Bishop

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY

WILLIAM C. BISHOP, )
) C.A. No. 04A-04-005 JTV
Appellant, ))
v. ))
BRUCE TREXLER and )
UNEMPLOYMENT INSURANCE )
APPEALS BOARD, ))
Appellees. )

Submitted: October 6, 2004
Decided: January 28, 2005

William C. Bishop, Cheswold, Delaware. Pro se.
Bruce Trexler, Dover, Delaware. Pro se.
Upon Consideration of Appellant’s Appeal
Of Decision of Unemployment Insurance Appeal Board

AFFIRMED

VAUGHN, President Judge

Bishop v. Trexler, et al.
C.A. No. 04A-04-005 JTV
January 28, 2005

It appears from the record that Karen Trexler was also employed at the business or at the
very least assisted in the day to day affairs of the business.

ORDER

Upon consideration of the parties’ briefs and the record of the case, it appears
that:

1. William Bishop (“the claimant”) is appealing a decision of the
Unemployment Insurance Appeal Board (“the Board”). The claimant was employed
by Bruce Trexler d/b/a Trexler Towing (“the employer”) from November 15, 2002
until December 22, 2003. The claimant worked as a tow truck driver and as such he
was required to have a valid license. The claimant’s employment was terminated
after the employer received information from the Dover Police Department that he
was driving without a valid driver’s license.

2. Following his termination, the claimant filed for unemployment benefits and
the Claims Deputy found he was disqualified from receiving benefits because he had
been terminated for just cause. On appeal, the Appeals Referee reversed the decision
of the Claims Deputy and found that the termination was without just cause because
there had been no willful or wanton conduct on the part of the claimant. The Referee
also found that the employer knew that the claimant was driving without a license
and, nevertheless, continued to allow him to drive the tow truck. Bruce Trexler was
not present at the Appeals Referee hearing. His office manager, Paula Castle,
testified as an employer representative. The employer appealed the decision of the
Appeals Referee and a hearing was held before the Board. Bruce and Karen Trexler1
were present and testified at the hearing. The Board determined that the employer
reasonably believed the claimant did not have a valid license and that he was
discharged for just cause. The Board reversed the Referee and denied unemployment
benefits.

3. The limited function of this Court in reviewing an appeal from the
Unemployment Insurance Appeal Board is to determine whether the Board’s decision
is supported by substantial evidence.2 Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.3
The appellate court does not weigh the evidence, determine questions of credibility,
or make its own factual findings.4 In other words, the Board, not the court,
determines the credibility of the witnesses, the weight to be given their testimony, and
the inferences to be drawn therefrom.5 The court merely determines if the evidence
is legally adequate to support the agency’s factual findings.6 Therefore, if there is
substantial evidence for the Board’s decision, the decision will be affirmed.

4. The Board properly defined the standard for the hearing as follows:
In a discharge case, the employer has the burden of
proving by a preponderance of the evidence that the
claimant was terminated for just cause. A “preponderance
of the evidence” is defined to mean “the side on which the
greater weight of evidence is found.”7 Just cause is defined
as 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.”8

5. The claimant argues that he is entitled to receive unemployment benefits
since he was unaware that his driver’s license was suspended and because he was told
he could have his job back once the matter was resolved.9 The claimant’s arguments
on appeal go to the merits of his unemployment claim. He does not make any
allegation that the decision of the Board was unsupported by the record. It is not the
role of this Court to make findings of fact. The Board was in a better position to
make findings based on the testimony of witnesses and the evidence presented. This
Court’s review is limited to a determination of whether the decision of the Board was
free from legal error and supported by substantial evidence.

6. Based upon the evidence presented at the hearing, the Board concluded that
there was insufficient evidence to suggest the employer knew the claimant’s license
was suspended but still allowed him to drive. The Board listened to the testimony of
Bruce Trexler and his wife who both testified that they did not know the claimant’s
license was suspended until the day he was stopped by the Dover Police. Once they
were advised by the police that the claimant did not have a valid driver’s license, they
terminated his employment. Although the claimant testified that he had previously
notified the employer of the problem with his license,10 the Board had discretion to
give more weight to the testimony of Bruce and Karen Trexler. The Board also
concluded that failure to have a valid driver’s license by one employed as a tow truck
driver is just cause for terminating the person’s employment.

7. The Board determined that the employer met its burden of proof by showing
just cause for discharging the claimant. While the Appeals Referee found differently,
he did not have the benefit of hearing the testimony of Mr. and Mrs. Trexler who
were not present at that hearing.

8. The decision of the Board is supported by substantial evidence in the record
and free of legal error.

Bishop v. Trexler, et al.
C.A. No. 04A-04-005 JTV
January 28, 2005

Accordingly, the decision of the Board is affirmed.

IT IS SO ORDERED.
/s/ James T. Vaughn, Jr.
President Judge
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