IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY WILLIAM A. FREEMAN, :: Claimant-Below, : Appellant, :: v. :: BURRIS FOODS and UIAB, :: Appellees. : Submitted: January 23, 2007 Decided: March 19, 2007 AFFIRMED OPINION AND ORDER Claimant-Below/Appellant (“Appellant”), William Freeman, appeals the March 2006 decision of the Unemployment Insurance Appeal Board (“Board”) finding he was discharged for just cause in connection with his work for Employer- Below/Appellee (“Appellee”), SIDEBARS Foods. The Appellant, appearing pro se, argues that the Board’s decision is not supported by substantial evidence. However, for the following reasons the decision is AFFIRMED. FACTS Prior to the Appellant’s discharge, he had been employed by the Appellee as a warehouseman for 10 years. In the afternoon of August 25, 2005, cases stacked on a pallet fell over. This seemingly innocuous occurrence served as the catalyst to two physical altercations between the Appellant and his co-worker, Billy Griffin; altercations that ultimately resulted in the Appellant’s discharge. At the Appellee’s Harrington storage facility, when a pallet falls apart, the loader is called, and whoever responds to the scene helps put the pallet back together. When this pallet fell apart, Bennie Harrison asked Mr. Griffin who had stacked it. Mr. Griffin replied that the Appellant had assembled the pallet. Mr. Harrison went to find the Appellant, while Mr. Griffin began cleaning up the pallet. When asked by Mr. Harrison if he had stacked the pallet, the Appellant, who was on a break, denied doing so. When the Appellant returned to work, he initiated an argument with Mr. Griffin over who had stacked the pallet. With the two arguing at close range, Mr. Griffin either pushed or hit the Appellant. The Appellant responded by grabbing a metal pipe and threatening Mr. Griffin. Mr. Harrison stepped in, grabbing the metal pipe from the Appellant. Approximately 30 minutes after work, the Appellant and Mr. Griffin crossed paths on Gun and Rod Club Road, east of Harrington. After the pair got out of their vehicles, another altercation ensued. The State Police were called, and a report was made. On August 26, 2005, both the Appellant and Mr. Griffin were terminated following an internal investigation. Mr. Griffin was later reinstated, but the Appellant was not. PROCEDURAL HISTORY On August 28, 2005, the Appellant filed a claim for unemployment benefits. The Appellee maintained that the Appellant’s termination was for just cause, so the claim was referred to a Claims Deputy. Following review of the matter, the Claims Deputy found that the Appellee had not met its burden of proving just cause, holding that the Appellant was entitled to unemployment insurance benefits. The Appellee then timely filed a request for reconsideration and a notice of appeal of the Claims Deputy’s decision. An Appeals Referee (“Referee”) heard the appeal on October 31, 2005, and determined that the Appellee had presented evidence sufficient to demonstrate the existence of just cause to discharge the Appellant. Specifically, the Referee found that the Appellant engaged in willful or wanton misconduct that violated the Appellee’s interest in a safe work environment and the standard of conduct expected to be followed by all employees. This misconduct included: picking up the pipe during the altercation at work; threatening Mr. Griffin by stating “I know where you live;” and appearing at Mr. Griffin’s home to have another altercation. The Appellant then timely filed a notice of appeal of the Referee’s decision. On March 1, 2006, the Board heard the appeal. While the Board took issue with some of the factual findings of the Referee, (specifically that the Appellant knew where Mr. Griffin lived, and went to Mr. Griffin’s house), the Board concluded that enough evidence existed for it to hold that the Referee had correctly determined that the Appellee proved that it had just cause to discharge the Appellant. The Board found that an altercation occurred between the Appellant and Mr. Griffin at work; that during this altercation the Appellant brandished a pipe; and that after work this altercation was continued, when the two met up outside of Harrington. The Board did not believe that the Appellant knew where Mr. Griffin lived, because the State Police report of the incident indicated the incident occurred outside of Harrington, not at Mr. Griffin’s home in Frederica. The Board stated that where an employee’s off-site misconduct is connected to job performance, such off-site activities can constitute just cause. Thus, based on the altercations that occurred at work and after work, the Board held that the Appellant had violated a known policy of the Appellee’s, and that the violation was just cause for the Appellant’s discharge. The Appellant then timely filed an appeal of the Board’s decision to this Court for review. STANDARD OF REVIEW On appeal, this Court reviews a decision of the Board to determine whether the Board’s decision was supported by substantial evidence and free from legal error.1 Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”2 In addition, substantial evidence is “more than a scintilla but less than a preponderance.”3 On appeal, this Court is limited to consideration of the record presented to the Board.4 When the Board adopts the factual findings of the Referee, this Court also reviews the findings of fact and conclusions of law of the Referee.5 However, this Court does not have the “authority to weigh evidence, determine the credibility of witnesses or make independent factual findings.”6 If the Board’s decision is supported by substantial evidence, this Court “must affirm the ruling unless it identifies an abuse of discretion or a clear error of law.”7 Questions of law are reviewed de novo.8 DISCUSSION According to 19 Del. C. § 3314(2), “An individual shall be disqualified for benefits:... For the week in which the individual was discharged from the individual’s work for just cause in connection with the individual’s work and for each week thereafter. . . .” Delaware courts have defined just cause 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.”9 Willful conduct implies actual, specific or evil intent.10 Wanton conduct is that which is heedless, malicious or reckless, but is not done with actual intent to cause harm.11 Willful or wanton conduct provides the basis for a just cause discharge, if a showing is made “that the employee was conscious of the employee’s conduct and recklessly indifferent to its consequences.”12 This conduct can justify dismissal without warning if the conduct is sufficiently egregious.13 Discharge for failure to comply with an employer’s policies can constitute just cause if it is shown that the policy forming the basis for the discharge actually existed, that the employee knew about the policy, and that the employee knew a violation of the policy may be cause for discharge.14 When a violation of a company policy is at issue, the employer need not give multiple warnings before choosing to discharge the employee.15 As long as the company policy is clearly communicated to the employee, the employer has given adequate notice to justify the employee’s discharge after a single violation of that policy.16 Such communication can be found where there is evidence of a written policy, such as in an employee handbook.17 Additionally, just cause sufficient to disqualify an employee for benefits can be based on conduct which takes place off the job site and after working hours “if there is sufficient nexus between the off-site misconduct and job performance.”18 In any event, the burden is always on the employer to prove just cause by a preponderance of the evidence.19 The Appellant argues in his notice of appeal that the Board erred, because its decision was not supported by substantial evidence since the evidence relied upon was inadmissible and unreliable; because the Appellant was acting in self-defense; and because the Board improperly relied on the off-site incident as a basis for its decision. In his opening brief, the Appellant alleges that the Board failed to examine the case closely, because he was not in fact charged with Assault Third Degree, and because the second altercation would not have occurred if Mr. Griffin had not stopped his vehicle. Additionally, the Appellant contends the Board erred because Mr. Griffin was treated more favorably as he was suspended, not terminated. The Appellee argues that there is substantial evidence to support the Board’s conclusion that the Appellee proved it had just cause to discharge the Appellant based on his violation of the Appellee’s standard of conduct. The Board found that the Appellee has a policy against “fighting on company grounds; assault; or threat of assault of another associate, customer or vendor.” The policy states that these actions “may be cause for suspension or dismissal at the discretion of management.” The Board stated that this policy is contained within the employee handbook, a copy of which the Appellant signed for on September 9, 2003. Both the Referee and the Board concluded that the evidence revealed that the Appellant and Mr. Griffin engaged in an altercation at work that turned physical when Mr. Griffin pushed or struck the Appellant and the Appellant responded by brandishing a metal pipe. These actions alone violated the Appellee’s aforementioned policy, yet once the work day ended the dispute between the Appellant and Mr. Griffin continued. The Board and the Referee also determined that the two met up after work and another physical altercation ensued. As stated above, off-site misconduct can give rise to just cause to discharge an employee if the misconduct is connected to job performance. Therefore, it is proper for the Board to consider the off-site events in assessing just cause for discharge. The Board and the Referee found that the off-site conduct also violated the Appellee’s aforementioned policy. The Referee found the violation, which was a continuation of the on-site altercation, connected to the Appellant’s job performance, because it violated the Appellee’s interest in maintaining a safe, violence-free workplace. On this record, the Court finds that both the Board and Referee had substantial evidence, which was reliable and admissible, on which to base its conclusion that the Appellant violated a company policy, both on and off-site. As the Board stated, the Appellant had acknowledged receipt of a copy of the employee handbook, so he was actually or constructively aware of the policy and that he could be discharged for violating it.20 Hence, there is substantial evidence to support the decision of the Board and Referee that the Appellee met its burden in proving just cause to discharge the Appellant, and that decision disqualified the Appellant from receiving unemployment insurance benefits. Before concluding, the Court addresses two additional issues raised by the Appellant. First, while the Court acknowledges that the Appellant was treated more harshly by the Appellee than was Mr. Griffin, “[t]he test for just cause for termination in this context does not include any consideration of the discipline other employees received.”21 Second, the issue of self-defense is not mentioned by either the Board or the Referee. Indeed, it appears not to have been raised by the Appellant below. “Under the waiver rule, issues or arguments that are not raised to an administrative agency cannot be considered by a reviewing court.”22 Accordingly, the decision of the Board is AFFIRMED. SO ORDERED.