned his head

with his hands. [A ppellant] suspended [ Appellee ] and re ported the incident to the Delawa re Depa rtment of Ser

vice for Children, Youth and T heir Fam ilies for investigati on. [Appe llant] t ermi nated Claimant

on Novem

ber 25, 201 3, for inappropri ate abusive

or neglec tful behavi or in violat ion of its ha

ndbook. 1 At its hearing, the Board accepted additional testimony , which it summarized as follows: [Appella nt’s] represe ntative T om T oner was sworn and testifie d that the incident causing [Appellee’s] term ination was on video. A copy of the video was rec eived into e vidence a s empl oyer’ s Exhibit 1, and play ed at the hearing. [Appella nt’s] represe ntative al so testifie d that the m other of th e child wh o was alleged ly injured by the [App ellee] could not take o ff of work to t estify. Theref ore, a p hoto alleg edly tak en by th e chil d’s moth er to s how th e chil d’s physical harm w as not received into evidence, because a proper evidentiary foundation c ould not be es tablished. [Appella nt’s] represe ntative al so testified that Appe llant m aintains a safe, w arm educational environm ent, and [Appe llant’s ] reput ation is bas ed upon how [ Appellant ] takes care of children. [Appellee] was sworn and testified that on the day in question, he was left alone in a r

oom w ith children. He st ated that t here should

be one tea cher for every 12 childre n. He e xplained tha t he had j ust cleane d up for bre akfastBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

2 R. at 107-08.

3 R. at 71.

4 R. at 109.

5 Id

. 4 and was gett ing the ch ildren foc used. He stat ed that a ch ild was moved. He noted that he was not interviewed by DHSS ( Division of Health and Social Service s). He

stated tha

t he did not w ant the chi ld to be har med. In the morning, the [A

ppellant] did not chec k the child’ s back. H e also re called the child di d not cry that h e was harmed or hurt

. [Appella nt’s] witness L atisha Lewis was sworn and testified that late r in the video, the child comes back to the [Appellee] a nd points to his back, as though his bac k hurt. 2 Both the Appeals Referee and the Board ultimately concluded that Appellee was not te rmina

ted for j ust cause, finding tha t he was, therefor

e, entitl ed to rece ive unempl oym ent benef

its. The Appeals R

eferee found that A

ppellant “ failed to establis h the cont ent of the p olicy [Appelle e] is alleged t o have vio lated.” 3 In affirming the App eals Referee, th e Board stat ed, “[t]he [video] record ing sho ws that [Appellee] m oved the child during circle time. However, the recording does not establi sh by a preponderance of th e evidenc e that the child was injured ( e.g. , received a ru g burn) by the [Appellee’s] acti ons.” 4 After b riefly explaining t

heir rational f or excludin g photographi c evidenc e of alle ged phys ical inj ury to the chil d – cla ssif

ying it as hea rsay sta tements – the B oard w ent o n to co nclu de, “[a]s a result, there is n o conclusive evidencein the rec ord that [A ppellee] physic ally injured a chi ld durin g circle time on No vember 19, 2013 .” 5Beach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

6 29 Del. C . § 10142( d); Avon Prods. v. Lamparski , 203 A.2d 559, 560 (Del. 1972).

7 Majaya v. Sojourners' Place , 2003 WL 21350542, at *4 (Del. Super. June 6, 2003).

8 Id. (quot ing Cross v. Calfano , 475 F.Supp. 896, 898 (M.D. Fla. 1979)).

9 Delaware Transit Corp. v. Roane , 2011 WL 3793450, at *5 (Del. Super. Aug. 24, 2011) (quot ing Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at *2 (Del. Super. Apr. 30, 2009)). 5 Appellant now urges this Court to reverse the Board , claim

ing: (1) the Board com

mitte d legal er

ror in their classif

ication an d interpre tation of th e evidence; and (2) the Board’s decision was not supported by substantial evidence and was bot h arbitrary and c apriciou s. 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. 6 Substantial evidence is defined

as “s uch relev ant evidenc e as a re asonable mind might accept as adequate t o suppo rt a conclu sion.” 7 It is “more than a scintill a, but less than prepo nderance o f the evide nce.” 8 An abuse o f discret ion will be f ound if the b oard “ acts arbi trarily or capac iously. ..exce eds the bounds of reason in v iew of the

circum stances a

nd has ignore d recogniz ed rules of law or practice so as to prod uce injust ice.” 9 Accordingly, “ if the record clearly indicates that the ad

minist rative ag ency m

ade its dec ision on im

proper or inadequate grounds, di scretion h as been ab used and re versal upon judicia l review

isBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

10 Kreshtool v. Delmarva Power & Light Co. , 310 A.2d 649, 652 (Del. Super. 1973) (citing Securitie

s & Exchang e Commissi

on v. Chen ery , 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)).

11 Id

.
12 Lehman Br

others Ban k v. State

Bank Comm issioner, 937 A.2d 95, 102 (Del. 2007).

13 Anchor M

otor Freig

ht v. Ciaba ttoni, 716 A.2d 154, 156 (Del. 1998).

14 19 Del

. C . § 3314(2). 6 required.” 10 In review of the Boards decision, the Court does not weigh evidence, determ ine question s of credi

bility, or ma

ke its own f

actual fi ndings. 11 Where an agency has interp reted and

applied a s tatute, t

he court’ s review

is de novo

. 12 In the absence of

an error of law, lack of sub stantial e vidence or abuse of di scretion, the Court wil l not disturb the decisi on of the boa rd. 13 DISCUSSION The Boar d affirm ed the dec ision of theAppeals R eferee pursuant to 19 Del. C. § 332 0(a), f

indi ng th at no error h ad bee n committ ed in the Re feree’s determ ination. T he Refer ee’s de cision wa s based upon 1 9 Del

. C . § 3314(2 ), which sta tes in rel evant par

t that an ind

ividual shal l be disqual ified for unemployment benefits, “for the week in which the individual was discharged from the indi vidu al's wo rk for just c ause i n con necti on wit h the indi vidu al’s work...” 14 This Cour

t has explained: [i]n a [dischar

ge] situ ation, the

emplo yer ha s the burde n of proving j ust cause. E mployee perfo rman ce and cond uct is highly

relevant in assessin g just cau se. Absent evidence to the contr

ary, an em

ployer necessar ily se ts the standar

d for acc eptable w orkplace conduct and perform ance. Ju st causeBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

15 MRPC Fin. Mgmt. LLC v. Carter , 2003 WL 21517977, at *4 (Del. Super. June 20, 2003) (internal citations and quotations omitted).

16 Still v. Burris Logistics , 2011 WL 4135123, at *1 (Del. Super. May 5, 2011) (citations omitted); Coleman v. Department of Labor , 288 A.2d 285, 288 (Del. Super. 1972).

17 Wilson v. Unemployment Ins. Appe al Bd. , 2011 WL

3243366, a

t *2 (Del. Super. July 27, 20 11) (ci ting McCoy v. Occidental Chem. Corp. , 1996 WL 111126, at *3 (Del. Super. 1996)).

18 Edgemoor Cmty. Ctr. v. Black , 2011 WL 7457651, at *3 (Del. Super. Oct. 25, 2011) (citi ng Mergliano v. Unemployment Ins. Appeal Bd. , 2009 WL 3069676, *2 (Del. Super. Sept.16, 2009). 7 refers to a wilf

ul or wanton act in vio lation of e ither the employer's interest, or of the e mployee's dutie s, or of t he em ployee 's expect ed standar d of conduct. 15 Willful or wanto n conduct is that whic h is evidenc ed by e ither cons cious acti on, or reckless indifference lea ding to a devi ation from establishe d and acce

ptable workplac e perfor

manc e; it is unne cessary

that it be f

ounded in bad motive

or malice. 16 Theref ore, “ [v]iola

tions of a reasonable

compa ny rule may constitutejust cause for discharge

if the em ployee is aware of the pol icy a

nd the possibl e subsequ ent terminatio n.” 17 The em ployer need not de monstr

ate a re curring offense; rather, “[

j]ust cause can result from an isolated act by an em

ployee that shows con tempt for the accep table proc edures of t he employer.” 18 This Court uses a two -st ep t est to e val uat e whe the r a vi ola tio n of an al leg ed p oli cy wou ld ju sti fy a just cause discharge: “1) whether a policy existed, and if so, what conduct was prohibited, and 2) whe ther the e mployee was a pprised of the policy , and if s o, howBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

19 Id.

20 Wilson , 2011 WL 3243366, at *2.

21 Edgemoo r Cmty. Ctr. , 2011 WL 7457651, at *3 (internal citations and quotations omitted).

22 R. at 94.

23 R. at 96.

24 R. at 97. 8 was he made aware.” 19 Enforceable notice may be established by, “evidence of a written policy , such as a

n empl oyees ’ handbook

or by p revious w arnings of objection able cond uct.” 20 Finally, “ any decision by the Board that a claim ant was discharge d without

just cau se mus t be based o n findings of fact and conclusions of law adeq uate to suppo rt such a de cision. A Board's determ

ination that

a claim ant was disch arged wi thout just c ause is def icient wh ere it doe s not addre ss the allegations culminating in and the evidence supporting the discharge. 21 In addition to the evidence presented to the Appeals Referee, the Board heard tes timony

from Appellan t’s rep resentat

ive Tom Toner, Latisha Lewis a

nd the Appel lee. T om T oner testi fied that t he incident

causing A

ppellee’ s term

ination was on the video, which was admitted into evidence as Exhibit one. 22 He further testified that Appellant, as a matter of c ourse, maintains a safe, w arm educational environment, and that Appellant’s reputation is based upon how Appellant takes care of children. 23 He testi fied that t he Appell ee’s a ctions we re contra ry to t he compa ny’ s policies w

hich the A

ppellee ha d signed off

on in 2001, 20 08 and 2011. 24 The Appe llee testified that he did not int end to hurt t he child, and the chi ldBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

25 R. at 98-100.

26 R. at 107.

27 R. at 109.

28 Id

.
29 MRPC Fin. M

gmt. LLC , 2003 WL 21517977, at *4.

30 Edgemoo r Cmty. Ctr. , 2011 WL 7457651, at *3. 9 sho wed n o ap par ent sig ns o f in jury. 25 The Board did not admit or consider a photograph, which the

Appellan t claim s was proo f the child was inj ured, be cause the child’ s mother was not there to la y a pr oper founda

tion. 26 Based on thi s evidence , the Boa rd found tha

t Appella nt failed to establish by a prep onde rance of the evid ence t hat th e chil d was i njured by the Ap pell ee’s actions. 27 Because

there w as no conclu sive eviden ce that the Appellee injured the child, the Board det ermi

ned the Appellant w as dischar ged from his em ployment without just cause. 28 The Board’s findings, however, are le gally flawed. The pr oper legal standard do es not turn o n whether or not the c hild was in

jured. Rather, the issue is whether or not the A

ppellee’ s conduct w as “r

eckless[ ly] indifferen[t] l eading to a deviatio n from establis hed and acce ptable work place perfo rmance...” 29 In Edgemoor Cmty. Ctr. v. B lack , a sim ilar cas e, this Co urt conclud ed the Board’ s decision, that a chi ldcare pr ovider’ s term

ination wa s not based on

just cause, c onstituted le gal error because i t did not take

into conside ration the childcare provider ’s beha vior pursua

nt to the em

ployer ’s stand ards. 30 In ma king itsBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

31 Id

.
32 Id

.
33 Id

. 10 determ ination, t he Court not ed that the

Board’ s decision “ did not discus s any interest, duty, or standard of conduct of the [em ployer] in relation to [the childcare provider ’s] conduct.” 31 Instead, the Board made its deter minat ion that the emplo yer di d not me et its burden of persua sion without any dis cussion of w

hat it is that th e employer needed to show. 32 Finally , the Cour t noted, “ [w]it

hout a comparison of

[the child care provid er’s] conduct to the [employer’s] standard s ... there can be no legally sufficient decision regarding whether the [em ployer] had just cause t o terminate [the child care p rovider].” 33 Becausethe Board ’s focu s was alm ost exclusiv ely on w

hether or not the chil d was i njured , and n ot App ellee ’s actu al con duct compare d to Ap pell ant’s established standards, the Board committed legal error. Again, the proper legal analysis involves a two part test, (1) whether a policy existed, and if so, what

con duc t was pro hib ite d, an d (2 ) whe the r th e empl oyee w as ap pri sed of t he p oli cy, and if so, how was h e ma de aware. Sim ilar to Edgemoor

Cmty. Ctr , the Court finds that t

he Board’ s decision i s deficie nt as to find ings of fac t and concl

usions of law rega rding whet

her Appe llee’s conduct – pul ling a child by the feet, pu shing him dow n, and m oving his hea d – was re cklessly indifferent, lea ding to a deviatio n from Appellant ’s establis hed and acce ptable work place perfo rmance. Accordingly, the decisi on of the Bo ard is REMANDED in accord ance wit h thisBeach Babies Child Care, Inc. v. Hurd, et. al.

C.A. No.: K14A-06-009 RBY January 23, 2015

11 opinio n. IT IS SO ORDERED

. /s/ Rober t B. Youn g J.
RBY /l mc oc: Prothonotary cc: Counsel Jeremy Hurd, Pro se Opinion Di stribution File