IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
REYNOLDS C. ABRAMS, ) 
) 
Appellant, ) 
) 
) C.A. No. 01A-03-009-PLA 
) 
UNEMPLOYMENT INSURANCE ) 
APPEAL BOARD, and the CITY OF ) 
WILMINGTON, a political ) 
subdivision of the State of Delaware, ) 
) 
Appellees. ) 
Submitted: August 20, 2001 
Decided: October 22, 2001 
UPON APPEAL FROM THE UUEMPLOYMENT INSURANCE APPEAL 
BOARD 
REVERSED AND REMANDED. 

OPINION 

Philip B. Bartoshesky, Esquire, Wilmington, Delaware for Appellant. 
Stephani J. Ballard, Esquire, Dover, Delaware for Appellee, Unemployment 
Insurance Appeal Board. 
Cathy A. Jenkins, Esquire, Wilmington, Delaware for Appellee, City of 
Wilmington. 

ABLEMAN, JUDGE 

This is an appeal by a former employee of the City of Wilmington 
from a decision of the Unemployment Insurance Appeal Board ("Appeal 
Board") denying unemployment benefits after he was terminated for 
allegedly directing profanity to other employees in the workplace. 
Appellant, Reynolds C. Abrams ("Claimant") began employment with 
Appellee, the City of Wilmington on February 1998. He was terminated on 
November 6, 2000. Claimant was employed as a youth and family 
coordinator for the Deter Prevention Network at the William Hicks 
Anderson Community Center. The Claimant’s duties included coordinating 
Youth Center activities such as basketball for children, for which Claimant 
was required to purchase equipment from time to time. Claimant was 
frustrated by the bureaucratic obstacles that prevented him from properly 
fulfilling these responsibilities. 

Claimant’s termination resulted from a situation that occurred on 
October 26, 2000, the facts of which are largely undisputed. Claimant had a 
disagreement over the telephone with his supervisor Claude McCrea 
("McCrea") concerning the ordering of T-shirts for the basketball players. 
The argument occurred in an inner office where the Claimant was in the 
presence of his co-worker, Rochelle Rowe ("Rowe"). Claimant was 
apparently given incorrect information by his supervisor concerning the Tshirt 
vendor. The dispute grew heated with both parties raising their voices 
above average conversational tone. 

After the conversation, the Claimant told Rowe, "f*** it, I don’t’ give 
a f*** what you tell him", left the inner office, stating "f*** you, f*** all 
you all", and proceeded out the door. It is unclear to whom the latter 
expletive was directed. The Claimant contends that he did not direct his 
comments to anyone specifically and that they were just general statements 
made to vent his frustration. The two secretaries sitting outside the inner 
office testified that Claimant was looking in their direction when he used 
profanity but they were not sure whether the expletives were specifically 
directed towards them. Sometime after the incident, Claimant apologized to 
the secretaries. McCrea testified that one of these two secretaries, in 
addition to Rowe, had reported the incident to McCrea because they were 
upset by it. 

According to the testimony of various witnesses, profanity is 
occasionally used in the office by a number of employees. Claimant 
testified that he has never been given an employee handbook nor had he 
been advised of office policies. Claimant further stated that he had never 
received a warning, written or otherwise, about his profanity and was never 
aware that it could lead to termination. There was no testimony establishing 
any prior incidents of profanity. 

Initially, the City asserted several different reasons for Claimant’s 
termination, including falsifying time records, inappropriate conduct in 
making verbal statements, and poor job performance. Following a hearing 
on November 22, 2000, the Department of Labor’s Claim Deputy found that 
there was no just cause for termination because the City had provided no 
documentation to support its assertions. The Deputy granted Claimant 
unemployment benefits. In its appeal to the Appeals Referee, the City 
abandoned its initial assertions and grounded its appeal to the Appeals 
Referee solely on the October 26, 2000 incident involving profanity. 

At the hearing before the Referee, the Claimant was not represented 
by counsel. The Referee heard testimony from various witnesses but refused 
to allow the Claimant to present any evidence to support his contention that 
the justification provided by the City for his termination was pretextual. The 
Referee found just cause for the termination because the Claimant had 
displayed a wanton disregard for the expected standard of conduct. 
Claimant was therefore disqualified from receiving unemployment benefits. 

At the subsequent hearing before the Appeal Board on February 21, 
2000, the Claimant was represented by counsel. The Appeal Board heard 
additional testimony, but Claimant was again denied the opportunity to 
introduce evidence of a pretextual basis for his termination. The Board 
refused to consider this evidence on the ground that there was no such 
evidence in the record from the Referee, and that the exclusive issue to be 
determined by the Board was whether just cause existed for the termination. 

In this appeal, Claimant argues that it was error for the Appeal Board 
to refuse to allow him to present evidence that the City’s justification for 
termination was pretextual. Claimant further submits that the Appeal Board 
erred in concluding that just cause existed for termination due to wanton 
conduct. The City, on the other hand, contends that the Appeal Board’s 
determination of just cause was proper, that the City was not required to 
issue the Claimant a warning to refrain from the use of profanity, and that 
the Appeal Board appropriately rejected evidence of pretext because it was 
simply not relevant. 

The function of this Court on an appeal from a decision of the 
Unemployment Insurance Appeal Board is to determine whether it is 
supported by substantial evidence and is free from legal error.1 Substantial 
evidence is such relevant evidence that a reasonable person might accept as 
adequate to support a conclusion.2 It is not the function of this Court to 
weigh evidence, determine questions of credibility, or make its own factual 
findings.3 The Court will only reverse a decision of the Appeal Board if its 
findings are not supported by substantial evidence, or where the Appeal 
Board has made a legal mistake. 

This Court concludes, from its review of the record, that the Appeal 
Board erred in its refusal to receive any evidence from the Claimant of a 
potentially pretextual reason for Claimant’s dismissal. The Appeal Board 
insisted instead that the exclusive issue before it pertained to the events that 
took place on October 26, 2000, and whether Claimant’s behavior on that 
Unemployment Insurance Appeal Board v. Duncan, Del. Supr., 337 A.2d 308, 309 (1975). 
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994). 
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). 
Delgado v. Unemployment Insurance Appeal Board, Del. Super., 295 A.2d 585 (1972).
date amounted to willful and wanton conduct to justify a termination based 
on just cause. This Court disagrees. 

The Appeal Board is required to accept all evidence that is relevant, 
material and competent. Exclusion of such evidence constitutes grounds for 
reversal if the exclusion is prejudicial.5 In this case, evidence of pretext is 
highly relevant to determine whether just cause actually existed for the 
Claimant’s termination, particularly in light of the fact that the City had 
earlier asserted three other grounds for its decision but abandoned them on 
appeal to the Appeals Referee, substituting the incident involving profanity, 
which had not been argued previously. After the Claims Deputy had 
rejected the first three alleged grounds for Claimant’s termination it only 
then raised the October 26th incident to support is claim of just cause. Under 
these circumstances, exclusion of this evidence was prejudicial to Claimant.6 
Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 32 (1995); Clayton Ridings, III, Claimant v. 
Unemployment Insurance Appeal Board and Department of Natural Resources and Environmental 
Control, Del. Super., 407 A.2d 238, 240 (1979). 

The Lensfest Group d/b/a Suburban Cable v. Jeffers and Unemployment Insurance Appeal Board, Del. 
Super., C.A. No. 00A-01-006-NAB, 2000 Del. Super. LEXIS 459, *14 Barron, J. (August 14, 2000); See 
also Austin v. Fisher Scientific Company, Del. Super., C.A. No. 92A-03-007, 1993 Del. Super., LEXIS 
147, *15 - *16 Goldstein, J. (April 22, 1993) (Finding that if allegations of pretext are true then just cause 
does not exist for termination); Hudley v. Riverside Hospital, Del. Super., C.A. No. 92A-11-019, 1993 Del. 
Super., LEXIS 421, *29 - *34 Cooch, J. (Sept. 27, 1993) (Finding that the Referee had fulfilled his duty to 
accept evidence of pretext to determine if just cause existed for the termination of an employee).

The employer points out that, if the question of pretext was relevant, 
Claimant would have mentioned it in his opening statement to the Board, but 
he failed to do so. This argument is not persuasive. The issue is not what 
was emphasized or mentioned by counsel, but whether just cause existed for 
the Claimant’s termination. If a reason for termination exists other than 
what the City chose to assert, evidence of this fact is clearly relevant. The 
materiality of this information is not diminished merely because it was not 
raised directly in the opening statements presented to the Board. 
Furthermore, Claimant implied the possibility of the existence of unstated 
reasons for the termination when he asserted that the profanity was not the 
real cause for termination in this case.7 

The Board’s finding of just cause based on the willful and wanton 
conduct of the Claimant is also based upon somewhat conflicting views of 
his conduct. For example, although the Referee below concluded in its 
decision that the "frustration caused by dealing with administrative red tape 
is understandable8," the Board nevertheless found that this single outburst 
amounted to willful misconduct. In a case involving similar circumstances, 
Dozier v. Uncle Willie’s Deli, the Court examined a single incident of the 
use of profanity and applied the rationale that profanity is classified as 
willful misconduct when there is no justifiable provocation for profanity. In 
this instance, the Referee found the Claimant’s frustration was 
understandable which would lead to the contrary conclusion, i.e., that his 
outburst was justifiably provoked. 

Moreover, the Appeal Board’s conclusion that the Claimant had 
directed his comments toward the two employees sitting outside the inner 
office is not supported by the evidence. The evidence on this issue consisted 
of the Claimant’s testimony that the comments were not directed toward 
them, and the testimony of the two employees who were not sure whether 
the comments were specifically directed at them. Thus, there was no 
evidence presented to support the Appeal Board’s conclusion that the 
comments were directed at these two employees. 

The Court is also troubled by the fact that Claimant never received an 
employee handbook nor had he ever been advised of a policy that prohibited 
office profanity. While the use of such language can generally be assumed 
Del. Super., C.A. No. S91A-04-002, 1992 Del. Super. LEXIS 527, *8 - *10 Lee, J. (Dec. 15, 1992).
to be unacceptable, when considered in conjunction with testimony that 
other employees had been known to use profanity in the office without being 
terminated, the Board’s restriction of the admission of the other evidence 
offered by Claimant simply compounds the prejudice to him. 

The Board’s error in excluding relevant evidence requires that its 
decision granting benefits to Claimant be reversed and remanded. On 
remand, the Appeal Board should revisit the facts related to this issue in 
conjunction with evidence of a possible pretextual basis for termination, and 
it should also reconsider the existence of just cause. The case is remanded to 
the Appeal Board for further hearing consistent with this decision. Findings 
on the issue of the existence of just cause should be made based on all of the 
evidence, including the additional proffered testimony that was previously 
excluded. 

IT IS SO ORDERED. 
___________________________ 
PEGGY L. ABLEMAN, JUDGE 
PLA:jmd 
cc: Philip B. Bartoshesky, Esquire 
Stephani J. Ballard, Esquire, DAG 
Cathy A. Jenkins, Esquire 
Original to Prothonotary