IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
E.I. DUPONT DE NEMOURS ) 
AND COMPANY, INC. ) 
) 
Appellant, ) 
v. ) C.A. # 03A-04-033-FSS 
) 
TIMOTHY J. DOWNES )
and Unemployment Insurance )
Appeal Board, )
)
Appellees. )
Submitted: September 16, 2003 
Decided: December 29, 2003 

ORDER 

Upon Appeal from the Unemployment Insurance Appeal Board – 
REMANDED for Clarification 
Timothy M. Holly, Esquire, Kathleen Furey McDonough, Esquire, Potter Anderson 
& Corroon, 1313 North Market Street, P.O. Box 951, Wilmington, Delaware, 19899. 
Attorneys for Appellant. 
William E. Molchen, II, Esquire, Legal Services Corporation of Delaware, 100 West 
10th Street, Suite 203, Wilmington, Delaware, 19801. Attorney for Appellee, Timothy 
J. Downes.
Mary Page Bailey, Esquire, Carvel State Office Building, 820 N. French Street, 6th, 
Floor, Wilmington, Delaware, 19801. Deputy Attoorney General for the UIAB. 
SILVERMAN, J. 

This is an appeal by the DuPont Company from the Unemployment 
Insurance Appeal Board’s decision reversing an appeals referee’s denial of benefits 
to Timothy J. Downes. The Board decided that, although Claimant used profanity to 
disparage his supervisor and otherwise was disrespectful, he was not insubordinate. 
Furthermore, the Board concluded that despite DuPont’s written policy prohibiting 
insubordination, Claimant did not receive a warning before being fired. The issues 
on appeal are whether the Board’s decision is legally correct and based on substantial 
evidence. As discussed below, the court cannot decide this case because the basis for 
the decision on appeal is unclear. 

I. 

Claimant was employed by DuPont as a pantry service worker from 
December 17, 1999 until December 6, 2002. Before beginning work at DuPont, 
Claimant signed a statement acknowledging that he understood the company’s "Acts 
of Serious Misconduct Policy." Among other things, the policy explains that 
"[e]mployees are expected to treat each other with respect" and that employees are 
responsible for their "personal comments, actions, or gestures toward other employees 
which could cause an adverse reaction "1 It warns that i mproper conduct "can 
lead to disciplinary action as serious as immediate discharge."2 The policy defines 
acts of serious misconduct. These include insubordination, threatening to do bodily 
harm to fellow employees and engaging in activity that could provoke fighting.3 

The incident in question occurred on November 28, 2002. Claimant was 
working with his supervisor, Terry Mitchell, and two other employees, Ortis 
Alderman and Willie Thomas. Mitchell let another employee leave work early, and 
Claimant told Mitchell, "I guess now you’ll be the one stepping up. . .to show us who 
our true role model is." Mitchell replied that Claimant should watch out for his own 
job, and Claimant responded that Mitchell was not "shit at [his] position." Mitchell 
told Claimant there was no need to cuss, and that Claimant did not "know what [he 
was] up against." Claimant then made a reference to the dock, an outside area where 
DuPont receives deliveries and employees smoke. All of that is admitted. DuPont 
contends that Claimant said, provocatively, "We can take it to the dock." Claimant 
testified that he merely suggested to his supervisor, Mitchell, that the supervisor 
should go to the dock to cool off. In either event, Mitchell reported the incident to 
his supervisor, who sent Claimant home. On December 6, 2002, DuPont fired 
Claimant. 

Claimant applied for unemployment compensation on December 8, 2002. 
The claims deputy found Claimant ineligible for benefits, and Claimant appealed. On 
January 22, 2003, an appeals referee affirmed the denial of benefits. DuPont did not 
attend the hearing. 

The appeals referee heard evidence, much of which is outlined above. 
In addition, Claimant testified to telling Mitchell, "Maybe you need to go out to the 
dock." The appeals referee based her decision on 19 Del. C. § 3315(2),4 which 
explains when discharged employees are disqualified from receiving benefits, and the 
fact that Claimant’s behavior amounted to insubordination. The appeals referee did 
not mention DuPont’s employee’s misconduct policy. 

Claimant appealed to the Board, which held a hearing on March 12, 
2003. The Board considered the evidence previously presented to the appeals referee, 
and heard testimony from both parties. Two of DuPont’s witnesses testified that 
Claimant told Mitchell, "We can take it to the dock." The Board’s holding, in 
pertinent part, states: 

   The Board does not accept the testimony of the employer’s 
   witnesses and finds the [C]laimant’s testimony to be 
   credible. The Board concludes that the [C]laimant did not 
   threaten the supervisor. Also, the Board finds that the 
   [C]laimant’s comments to the supervisor did not constitute 
   willful or wanton misconduct even if stated in front of the 
   staff. The Board believes that there was a need for a final 
   warning prior to discharge to have the [C]laimant’s 
   remarks be seen as just cause for discharge.

Thus, on April 5, 2003, the Board reversed the appeals referee’s decision and found 
Claimant eligible for benefits. DuPont then filed this appeal. 

II. 

The standard of review for a decision of the Unemployment Insurance 
Appeal Board is whether the Board’s findings and conclusions are supported by 
substantial evidence and free from legal error.6 "Substantial evidence means such 
relevant evidence as a reasonable mind might accept as adequate to support a 
conclusion."7 The Board, not the reviewing court, shall weigh the credibility of 
witnesses and resolve conflicts in testimony.8 The Board should hear "all evidence 
which could conceivably throw light on the controversy "9 "Exclusion of 
relevant, material, and competent evidence is grounds for reversal if the refusal is 
prejudicial."10 If there is substantial evidence and no legal error, the Board’s decision 
will be affirmed.11 

III. 

An individual is disqualified for benefits when "the individual was 
discharged from the individual’s work for just cause in connection with the 
individual’s work "12 The term "just cause" refers to a "wilful or wanton act in 
violation of. . .the employee’s expected standard of conduct."13 Wilful or wanton 
conduct requires a showing that "one was conscious of his conduct or recklessly 
indifferent of its consequences. . .[but] [i]t need not necessarily connote bad motive. 
. .or malice."14 

In Hundley v. Riverside Hospital,15 an employee was terminated after she 
verbally assaulted her supervisor and failed to cooperate when a second supervisor 
attempted to calm the situation.16 The employee thereafter used profanity toward the 
guard escorting her from the building.17 Hundley held that wilful misconduct is when 
an employee uses obscenities with no justification.18 

Similarly, in Dozier v. Uncle Willie’s Deli, A Division of Peninsula Oil 
Co., Inc.,19 an employee was fired because she uttered an obscenity after a customer 
placed an order.20 The court reasoned that an unprovoked, isolated instance of 
profanity in conjunction with a disregard for standard procedure in the workplace is 
wilful misconduct.21 Because a customer’s ordering a salad is not justifiable 
provocation, the employee engaged in misconduct amounting to just cause for 
dismissal.22 The court further noted that the employee admitted using profanity.23 
Employers sometimes write policies detailing intolerable acts of 
misconduct, and they inform their employees about those policies. An "expected 
standard of conduct," like those outlined in company policies, is relevant to 
determining "just cause" for discharge.24 An employer’s policy can serve as a first 
and final warning to employees as to what the employer considers adequate grounds 
for discharge.25 In summary, as a matter of law, in the presence of a written policy, 
consistently enforced, an employee who is insubordinate may be discharged for wilful 
misconduct and denied benefits, even for a first offense. 

IV. 

After reading the Board’s decision carefully, the court is confused about 
the Board’s precise holding and reasoning. The Board states that Claimant’s 
testimony was credible and Claimant did not threaten his supervisor, nor did his 
conduct amount to wilful misconduct. That is enough to reject DuPont’s firing 
Claimant based on threatening behavior. The holding, however, does not state 
whether Claimant’s admitted conduct amounted to insubordination. The Board goes 
on to hold that a final warning was required before Claimant’s discharge could be for 
just cause. While the Board enjoys autonomy in fact-finding, the court is not 
completely satisfied that the Board gave full weight to the facts it found. The Board’s 
addressing a final warning makes no sense if Claimant did not sass his supervisor. 
If Claimant was not insubordinate or challenging, he could not be fired, with or 
without a warning. 

It appears that this case turns on whether Claimant was insubordinate 
when he admittedly mocked his supervisor with profanity in front of others, and when 
Claimant told his supervisor to go outside and "cool off." If the Board decides that 
Claimant was insubordinate, it must then consider DuPont’s policy and determine 
whether DuPont regularly enforces it. If DuPont enforces its policy against 
insubordination, Claimant’s discharge could be upheld without further warning. 
Conver sely, if the Board finds Claimant not to have been insubordinate, Claimant is 
entitled to benefits and the question of a "final warning" is beside the point. The 
court respects the Board’s finding as a matter of fact that Claimant did not threaten 
his supervisor. The Board, however, must address the alternative justification for 
Claimant’s discharge, insubordination. 

V. 

For the foregoing reasons, the April 5, 2003 decision of the 
Unemployment Insurance Appeal Board awarding unemployment benefits is 
REMANDED for clarification as called for here. Either side is entitled to request a 
new hearing.26 

IT IS SO ORDERED. 

Judge 
oc: Prothonotary (Civil Appeals Division)