IN THE SUPREME COURT OF THE STATE OF DELAWARE

KIDS & TEENS PEDIATRICS OF 

DOVER,

Appellant Below,

Appellant,

v.

MARIE O’BRIEN and 

UNEMPLOYMENT INSURANCE 

APPEAL BOARD,

Plaintiff Below, Appellee.

§

§ No. 51, 2020

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Civ. A. No. K19A-08-001 JJC

§ 

§ 

§ 

§

§

§

 Submitted: September 4, 2020

 Decided: October 30, 2020

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

O R D E R

After consideration of the parties’ briefs and the record in this case, it appears 

to the Court that:

(1) The appellant, Kids & Teens Pediatrics of Dover (the “Employer”), 

disputes the decision of the Unemployment Insurance Appeal Board (the “UIAB” or

the “Board”) that found that the appellee, Marie O’Brien, was not fired for just cause 

and therefore was entitled to unemployment benefits. For the reasons stated below, 

we affirm the Superior Court’s order affirming the Board’s decision.

(2) O’Brien worked for the Employer from September 16, 2018, through 

March 27, 2019, when the Employer terminated her from her position as office 
2

manager. O’Brien sought unemployment benefits. On April 22, 2019, a claims 

deputy determined that the Employer had discharged O’Brien for just cause because 

of an incident relating to a missing office stamp, and that O’Brien therefore was 

ineligible for unemployment benefits.1 

(3) O’Brien appealed. Following a hearing, the appeals referee found that 

O’Brien “was discharged without [warning] due to co-worker complaints and for the 

missing office stamp.”2 Because the Employer did not provide O’Brien with an 

unequivocal warning that put her “on clear notice that a repetition or continuation of 

certain behavior may lead to dismissal,”3the appeals referee determined that the 

Employer had terminated O’Brien without just cause and that O’Brien therefore was 

qualified to receive benefits.

(4) The Employer appealed to the UIAB, which held a hearing on July 10, 

2019. Dr. Osama Hussein and Amal Fouad, the Employer’s owners, testified at the 

hearing. Dr. Hussein testified that he and Fouad had engaged in several “sit-downs” 

with O’Brien regarding her conduct around the office. He also focused on the 

missing office stamp and described his review of a surveillance video that showed 

that O’Brien knocked the stamp from her desk into a trash can while she was talking 

on her cell phone. He said that it appeared that O’Brien saw what had happened but 

 

1 Appendix to Opening Bief, at A005.

2

Id. at A008.

3

Id. at A009.
3

did nothing; he also said that after asking her about the stamp, he gave her a week to 

try to locate it, but she took no action.

(5) Fouad testified regarding complaints that other employees had made 

regarding O’Brien’s behavior toward them in the office and in front of a patient. 

She testified that “[t]here was a long meeting to discuss [O’Brien’s] performance 

but only a verbal warning was given.”4 O’Brien appeared at the hearing and stated 

that she was not given even a verbal warning; she otherwise stood on the record.5 

(6) The UIAB affirmed the appeals referee’s decision, concluding that 

O’Brien’s termination was without just cause and that she was therefore qualified to 

receive unemployment benefits. The Board wrote:

The problem below remains the problem here. Claimant was not 

warned before she was fired. There is no dispute that Claimant was not 

given a written warning before she was terminated. Under Delaware 

law, an employer’s obligation to show “just cause” also includes the 

burden to show “notice to the employee in the form of a final warning 

that further poor behavior or performance may lead to termination.” 

That evidence is missing here.

The sole exception to this rule is when the willful or wanton 

misconduct is “sufficiently serious” such that no prior warning is 

required. The Board considers the question of what is “sufficiently 

serious” to be a question of fact. Based on the evidence presented, the 

Board concludes that Claimant’s alleged misconduct falls short of 

sufficiently serious willful and wanton misconduct such that she could 

be terminated for just cause without a prior warning. Employer 

presented no evidence that Claimant stole or willfully (or even 

recklessly) misplaced the stamp. Rather, the evidence shows that 

Claimant may have unwittingly knocked the stamp into the trash. Nor 

 

4

Id. at A014.

5

Id. at A131.
4

did Employer’s generic evidence of poor performance and employee 

complaints show that Claimant’s alleged misconduct [rose] to the 

extraordinary level of “sufficiently serious” misconduct such that the 

Board can conclude no advance warning was necessary.

Because Employer did not issue a prior written warning to 

Claimant before she was terminated, under Delaware law, the Board 

concludes that she was terminated without just cause.6

(7) On the day of the UIAB hearing, the Employer’s counsel, whom the 

Employer had very recently retained, sent a letter to the Board requesting a rehearing 

because a staff member had denied counsel access to the hearing when counsel 

arrived two minutes late. The Board denied the request in a memorandum opinion 

and decision that was mailed to the Employer on August 6, 2019.7 The notice of 

appeal that the Employer filed, pro se, in the Superior Court on August 5, 2019, did 

not identify the order denying rehearing as an order from which the Employer was 

appealing, but it did state that one of the grounds for the appeal was that counsel had 

been denied entry to the hearing. After filing the notice of appeal, the Employer

retained a different attorney, who filed an opening brief on the Employer’s behalf. 

That brief recited facts relating to the denial of counsel’s entry to the hearing, but 

did not make any arguments for reversal based on those facts. The reply brief filed 

in the Superior Court cursorily argued that a party should not be punished for its 

 

6

Id. at A015 (citations omitted).

7 Appendix to Answering Brief of UIAB, at B009-14. 
5

attorney’s mistake absent a clear record of delay or willful contempt and a finding 

that lesser sanctions would not suffice.

(8) In the Superior Court appeal, the Employer presented the following 

arguments that are relevant to this appeal: (i) the UIAB’s decision was not supported 

by substantial evidence because the UIAB failed to consider the Employer’s 

evidence that O’Brien’s conduct was in violation of policies set forth in the 

Employer’s employee handbook and that she received multiple warnings regarding 

her behavior before her termination; (ii) the UIAB erroneously determined that the 

Employer was required to give O’Brien a final, written warning before terminating 

her, and that the final warning was required to provide O’Brien with notice that her 

conduct, if continued, would lead to termination; (iii) O’Brien’s conduct was 

sufficiently serious to justify termination without prior warning; and (iv) barring the 

Employer’s counsel from the hearing before the Board erroneously punished the 

Employer for the attorney’s mistake, without a clear record of delay or willful

contempt and a determination that lesser sanctions would not suffice.

(9) The Superior Court affirmed the UIAB’s decision.

8

 The court held that 

the UIAB did not commit reversible error when the Board’s staff person denied the 

Employer’s counsel access to the hearing because the Employer had not had counsel 

in the earlier proceedings; the attorney had not made the Board aware of the 

 

8 Kids & Teens Pediatrics of Dover v. O’Brien, 2020 WL 95849 (Del. Super. Ct. Jan. 8, 2020).
6

representation by entering an appearance or otherwise communicating with the 

Board; and the Employer did not notify the Board during the hearing that it had an 

attorney, that the attorney was not present, or that it desired an attorney.9 The 

Superior Court held that the UIAB correctly applied Delaware law requiring a final 

warning to an employee before termination. The court also determined that the 

record contained substantial evidence that the Employer had not given O’Brien a 

final warning and that O’Brien’s conduct was not sufficiently serious to warrant 

termination without a final warning.

(10) This appeal followed. The Employer argues that this Court should 

reverse the Superior Court’s decision because (i) the Employer was denied due 

process when its counsel was barred from attending the hearing; and (ii) the Superior 

Court erroneously held that the Employer was required to provide O’Brien with a 

final, written warning before termination.

(11) With respect to the Employer’s argument that it was denied due process 

when the UIAB staff member prevented the Employer’s counsel from entering the 

hearing room, we affirm on the basis of the Superior Court’s order dated January 8, 

2020. The allegation that a Board staff member might have prevented counsel from 

attending the hearing because of a two-minute delay in her arrival is concerning, 

 

9 Despite the Employer’s cursory argument on this issue in the Superior Court, which it raised for 

the first time in the reply brief, the court undertook a thoughtful analysis of the potential due 

process implications and determined that the UIAB did not commit legal error.
7

especially in light of the ten-minute grace period afforded by the UIAB regulations. 

But neither counsel nor the Employer notified the Board that the Employer had 

retained counsel, nor does the transcript reflect that either of the principals of the 

Employer who attended the hearing asked the members of the Board for a delay or 

provided any indication to the members of the Board that they had retained counsel, 

that counsel was unexpectedly missing, or that they lacked any evidence because it 

was in counsel’s possession.

(12) The Employer also now argues that it was denied due process when the 

UIAB staff member told Fouad and Dr. Hussein that they could not bring another 

witness, an employee of the appellant, into the hearing. This issue was not raised in 

the request for a rehearing or in the Superior Court appeal—nor did Fouad or Dr. 

Hussein give the Board any indication that they had another witness who had been 

denied entry—and we decline to consider it for the first time on appeal.10

(13) On the merits, the Employer argues that (i) Delaware law did not 

require the Employer to give O’Brien a final, written warning before termination and 

(ii) O’Brien’s conduct was sufficiently serious to warrant termination without a final 

warning. We have carefully reviewed the record in this case and have concluded 

that the Superior Court did not err in affirming the UIAB’s decision that O’Brien 

 

10 DEL. SUPR. CT. R. 8.
8

was qualified to receive unemployment benefits because she was discharged without 

just cause.

(14) An employee who is discharged for just cause is disqualified from 

receiving unemployment benefits.

11 As a general matter, there is just cause if an 

employee commits 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.”12 If an employer “consistently tolerates willful or wanton misconduct,” 

then “the employer may not be justified in firing employees without first warning 

them that their conduct no longer is acceptable.”13 The employer bears the burden 

of proving by a preponderance of the evidence that it terminated the employee for 

just cause.14

(15) This Court’s review of an appeal from the UIAB to the Superior Court 

is limited to a determination of whether there is substantial evidence in the record to 

support the UIAB’s findings and whether such findings are free from legal error.

15

Substantial evidence is such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.

16

 Like the Superior Court, this Court considers the 

record in the light most favorable to the party that prevailed in the UIAB 

 

11 19 Del. C. § 3314(2); Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1222 (Del. 2015). 

12 Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986).

13 Moeller v. Wilmington Sav. Fund Soc’y, 723 A.2d 1177, 1179 (Del. 1999).

14 Murphy & Landon, 121 A.3d at 1222.

15 Thompson v. Christiana Care Health Sys., 25 A.3d 778, 781-82 (Del. 2011).

16 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
9

proceeding.

17 Neither we nor the Superior Court weigh the evidence, determine 

questions of credibility, or make our own factual findings.

18

 

(16) Giving appropriate deference to the UIAB’s factual determinations and 

considering the record in the light most favorable to O’Brien, we cannot conclude 

that the Board erred in finding that the Employer failed to carry its burden of proving 

that it terminated O’Brien for just cause. The Employer presented some evidence 

that O’Brien engaged in inappropriate and unprofessional conduct, but the UIAB 

reasonably found that O’Brien’s conduct “did not constitute such wilful or wanton 

action as to furnish just cause for [her] dismissal” without warning.

19

 Moreover, 

although no written warning was required, the Employer’s failure to issue a written 

warning left it for the Board to weigh the conflicting oral testimony regarding 

whether any warning was given. The record contains sufficient evidence to support 

the Board’s determination that no warning was given, and the Superior Court 

therefore did not err in affirming the Board’s conclusion that O’Brien was terminated 

without just cause.20

 

17 Thompson, 25 A.3d at 782.

18 Id.

19 See Weaver v. Employment Sec. Comm’n, 274 A.2d 446, 447 (Del. 1971).

20 See Bouyer-Bello v. Unemployment Ins. Appeal Board, 2018 WL 3636231, at *2 (Del. July 30, 

2018) (where the record contained sufficient evidence to support the UIAB’s findings, the Superior 

Court did not err by affirming the UIAB’s decision, because the “credibility of witnesses, the 

weight of their testimony, and the reasonable inferences to be drawn therefrom are for the UIAB 

to determine” (internal quotation omitted)).
10

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura

Justice