SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 
E. SCOTT BRADLEYP.O. Box 746 
JUDGE COURTHOU SE 
GEORGETO WN, DE 19947 
April 7, 2004 
A. Dean Betts, Jr., EsquireMarshall J. Wynne 
Betts & Betts, P.A. 28435 W. Meadowview Drive 
15 South Race Street Milton, DE 19968 
P.O. Box 770Georgetown, DE 19947 
RE: Advanced Wall Systems v. Marshall J. Wynne 
C.A. No. 03A-06-002 RFS 
Date Submitted: January 14, 2004 

Dear Mssrs. Betts and Wynne: 

This is my decision on Advanced Wall Systems’ ("Advanced") appeal of the Unemployment 
Insurance Appeal Board’s (the "Board") decision awarding Marshall J. Wynne ("Wynne") 
unemployment benefits. The Board found that Wynne’s employer, Advanced, did not have just 
cause to terminate his employment, rendering him eligible for unemployment benefits. Wynne was 
employed by Advanced as a "Dryvit" installer. Advanced argued that it terminated Wynne because 
of his poor attitude and performance. The Board found that he was terminated because of a single 
unexcused absence. I have reversed the Board’s decision for the reasons stated herein. 

DISCUSSION 

A. Standard of Review 
The Supreme Court and this Court repeatedly have emphasized the limited appellate review 
of the factual findings of an administrative agency. The function of the reviewing Court is to 
determine whether the agency’s decision is supported by substantial evidence, and to review 
questions of law de novo. Substantial evidence means such relevant evidence as a reasonable mind 
might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, 
determine questions of credibility, or make its own factual findings. It merely determines if the 
evidence is legally adequate to support the agency’s factual findings. 

B. The Board’s findings are not supported by substantial evidence. 
The record below fails to provide substantial evidence for the Board’s finding that Wynne 
was terminated from his employment because of a written policy that three unexcused absences will 
result in termination. It is clear from the record that Wynne was not terminated solely as a result of 
the January 21, 2003 incident, where Wynne left the job site without permission prior to finishing 
his work. Rather, the record supports a finding that Wynne was terminated due to problems with his 
performance and his attitude. Advanced testified that it informed Wynne that his job was in jeopardy 
and that he would be terminated if his work ethic did not improve. Wynne even stated during the 
hearing that, "[w]hen he told me I was discharged he said it was for my attitude." A Board member 
responded by stating that, "I thought you were discharged because you left the job and didn’t tell 
anybody." Wynne then said that, "the day he fired me he told me it was for my attitude." Wynne 
made a similar claim on his application for unemployment benefits where he stated that he was 
discharged because Advanced didn’t like his attitude. Wynne’s decision to leave the job site early 
on January 21, 2003, without completing the work or putting the supplies away, was merely the last 
straw for Advanced. 

Despite evidence to the contrary, the Board found that Wynne was terminated without just 
cause and, therefore, was eligible for unemployment benefits. The Board concluded that Wynne had 
three unexcused absences prior to the January 21, 2003 incident, but was not terminated. Based on 
this, the Board found that Advanced did not have just cause to terminate Wynne because it failed to 
follow its own policy. However, Advanced did not implement the unexcused absence policy until 
December 2002. Wynne signed the policy on December 8, 2002. The policy provided that three 
unexcused absences would result in termination. The record indicates that Wynne had at least four 
unexcused absences during his employment with Advanced. However, testimony by Advanced’s 
representative and time sheets submitted into evidence indicate that any tardiness or 
unexcused absence occurred prior to the implementation of the written policy. Therefore, the written 
policy does not apply here. 

Only where an employee is discharged for just cause does he forfeit his unemployment 
benefits. Delaware Courts have defined "just cause" "as a wilful 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." It is well established that "[w]ilful or wanton conduct requires a showing 
that ‘one was conscious of his conduct or recklessly indifferent of its consequences ... [but][it] need 
not necessarily connote bad motive ... or malice.’" In determining just cause, "[e]mployee 
performance and conduct is highly relevant." However, misconduct will not give rise to just cause 
for termination where "an employer has consistently tolerated certain misconduct on the part of an 
employee, or when an employer has already punished the employee by a mere verbal reprimand." 
Moreover, "just cause includes notice to the employee in the form of a final warning that further poor 
behavior or performance may lead to termination." 

The Referee and Claims Deputy found that Advanced had just cause to terminate Wynne. 
I agree. Wynne was warned on several occasions that he would be terminated if his performance and 
attitude did not improve. Furthermore, his decision to leave work early on January 21, 2003, without 
permission, and without putting away the supplies, was made with a reckless disregard of the 
consequences of his actions and clearly against Advanced’s interests. In Pinghera v. Creative Home 
Solutions, Inc., 2002 WL 31814887 (Del. Super. Ct.), this Court found just cause to terminate an 
employee who was warned several times that he would be terminated if he did not improve his 
performance and attitude. Similar to the case at bar, the employee was given a final warning and his 
willful and wanton conduct, despite the final warning, constituted just cause for his termination. 
Upon consideration of Advanced’s opening brief, recognizing that any opposition thereto has 
been abandoned, I find that there is not substantial evidence to support the Board’s finding that 
Advanced terminated Wynne without just cause and solely because of the incident on January 21, 
2003. 

CONCLUSION 

The Unemployment Insurance Appeal Board’s decision is reversed for the reasons stated 
herein. 

IT IS SO ORDERED. 

Very truly yours, 
E. Scott BradleyESB:tll 
cc: Prothonotary’s Office 
Unemployment Insurance Appeal Board