IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
CALDWELL STAFFING SERVICES, ) 
) 
Employer-Appellant, ) 
) 
v. ) C.A. No. 02A-07-003 JRS 
) 
SHANTELL L. WILLINGHAM, ) 
) 
Employee-Appellee, ) 
) 
and ) 
) 
UNEMPLOYMENT INSURANCE ) 
APPEAL BOARD, ) 
)
Appellee. )
Submitted: April 28, 2003 
Decided: May 22, 2003 
Appeal from the Unemployment Insurance Appeal Board. 
REMANDED. 

O R D E R 

This 22nd day of May 2003, upon consideration of the appeal of Caldwell 
Staffing Services ("Caldwell Staffing") from the decision of the Unemployment 
Insurance Appeal Board (the "Board"), dated June 23, 2002, granting Shantell 
Willingham’s application for benefits, it appears to the Court that: 

1. This appeal follows the Board’s award of unemployment benefits to Ms. 
Willingham after the Board found that Caldwell Staffing did not have "just cause" to 
terminate her. On appeal, Caldwell Staffing contends, in addition to other arguments, 
that the Board violated its due process right to participate meaningfully in the hearing 
because the Board prevented Mr. Randall, the President of Caldwell Staffing, from 
cross examining witnesses. The parties agree that the record of the Board’s hearing 
does not indicate that a Board member prohibited Mr. Randall’s cross examination 
of witnesses. In its appellate briefing, Caldwell Staffing submitted an affidavit from 
Mr. Randall in which he alleges that the relevant conversation occurred before the 
hearing and off the record. 

2. By order dated February 6, 2003,1 the Court concluded that it could not 
decide the due process issue without a threshold factual finding from the Board 
regarding whether a Board representative did or did not restrict Mr. Randall’s right 
of cross examination. The Court remanded the case and instructed the Board to 
"receive verified statements from all of its representatives involved in the hearing 
addressing whether Mr. Randall was advised that he could not cross examine 
witnesses during the hearing." Furthermore, the Court directed: "[f]actual findings 
on remand should then be prepared in writing and submitted to the Court within forty
five (45) days of this Order." 

3. In response to the February 6th order, the Board has submitted affidavits 
from all of the Board members who were present at the hearing. Each affiant has 
stated that he or she "did not make any representations to James D. Randall, the 
Caldwell representative, or any other party in this case ‘off of the record,’ regarding 
cross-examining witnesses or any other matter." Caldwell Staffing contends that 
these affidavits do not constitute adequate "factual findings" as contemplated by the 
February 6th order. The Court agrees. 

4. The Court has a limited role in reviewing appeals from the Board. The 
Court may not look beyond the record in considering the appeal. Most importantly, 
the Court may not make its own factual findings. Because the Board only submitted 
affidavits, the Court is now faced with a record containing conflicting sworn 
testimony. The Court may not reconcile the inconsistent affidavits or determine de 
novo which is more credible; this fact-finding function is beyond the province of the 
Court. Rather, the Board, as the trier of fact, must weigh Mr. Randall’s affidavit 
against the Board members’ affidavits to determine whether a Board representative 
told Mr. Randall that he may not cross examine witnesses during the hearing. After 
weighing the evidence, the Board must either conduct further proceedings to 
determine the issue or decide the issue on the affidavits alone. In either event, at the 
conclusion of this process, the Board must prepare its factual findings in writing with 
respect to this issue and submit them to the Court. The Court will then review the 
findings in the context of the appropriate standard of review. 

5. The Court again REMANDS this case to the Board. The Court will allow 
twenty (20) days for the Board to submit separate factual findings in compliance with 
the foregoing instructions. 

9The Board should conduct whatever proceedings are necessary to reach this factual 
determination, whether requested by the parties or undertaken on the Board’s own accord. 
10While the outcome of this process may appear to be a foregone conclusion, the process 
must be undertaken (in earnest) nevertheless before this Court can properly undertake appellate 
review. 


IT IS SO ORDERED. 
Judge Joseph R. Slights, III
Original to the Prothonotary.