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

ENT COUNTY

MARIO FLEURY, : : C.A. No: K14A-03-0 03 (RBY) Appellant, : : v. : : UNEMPLOYMENT INSURANCE : APPEAL BOARD, : : Appellee. :

Submitted: June 19, 2 014 Decided : July 17, 2014
Upon Con sideration of Appellan t’s Appeal from the Une mployment Insurance A

ppeal Board REVERSED
ORDER

Mario Fleur y, Pro se. Catherin e Damav and i, Es qui re, De put y Atto rne y G eneral, Department of Justice, Wilmington, Delaware for Unemployment Insuran ce Appeal Boar d.

Young, J.Fleury v. UIAB

C.A . No .: 1 4A- 03- 003 (R

BY) July 17, 2014

2 SUMMARY This is an appeal from a decision of the U nemp lo yme nt Insurance Appeal Board (“th e Board” ) deny ing unem ployment benef

its to Mario Fleury (“

Appellant”),

a former em

ployee of KenCrest Com munity Living Services ( “KenCr est Serv ices”

or “Em ployer ”). App ellant wa s terminated for violating Empl oy er’s po licy of sleeping while on duty. The re i s no evidenti ary s howing of A ppellant’ s deviation from Employer’s expected

standard o f conduct, except fo r the one incident in questio n. On the record, there appears to be no willful or wan ton act by

App ellant to su

pport a finding of just caus e for terminatio n. He nce, the d ecision of the Board

is REVERSED

. FACTS Appellant was em ployed by Ke nCrest Services fr om June 7, 2010 to October 25, 2013. Appe llant wor

ked full-t ime a s a Reside ntAdvisor, earning $11.41 per hour. Between 1:30 a.m . and 1:45 a .m. on October 17, 2013, A

ppellant suffere d a mi graine headache. Consequently, A ppellant took two A leve table ts, and put his head dow

n to rest in order to relieve

his headache. Two witnesses for Em ployer , Suzann e Casey

and Wendy Wilson, conducted a

n unannounce d night chec k, and found Appe llant sleeping on the job. Appellant woke up app roximately five minutes after the two witn ess es s at d own nex t to him. A ppe lla nt d eni ed s leep ing on d uty. On October 25, 2013, Direct or Kim Va ughn of Ken Crest Services se nt Appellant alet ter, noti fying h im tha t his em ployment had been term

inated for his policy violation of

sleeping on duty. The Ke nCrest Co m munit y Living Services Work Rules and Guide lines s tate, in Sec tion XIII , that sle eping while on duty, with theFleury v. UIAB

C.A . No .: 1 4A- 03- 003 (R

BY) July 17, 2014

3 exception of approved sleepovers, is prohibited, is considered neglect, and is grounds for te rmi nation. Appellant signed the KenCrest Comm unity Living Services Work Rules and G

uidelines A cknowledg

ment f orm on Decem ber 17, 201 2. On November 19, 2013, the Delaw are Department of Labor Claims Dep uty , determ ined t hat Appel lant was d isqualifie d for unem

ployment benef

its, beca use Appellant was dischar ged from

work for just cau se. Appe llant sent a n Appeal R

equest Notifica tionon November 25, 2 013, chall eng in g t he p rio r de cis io n b y th e Cl aims Depu ty. In the Appeal Reque st Notific ation, A ppellant st ated that h e is a veteran, and has suffere d migraine head aches for “a very long time.” The Delaw are De

partm ent of La

bor, Div is ion o f Unemploy ment Insurance Appeals held a hearing, concerning the appeal to the C laims Dep uty’ s decision, on December

19, 2013. T

he Appea ls Referee, Geoffrey Sil ver ber g, a ffi rmed th e Cl aims Deput y’s decision, disqualify ing Appella

nt for the rece ipt

of unem ployment benef

its. Appellant sent an Appeal Request N otificati on to the Boar d on Dece mber

31, 2013. The Board held an administrative hearing regarding the decisions below on February 19, 2014. Duringthis adm

inistrativ e hearing , Appellant testified that he reported to work

on the day in que stion to fill in for anot

her em ployee . Appell ant did so de spite the facts that it wa s his day

off, an d that he ha d w orked 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. Appell ant subm

itted a N otice of A

ppeal of th e Board’ s decision t o thisFleury v. UIAB

C.A . No .: 1 4A- 03- 003 (R

BY) 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 61 0, 614 (Del. Super . 1981 ) (cit ing Consolo v. Fed. Mar

. Comm’n , 383 U.S. 607, 620 (1966)).

3 Id. (quot ing 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) (quot ing Straley v. Advanced Staffing, Inc., 2009 WL 1228572, a

t *2 (Del. Super. April 30, 2009).

5 Lehman Br

others Ban k v. State

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

6 Anchor M

otor Freig

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

4 Court on Ma

rch 10, 201 4. Appel lant subm itted an O pening Brie f in the inst ant matter on May

16, 2014. A

ppellee sub mitte d a letter to the Cour

t in respons e to Appellant ’s Ope ning 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 m ind might accept as adequate t o suppo rt a conclu sion.” 2 It is “more than a scintilla, but less than prepond erance of the evidence.” 3 An abuse of discretion will be found if the board “ac ts arbitrarily

or capac iously. ..exce eds 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 agenc y has in terpr eted a nd ap plie d a sta tute , the co urt’s review i s de novo

. 5 In the absence of an error of law, lack of substantial evidence or abuse of

discretio n, the Cou

rt will no t disturb the

decision of

the board. 6Fleury v. UIAB

C.A . No .: 1 4A- 03- 003 (R

BY) July 17, 2014

7 Wilson v. Unemployment Ins. Appe al Bd. , 2011 WL 3243366, (Del. Super. Jul. 27, 2011).

8 Tuttle v. M

ellon Bank

of Delawar

e , 1995, 659 A.2d 786 (Del. Super. 1995). 5 DISCUSSION In his Ope ning Brief

, Appell ant challenges the Boa rd’s de cision by

arguing that he wo rked for E

mployer for ne arly four y ears wi thout taking a ny sick leave or being crit icized fo r bad perf

orma nce. Appellant as serts that , on Octo ber 25, 201 3, on his day off, he received a call fr om his supervisor asking him to work in order to cover a coworker’s shift. According to Appellant, he f ell asleep during his shift only after taking medication to relieve a migraine. Once tw o other supervisors observed A

ppellant w ith his head

down slee

ping, the s upervisors asked him to leave. S ubsequently , Appell ant was su spended for a week without pay , and terminated with out any other warning. The issue before the Board was whether Appellant’ s employer had sufficie nt just ca

use to discha

rge Appe llant from

his em ployment. In a

discharge case, th e em

ployer must sh ow by a

preponderance of th e evidenc e that the claim ant was di scharged for just cause in c onnection w ith his wor k. 7 Just cause exists where the cl aima

nt com mits a willful o r wanton a ct, or e ngages in a willful or wanton pattern of

conflict i n violation of

the em ployer ’s inter

est, his du

ty to the emplo yer or

his expect ed standar

d of conduct . In De laware , one fac tor utilize d in determining just cause for discharging an em ployee is whether the em ployee receive d a prior w arning of t he term ination. 8 Employer knew about Appellant’s continuous migraines, and knew thatFleury v. UIAB

C.A . No .: 1 4A- 03- 003 (R

BY) July 17, 2014

6 Appellant had worked a full week prior to the day in question. However , Employ er still specially called Appellant in to work to help cover another employee’s shift on Appellant’s day off. A ppellant worked for Employ er for nearly four years without taking any sick leave or being criticized for bad perform ance. More impor tantly , Appell ant fell a sleep during his shift o nly af ter taking medic ation to relieve h is migr

aine. There is no evidentiary showing of Appellant ’s devia tion from Emp loyer ’s stand ard of con duct, exc ept for thi s one incident. In ligh t of these facts, there app ears to be

no willful

or wanton

act or pa ttern of c onflict in v iolation of Em ployer ’s inter

est by Appellant , to support a finding of

just cau se for termination. The refore, the Bo ard abused its discr etion in its decis ion belo w. CONCLUSION For the f oregoing re asons, the

decision of

the Board

is REVERSED

. IT IS SO ORDERED

.

/s/ Rober t B. Youn g J. RBY /l mc oc: Prothonotary cc: Mr. Fleury, Pro se Catherin e Damavandi, E sq. Opinion Di stribution File