IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

MARIO FLEURY, :

: C.A. No: K14A-03-003 (RBY)

Appellant, :

:

v. :

:

UNEMPLOYMENT INSURANCE :

APPEAL BOARD, :

:

Appellee. :

Submitted: June 19, 2014 

Decided: July 17, 2014

Upon Consideration of Appellant’s Appeal from

the Unemployment Insurance Appeal Board

REVERSED

ORDER

Mario Fleury, Pro se. 

Catherine Damavandi, Esquire, Deputy Attorney General, Department of Justice,

Wilmington, Delaware for Unemployment Insurance Appeal Board. 

Young, J.
Fleury v. UIAB

C.A. No.: 14A-03-003 (RBY)

July 17, 2014 

2

SUMMARY

This is an appeal from a decision of the Unemployment Insurance Appeal

Board (“the Board”) denying unemployment benefits to Mario Fleury (“Appellant”),

a former employee of KenCrest Community Living Services (“KenCrest Services”

or “Employer”). Appellant was terminatedfor violatingEmployer’s policy of sleeping

while on duty. There is no evidentiary showing of Appellant’s deviation from

Employer’s expected standard of conduct, except for the one incident in question. On

the record, there appears to be no willful or wanton act by Appellant to support a

finding of just cause for termination. Hence, the decision of the Board is

REVERSED.

FACTS

Appellant was employed by KenCrest Services from June 7, 2010 to October

25, 2013. Appellant worked full-time as a Resident Advisor, earning $11.41 per hour.

Between 1:30 a.m. and 1:45 a.m. on October 17, 2013, Appellant suffered a migraine

headache. Consequently, Appellant took two Aleve tablets, and put his head down to

rest in order to relieve his headache. Two witnesses for Employer, Suzanne Casey and

Wendy Wilson, conducted an unannounced night check, and found Appellant

sleeping on the job. Appellant woke up approximately five minutes after the two

witnesses sat down next to him. Appellant denied sleeping on duty.

On October 25, 2013, Director Kim Vaughn of KenCrest Services sent

Appellant a letter, notifying him that his employment had been terminated for his

policy violation of sleeping on duty. The KenCrest Community Living Services Work

Rules and Guidelines state, in Section XIII, that sleeping while on duty, with the
Fleury v. UIAB

C.A. No.: 14A-03-003 (RBY)

July 17, 2014 

3

exception of approved sleepovers, is prohibited, is considered neglect, and is grounds

for termination. Appellant signed the KenCrest Community Living Services Work

Rules and Guidelines Acknowledgment form on December 17, 2012.

On November 19, 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 November 25, 2013, challenging the prior decision by the Claims

Deputy. In the Appeal Request Notification, Appellant stated that he is a veteran, and

has suffered migraine headaches for “a very long time.”

The Delaware Department of Labor, Division of Unemployment Insurance

Appeals held a hearing, concerning the appeal to the Claims Deputy’s decision, on

December 19, 2013. The Appeals Referee, Geoffrey Silverberg, affirmed the Claims

Deputy’s decision, disqualifying Appellant for the receipt of unemployment benefits.

Appellant sent an Appeal Request Notification to the Board on December 31, 2013.

The Board held an administrative hearing regarding the decisions below on February

19, 2014.

During this administrative hearing, Appellant testified that he reported to work

on the day in question to fill in for another employee. Appellant did so despite the

facts that it was his day off, and that he had worked continuously for seven days at

that point. Another witness and representative of Employer, Pamela Cannon, testified

that the night shift staff is required to remain awake. On February 25, 2014, the Board

affirmed the prior decision of the Appeals Referee.

 Appellant submitted a Notice of Appeal of the Board’s decision to this
Fleury v. UIAB

C.A. No.: 14A-03-003 (RBY)

July 17, 2014 

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)).

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).

4

Court on March 10, 2014. Appellant submitted an Opening Brief in the instant

matter on May 16, 2014. Appellee submitted a letter to the Court in response to

Appellant’s Opening Brief on May 26, 2014.

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 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
Fleury v. UIAB

C.A. No.: 14A-03-003 (RBY)

July 17, 2014 

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).

5

DISCUSSION

 In his Opening Brief, Appellant challenges the Board’s decision by arguing

that he worked for Employer for nearly four years without taking any sick leave or

being criticized for bad performance. Appellant asserts that, on October 25, 2013,

on his day off, he received a call from his supervisor asking him to work in order

to cover a coworker’s shift. According to Appellant, he fell asleep during his shift

only after taking medication to relieve a migraine. Once two other supervisors

observed Appellant with his head down sleeping, the supervisors asked him to

leave. Subsequently, Appellant was suspended for a week without pay, and

terminated without any other warning. 

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

Employer knew about Appellant’s continuous migraines, and knew that
Fleury v. UIAB

C.A. No.: 14A-03-003 (RBY)

July 17, 2014 

6

Appellant had worked a full week prior to the day in question. However, Employer

still specially called Appellant in to work to help cover another employee’s shift

on Appellant’s day off. Appellant worked for Employer for nearly four years

without taking any sick leave or being criticized for bad performance. More

importantly, Appellant fell asleep during his shift only after taking medication to

relieve his migraine. There is no evidentiary showing of Appellant’s deviation

from Employer’s standard of conduct, except for this one incident. In light of these

facts, there appears to be no willful or wanton act or pattern of conflict in violation

of Employer’s interest by Appellant, to support a finding of just cause for

termination. Therefore, the Board abused its discretion in its decision below.

CONCLUSION

For the foregoing reasons, the decision of the Board is REVERSED.

IT IS SO ORDERED. 

 /s/ Robert B. Young 

 J.

RBY/lmc

oc: Prothonotary

cc: Mr. Fleury, Pro se

Catherine Damavandi, Esq.

Opinion Distribution

File