IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
DIAMOND STATE PORT )
CORPORATION, )
)
Employer-Appellant, )
) 
v. ) C.A. No. 02A-03-006 JRS 
) 
STANLEY FERGUSON, ) 
) 
Claimant-Appellee, ) 
) 
and ) 
) 
UNEMPLOYMENT INSURANCE ) 
APPEAL BOARD ) 
) 
Appellee. ) 
Submitted: October 24, 2002 
Decided: January 23, 2003 

O R D E R 

This 23rd day of January, 2003, upon consideration of the appeal of Diamond 
State Port Corporation ("Diamond State" or "Employer") from the decision of the 
Unemployment Insurance Appeal Board (the "Board") dated March 7, 2002, granting 
Stanley Ferguson’s ("Mr. Ferguson") application for benefits, the parties’ briefs and 
the record below, it appears to the Court that: 

1. Mr. Ferguson worked for Diamond State from March of 1993 until 
October of 2001 as a meat packer. In the months leading up to October, 2001, Mr. 
Ferguson had made an arrangement with his supervisor whereby he would be sent 
home from work in the event concerns were raised about his work. It was agreed that 
such issues would be addressed the following day or at a later date, and that Mr. 
Ferguson would not be terminated from his position solely because he had been 
excused from the job site for the day. 

2. On October 11, 2001, Mr. Ferguson worked in the warehouse wrapping 
meat pallets. Mr. Ferguson’s usual supervisor was not present that day. At some 
point during the morning, the new supervisor, Michael Phillips ("Mr. Phillips"), 
instructed each employee to wrap five pallets in the morning and five pallets in the 
afternoon. Mr. Ferguson wrapped his five pallets in the morning and, before lunch, 
he began to wrap his five pallets for the afternoon. He marked these pallets with his 
initials. After lunch, a co-worker claimed that he had wrapped the pallets marked 
with Mr. Ferguson’s initials. An argument ensued, and Mr. Phillips stepped in to 
resolve the conflict. Mr. Phillips directed Mr. Ferguson to complete the co-worker’s 
pallets. Mr. Ferguson refused. Mr. Phillips repeated this order, and when Mr. 
Ferguson continued to argue, Mr. Phillips directed Mr. Ferguson to leave the work 
site. Again, Mr. Ferguson refused. Mr. Phillips called security personnel who 
repeated the order to leave. Mr. Ferguson finally complied and was told not to return 
until Philip Immediato ("Mr. Immediato"), the Director of Human Resources, 
contacted him. Over the next several days, Mr. Immediato gathered information 
about the October 11th incident and terminated Mr. Ferguson thereafter. 

3. Mr. Ferguson filed a claim for unemployment insurance benefits with the 
Delaware Department of Labor on September 23, 2001. The Claims Deputy denied 
Mr. Ferguson’s request for benefits, finding that Diamond State had "just cause" to 
terminate him for insubordination and misconduct. On appeal, the Appeals Referee 
affirmed the Claims Deputy, concluding that Mr. Ferguson refused to follow two 
orders from his supervisor and that "the claimant was discharged from work for just 
cause." Mr. Ferguson appealed again, and the Board reversed the Referee’s decision. 
In support of their decision, the Board stated: "[t]he Board does not find that there 
was a blatant refusal to perform work, but rather that the claimant thought he had 
completed all the work which he was required to do." Therefore, the Board 
concluded that Diamond State did not have "just cause" to terminate Mr. Ferguson. 

4. Diamond State, in the current appeal, makes two primary arguments 
addressing the Board’s factual finding that Mr. Ferguson’s "behavior can be 
accounted for by the fact that he had an arrangement with his previous supervisor 
whereby, at times, he would refuse to do work and then be sent home, but not fired." 
First, Diamond State argues that to reach this conclusion, the Board relied solely on 
Mr. Ferguson’s account of a "hearsay" communication he had with his former 
supervisor about their prior arrangement. Diamond State’s second contention is that 
the Board’s explanation for Mr. Ferguson’s behavior does not account for Mr. 
Ferguson’s refusal to leave the work site when requested. 

5. The role of the Court when reviewing an appeal from the Board is well 
settled. The Court reviews the Board’s decision to determine whether its factual 
findings are supported by substantial evidence and reviews its ultimate decision to 
ensure that it is free from legal error. Substantial evidence has been defined as 
relevant evidence that a reasonable mind might accept as an adequate basis to support 
a conclusion. Substantial evidence requires "more than a scintilla but less than a 
preponderance" of evidence to support the finding. The Court does not weigh 
evidence, assess credibility, or make independent factual findings. 

6. Both parties agree that Diamond State discharged Mr. Ferguson and, 
therefore, Title 19, Section 3315(2) of the Delaware Code applies. Under Section 
3315(2), an employee is not qualified to receive benefits "[f]or the week in which the 
individual was discharged from his work for just cause in connection with the 
individual’s work and for each week thereafter until the individual has been employed 
in each of 4 subsequent weeks." "Just cause" is defined as a "wilful or wanton act 
in violation of either the employer’s interest, or of the employee’s duties, or of the 
expected standard of conduct." The employer must prove by a preponderance of the 
evidence that the employee was discharged for "just cause." 

7. Even though Mr. Ferguson refused two directives from Mr. Phillips, the 
Board found that Diamond State did not have "just cause" to fire Mr. Ferguson. The 
Board’s conclusion that Diamond State did not have "just cause" to terminate Mr. 
Ferguson for his initial refusal to perform his work as directed is supported by 
substantial evidence. Mr. Ferguson’s uncontested testimony supports the Board’s 
finding that the prior supervisor had permitted Mr. Ferguson to refuse to work and to 
leave for the day. If the employer tolerated this "insubordinate" act in the past, 
Delaware law requires the employer to give notice to an employee before terminating 
the employee for the same conduct. Looking only at Mr. Ferguson’s past 
arrangement with his former supervisor and without regard to the hearsay testimony 
relating to the former supervisor’s statements, Diamond State did not establish "just 
cause" because Diamond State did not give the requisite notice. 

8. Mr. Ferguson, however, also disregarded Mr. Phillip’s second instruction 
to leave the work site. Mr. Ferguson admits to his noncompliance with Mr. Phillips’ 
order, which also creates substantial evidence in the record of insubordination. The 
Board’s factual findings described the prior arrangement between Mr. Ferguson and 
his supervisor: "at times, he would refuse to do work and then be sent home, but not 
fired." The prior arrangement contemplated Mr. Ferguson being sent home, but it 
did not contemplate that Mr. Ferguson could refuse the supervisor’s instructions to 
leave. There is no evidence to indicate that Diamond State tolerated Mr. Ferguson’s 
disobedience of an order to leave the work site in the past. Therefore, the Court must 
now consider if Mr. Ferguson’s refusal to leave the work site constituted "just cause" 
under Delaware law. 

9. Although the Board did not address Mr. Ferguson’s refusal to leave the 
work site in its decision, a remand is unnecessary. The testimony that Mr. Ferguson 
refused to leave on October 11th and that Diamond State had not tolerated his refusal 
to leave in the past stands uncontested in the record. These undisputed facts are "just 
cause" for termination under Delaware law. The facts of Foraker v. Diamond State 
Recycling are analogous. InForaker, the supervisor instructed the employee to park 
his truck and go home. The employee refused to follow this instruction and 
continued to argue his point, much like Mr. Ferguson.16 The court concluded that the 
employee was terminated for "just cause," stating that "[a]n employee’s refusal to 
follow specific instructions or orders from a superior is clearly ‘just cause’ for 
termination."17 Similarly, Mr. Ferguson’s noncompliance with the employer’s 
reasonable instruction to leave the work site provided "just cause" termination. 
Because Diamond State demonstrated "just cause" under Section 3315(2), Mr. 
Ferguson is disqualified from receiving unemployment insurance benefits. 

10. Based on the foregoing, the Board’s decision to grant Mr. Ferguson’s 
application for unemployment insurance benefits is REVERSED. 

IT IS SO ORDERED. 

Judge Joseph R. Slights, III 
Original to Prothonotary 
cc: Stanley Ferguson 
Sherry V. Hoffman, Deputy Attorney General 
Stephani J. Ballard, Esquire