SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 
RICHARD F. STOKES 
JUDGE P.O. BOX 746 
COURTHOU SE 
GEORGETO WN, DE 19947 
Richard K. Goll, Esquire 
Goldfein & Hosmer 
22 Delaware Avenue, Suite 1110 
David C. Hutt, Esquire
Wilson, Halbrook & Bayard, P.A.
107 West Market Street
P.O. Box 2206P.O. Box 690 
Wilmington, DE 19801 Georgetown, DE 19947 
Date Submitted: May 30, 2003 
Dated Decided: July 8, 2003 
RE: George P. Hawthorne v. Linz Busing 
C.A. No. 03A-02-004-RFS 

Dear Counsel: 

This is my decision on George P. Hawthorne’s ("Hawthorne") appeal of the 
Unemployment Insurance Appeal Board’s ("Board") decision denying unemployment benefits to 
Employee. The Board’s decision is affirmed for the following reasons. 

STATEMENT OF FACTS 

Hawthorne was employed as a school bus driver for Linz Busing ("Linz") from February 
2000 until October 31, 2002. The owners of Linz, Mark and Lana Linz ("Owners"), testified that 
Hawt horne did a fine job in the morning but hurried too much in the aft erno on. Consequently, 
the Owners warned Hawthorne on a number of occasions to drive slower when taking children 
home. 

In this regard, Hawthorne admitted that he had been warned several times to slow down.1 
On October 31, 2002, Hawthorne was driving a bus with twenty-four children on board when a 
motor vehicle collision took place. Hawthorne was traveling on Road 380 and attempted to cross 
Route 113 when the impact occurred. Route 113 is a major divided highway with two lanes of 
traffic in each direction. 

Hawthorne testified that he stopped at the first stop sign and crossed lanes of traffic 
before stopping at the second stop sign located in the median. After crossing the other two lanes 
of oncoming traffic, the bus was struck in the front passenger side door on the shoulder of the 
road. Two children in the front of the bus testified that Hawthorne did not stop at the second 
stop sign. A child in the rear of the bus testified that Hawthorne rolled through the second stop 
sign. Hawthorne was cited by the police for failure to remain at the stop sign. Because of the 
accident, Linz terminated Hawthorne’s employment. 

On November 10, 2002, Hawthorne filed a claim for unemployment insurance benefits 
with the Delaware Department of Labor. The Claims Deputy denied benefits by decision dated 
November 22, 2002. Thereafter, Hawthorne appealed this determination. On December 24, 
2002, the Appeals Referee reversed the decision of the Claims Deputy and found that Hawthorne 
was entitled to unemployment benefits. Thereafter, Linz appealed that decision. By opinion 
dated February 7, 2003, the Board reversed the decision of the Appeals Referee finding that 
Hawthorne was ineligible for benefits because he was terminated for just cause. Hawthorne then 
filed this appeal. 

ISSUE PRESENTED 

Is the Board’s finding that Hawthorne was terminated for just cause supported by 
substantial evidence and free from legal error? 

DISCUSSION 

A. Standard of Review 
The Supreme Court and this Court repeatedly have emphasized the limited appellate 
review of the factual findings of an administrative agency. The function of the reviewing Court 
is to determine whether the agency’s decision is supported by substantial evidence, Johnson v. 
Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 
(Del. 1960), and to review questions of law de novo, In re Beattie, 180 A.2d 741, 744 (Del. 
Super. 1962). Substantial evidence means such relevant evidence as a reasonable mind might 
accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 
892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del. Super.), app. dism., 
515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, determine questions 
of credibility, or find facts. Johnson v. Chrysler Corp., 312 A.2d at 66. It merely determines if 
the evidence adequately supports the agency’s factual findings and is legally correct. 19 Del. C. 
§ 3323(a). 

B. Termination for Just Cause 

While the Unemployment Compensation Act protects the unemployed from financial 
hardship and is liberally construed, an individual nonetheless cannot receive benefits if 
terminated for just cause. 19 Del. C. § 3315(2); Boughton v. Div. Of Unemployment Ins. of the 
Dep’t of Labor, 300 A.2d 25, 26 (Del. Super. 1972). Just cause is defined as a wilful 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. Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1317 
(Del. 1986). The employee’s expected standard of conduct is relevant to determining just cause 
for discharge. Coleman v. Dep’t of Labor, 288 A.2d 285, 288 (Del. Super. 1972). The employer 
sets the standard for acceptable workplace performance. Pinghera v. Creative Home Solutions, 
Inc., Del. Super., C. A. No. 02A-06-007, Del. Pesco, J. (Nov. 14, 2002) (ORDER). However, 
"not every act which violated the employer’s interest or the employee’s duties or expected 
standard of behavior is necessarily a wilful or wanton act." Kingswood Cmty. Ctr. v. Chandler, 
Del. Super., C.A. No. 98A-05-016, Barron, J. (Jan.19, 1999) (ORDER). Moreover, the employer 
must prove just cause for termination by a preponderance of the evidence. Diamond State Port 
Auth. v. Morrow, Del. Super., C.A. No. 00A-09-003, Del Pesco, J. (June 13, 2001) (Mem. Op.). 
Wilful or wanton conduct exists where one is "conscious of his conduct or recklessly 
indifferent to its consequences." Coleman v. Dep’t of Labor, 288 A.2d at 288. Wanton "means 
heedless, malicious or reckless, but does not require actual intent to cause harm, while ‘wilful’ 
implies actual, specific or evil intent." Boughton, 300 A.2d at 26. Inadvertence in isolated 
instances or good faith errors in judgment do not equate to just cause for termination. Kingswood 
Cmty. Ctr., supra. 

Furthermore, "[i]t is undoubtedly true that where a conscientious employee is not able to 
perform to the satisfaction of his employer due to a limited physical or mental capac ity, 
inexperience, or lack of coordination, and is thereby discharged, he is nevertheless entitled to 
unemployment compensation. It is equally true that negligent behavior can rise to the level of 
misconduct. An instructive Pennsylvania Commonwealth Court case defines misconduct as inter 
alia ‘. . . negligence in such a degree as to show an intentional and substantial disregard of the 
employer’s interests, or of the employee’s duties and obligations to the employer.’" Glass v. 
Unemployment Ins. Appeal Bd., Del. Super., C.A. No. 93A-07-008, Ridgely, J. (Sep. 15, 1994) 
(ORDER) (citations omitted). In Delaware, negligence amounts to just cause when there have 
been "prior warnings about similar conduct, (the warnings requirement impliedly requires that 
other incidents of a similar nature have occurred);" and there is "no excuse, or justification, 
because of the type of work or the employee’s abilities." Kingswood and Glass supra. 

In this case, Hawthorne was terminated from his position as a school bus driver following 
a motor vehicle accident. Hawthorne was cited for failing to stop long enough at a well traveled 
intersection. As stated, Linz has the burden to establish that Hawthorne was terminated for just 
cause. Diamond State Port Auth.,supra. 

Here, substantial evidence shows that Hawthorne’s conduct was not only negligent but 
also occurred despite warnings and was not excusable as expected by the job or the employee’s 
ability. The record indicates that Hawthorne’s conduct on the day of accident was negligent in 
failing to stop at the stop sign long enough before proceeding across the intersection. Under 
previously cited authority, negligent conduct supports a termination for just cause when the 
employee was previously warned about the subject matter. 

In the present dispute, Hawthorne was warned many times to slow down while driving his 
afternoon route. Moreover, Hawthorne conceded that he had been warned to slow down in the 
past, but he claimed to drive with the flow of traffic. Although Hawthorne’s conduct was 
negligent, the Board found that the Owners repeatedly warned Hawthorne not to speed and to 
take his time to avoid obviously life threatening situations. 

Speeding on multiple occasions likewise reflects heedless or reckless disregard of the 
need to operate the bus in a controlled, unhurried and safe manner. Rolling through an 
intersection is a reoccurrence of behavior that Hawthorne had been previously warned against. 
There is a sufficient connection between speeding and rolling across oncoming traffic. Both 
reflect Hawthorne’s inclination as an impatient or hurried school bus driver who is acting against 
the employer’s interest. This behavior also presents a danger both to the public and the safety of 
the children on the bus. Under these circumstances, Hawthorne’s negligent conduct supports a 
termination for just cause in the face of prior warnings against driving the school bus in a hasty 
manner. 

CONCLUSION 

Considering the foregoing, the Board’s decision that Hawthorne was terminated for just 
cause is supported by substantial evidence, is free from legal error, and is affirmed. 

IT IS SO ORDERED. 

Very truly yours, 
Richard F. Stokes 
oc: Prothonotary 
cc: Unemployment Insurance Appeal Board