IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 


TYKENE JOHNSON, 
Appellant,  
v.
TMSI and the UNEMPLOYMENT ) 
INSURANCE APPEAL BOARD )  
Appellees. ) 


Submitted: April 22, 2008 
Decided: July 30, 2008 

MEMORANDUM OPINION 

Appeal from Unemployment Insurance Appeal Board. AFFIRMED. 

CARPENTER, J. 

Introduction 

Before this Court is Tykene Johnson’s ("Appellant") appeal from the 
Department of Labor, Division of Unemployment Insurance Appeal Board’s 
("Board") decision, where it found that Mr. Johnson was ineligible for benefits based 
on fraud for failing to report his employment with Tristar Management Services, Inc., 
("TMSI" or "Appellee") during a time he was previously receiving benefits. Upon 
review of the record in this matter, the Court finds the Board’s decision is supported 
by substantial evidence and is therefore AFFIRMED. 

Facts 

Appellantfiled an unemployment claim effective January 1, 2006, and received 
benefit checks from January 7, 2006 through July 1, 2006 after which his claim was 
exhausted. While receiving benefits, Appellant obtained employment through a 
temporary employment service, Westaff, from March 2, 2006 through June 5, 2006, 
and worked at TMSI. On June 5, 2006 he was hired as a full-time employee of 
TMSI. Appellant submitted pay authorizations for the weeks ending June 10 through 
July 1 of 2006, which was during his full-time employment with TMSI, and failed to 
report that he was earning and/or receiving wages. Appellant maintains that he was 
unaware he needed to report wages earned during an initial probationary period of 
employment.1 TheAppellant’semployment with TMSI was subsequently terminated, 
and he again filed for unemployment benefits. The Division of Unemployment 
Insurance determined that Appellant had knowingly failed to report his prior wages 
and employment in order to receive benefits, and as a result Appellant was 
disqualified from receipt of benefits on the basis of fraud for the period of one year. 
As such, his present request for benefits was denied. 

Appellant subsequently appealed this decision to the Appeals Referee, who 
affirmed the decision of the Division of Unemployment Insurance. Appellant then 
appealed to the Board, which affirmed the Referee’s decision and the Appellant filed 
the instant appeal. Neither TMSI nor the Department of Labor filed briefs in this 
matter, therefore, the following represents the Court’s decision on the matter based 
on the papers currently before it. 

Standard of Review 

This Court’s role in reviewing an appeal from the Board is limited to an 
evaluation of the record, in the light most favorable to the prevailing party, to 
determine if it includes substantial evidence that a reasonable mind accepts as 
adequate support for the conclusion and is free from legal error.2 Therefore, the Court 
does not address issues of credibility or independently weigh the evidence presented 
to the Board.3 If the record supports the Board’s findings, the Court must accept 
those findings even though the Court might reach a different conclusion on the facts 
presented.4 

Discussion 

The question before the Court is whether the Board had substantial evidence 
to determine that Appellant knowingly made a false statement or failed to disclose a 
material fact to the Department in order to receive benefits to which he was not 
entitled, thus making him ineligible for benefits for one year. The Court finds that 
the answer to this question is yes, and the Board had substantial evidence to reach its 
conclusion. 

2General Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960)("The position of the 
Superior Court. . . on appeal is to determine only whether or not there was substantial evidence to 
support the findings of the Board. If there was, these findings must be affirmed."). 

3Michael A. Sinclair, Inc. v. Riley, 2004 WL 1731140, at *2 (Del. Super. July 30, 
2004)(citing Unemploy. Ins. Appeal Bd. v. Div. of Unemploy. Ins, 803 A.2d 931, 937 ( Del. 
2002)("Questions of credibility are exclusively within the province of the Board which heard the 
evidence. As an appellate court, it [is] not within the province of the Superior Court to weigh the 
evidence, determine questions of credibility or make its own factual findings.")). 

Ordinarily in unemployment benefits cases, at the initial hearing an Appellee 
must prove its case by a "preponderance of the evidence." However, because the 
present matter is based on fraud, the burden of proof rises to a "clear and convincing" 
standard, which is more stringent than a mere "more likely than not" burden, yet less 
than "beyond a reasonable doubt."5

 In its decision, the Board analyzed the relevant statute for the disqualification 
of unemployment benefits, which states, 

An individual shall be disqualified for benefits if the 
Department determined such individual has made a false 
statement or representation knowing it to be false or 
knowingly has failed to disclose a material fact to obtain 
benefits to which the individual was not lawfully entitled, 
and such disqualification shall be for a period of 1 year 
beginning with the date on which the first false statement, 
false representation or failure to disclose a material fact 
occurred. A disqualification issued pursuant to this 
subsection shall be considered a disqualification due to 
fraud.6 

The Court agrees with the Board’s finding that Appellee had met its burden. 
First, the Board heard testimony that Appellant was employed by Appellee in June 
of 2006. Appellant stated, 

The first month I worked at TMSI I didn’t know I had to 
report my earnings. The job was letting people go within 
30 days in their employment. . . I didn’t know if TMSI was 
going to let me go or not within my first 30 days. They 
didn’t communicate with new hires. That’s another reason 
why. . . I didn’t want to let my benefits go. . . I was not 
trying to fraud the system.7 

Second, Appellant attempted to remedy the above admission by claiming he 
was unaware he needed to report wages earned during his initial employment, while 
he was employed on a probationary basis. However, Appellant had received the 
unemployment insurance handbook explaining that all earned wages must be 
reported, and had on previous occasions received unemployment benefits.8 
Therefore, he was not a novice to the procedures or unaware of where to turn if he 
had questions about his obligations. Appellant knowingly entered "zero" on the 
authorization form which asks for earnings information,9 which clearly was a false 
and misleading statement. Indeed, the Board noted in its decision that Appellant was 
aware he was required to report his wages to the Board, and such "awareness" was 
sufficient to satisfy the Board that his omissions were made knowingly.10 

Considering all of these factors, The Court finds the Board’s decision to have 
adequate support in the record. There was substantial evidence to support its 
determination that by failing to report to the Department that he was employed and 
receiving wages, Appellant intended that the Department "remain ignorant of his 
employment," thus satisfying the scienter requirement of 19 Del. C. § 3314(6)11 
Therefore, after examining the record below, the Court finds that there was 
substantial evidence before the Board to show that Appellant knowingly failed to 
disclose a material fact to the Department in order to receive benefits, and the Board’s 
decision is affirmed. 

Conclusion 
For the foregoing reasons, the decision of the Board is AFFIRMED. 
IT IS SO ORDERED. 
__________________________ 
Judge William C. Carpenter, Jr.