SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 
RICHARD F. STOKES

Re: Ian Moore v. Utility Lines Construction 

Dear Counsel: 

This case comes before the Court on appeal from the Unemployment Insurance Appeal 
Board (the "Board"), which reversed an appeal Referee’s decision to grant Ian Moore 
("Claimant") unemployment compensation benefits. The Board’s decision is reversed and the 
case is remanded. 

AGENCY PROCEEDINGS 

On April 25, 2007, Claimant applied for unemployment benefits. On May 16, 2007, the 
Claims Deputy rejected Claimant’s unemployment benefits application under Title 19 of the 
Delaware Code, Section 3314(2). Subsequently, on May 22, 2007, Claimant appealed to the 
Appeals Referee. On June 11, 2007, the Appeals Referee determined that Claimant was entitled 
to unemployment benefits because the employer failed to prove just cause for terminating 
Claimant by having an uneven disciplinary policy. Employer appealed the Referee’s decision to 
the Board. On August 1, 2007, the Board reversed the decision of the Appeals Referee. This is a 
pro se appeal by Claimant. 

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 purpose of an appeal is to 
determine whether the agency’s decision is supported by substantial evidence and free of legal 
error.1 Substantial evidence means such relevant evidence as a reasonable mind might accept as 
adequate to support a conclusion.2 Substantial evidence is "more than a scintilla, but less than a 
preponderance."3 The reviewing court does not weigh the evidence, determine questions of 
credibility, or make its own factual findings.4 

FACTS 

Utility Lines Construction Service ("Employer") employed Claimant as a groundsman 
installing underground and overhead electric wire from November 16, 2005 until April 24, 2007. 

On February 26, 2007, Claimant was absent and did not notify the office about his 
absence until 10:00a.m. The following day Claimant received a verbal warning. A Performance 
Notice, number 261786, allegedly reflected this event. Although referenced in the records, the 
document was not included in the appendix. Claimant said he did not receive it until these 
proceedings began. 

On April 2, 2007, Claimant notified Jimmy Reed, his superior, that he desired to use a 
vacation day to attend a baseball game in Philadelphia. Although the time off was approved, 
Reed did not make a record of it. Consequently, Claimant lost pay for that day. 

During this same time frame, Claimant’s car was stuck by another worker’s car in the 
Employer’s parking lot. The Employer promised to pay for repairs, but has not followed through. 

On April 17, 2007, Claimant was absent and did not call the office. On April 20, he 
received and acknowledged a written warning. This was documented in another Performance 
Notice, number 200308. It stated that the next violation would lead to a termination. He was 
suspended on April 23, 2007 for the April 17, 2008 infraction. On April 24, 2007, Claimant was 
the first person to arrive at work at 7:07 a.m. This was documented in another Performance 
Notice, number 261785. The usual reporting time is 7:00 a.m. and he was terminated as a result. 
However, similar action was not taken against other late employees, including another crew 
member and a secretary who showed up after him. Claimant testified that he parked his car at the 
job site at 7:02 a.m. and laced his safety boots which was necessary for work and then left his car 
at 7:07 a.m. 

Before termination in September 2006, Claimant needed hernia surgery, and the 
Employer approved medical leave. However, when Claimant was billed, the insurance company 
denied coverage. The carrier claimed his Employer advised Claimant was not employed as of the 
day before the operation. However, with considerable assistance from the Delaware Insurance 
Commissioner’s Office, the insurance was reinstated, after a prolonged effort which required 
Claimant to pay for the premium to reinstate the policy as a new employee. Because of the 
Insurance Commissioner’s involvement and other events, Claimant believes that Employer was 
prejudiced against him. 

DISCUSSION 

Did the Employer have just cause to terminate Claimant? An individual discharged for 
just cause is disqualified for benefits. The pertinent law provides: 

An individual shall be disqualified for benefits: 

(2)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 until the 
individual has been employed in each of 4 subsequent weeks (whether or not consecutive) 
and has earned wages in covered employment equal to not less than 4 times the weekly 
benefit amount (emphasis added). 
19 Del. C. 3315(2). 

Just cause for termination is defined as, "a wilful or wanton act in violation of either the 
employer’s interest, of the employee’s duties, or of the employee’s expected standard of 
conduct."5 One acts wilfully when he acts voluntarily, intentionally, and deliberately.6 One must 
either be conscious of his conduct or recklessly indifferent of its consequences. The act "need 
not necessarily connote bad motive, ill design, or malice."7 An employer has the burden of proof 
to establish just cause.8 

In Vann v. Town of Cheswold,9 the Delaware Supreme Court decided that an employee’s 
right to unemployment compensation is a "property-like right." Employers contribute to the 
unemployment compensation program for workers and employees have a right to demand 
compensation when unemployed. Delaware’s public policy protects workers who lose jobs 
through no fault of their own. When this right is exposed to forfeiture, the Court requires "an 
especially good reason and demand heightened scrutiny of the proffered reason."(Emphasis 
added).10 In doing so, the Delaware Supreme Court differentiated just cause to justify termination 
of employment contracts from just cause in unemployment compensation cases. In the latter 
situation, higher scrutiny of the proffered reasons is required. Other jurisdictions recognize this 
distinction, as well. 11 Even where less scrutiny is required in the contract context, Vann 
emphasized that "the reason for termination must be job-related and cannot simply be a trumped 
up pre-textual excuse for termination."12 

Along this vein, an employer has the burden to prove just cause and the employee’s 
misconduct. An employer "has to prove that the alleged misconduct was in fact the actual reason 
for the employee’s discharge."13 A Pennsylvania state court reversed a Board’s decision denying 
unemployment benefits because it found that "the actual reason for Employer’s discharge of 
claimant was not her violations of the rule on vacation time, but rather, Employer’s desire to 
eliminate an unneeded secretarial position on its staff."14 

Claimant argues15 that he was discharged without "just cause" because he was targeted 
for unfair disciplinary treatment resulting from his insurance and other claims. He argues the 
seven minute tardiness on April 23, 2007, was a mere pretext to eliminate a disagreeable worker. 
Claimant points to the discrepancy with the written document allegedly reflecting the February 
warning. It appears to be out of sequence as shown in this passage: 

IAN MOORE: I don’t see that this is going to be put in my file. Another question, the 20th 
the serial number is 200308, the 23rd or the yes when I was terminated 261785 is the next 
serial number. For this verbal warning it’s 261786. One later than two months previous 
write up how is that concurrent? That was written up, I believe, I was terminated. . .16 

On the other hand, Employer argues that the Board’s decision was supported by 
substantial evidence, and the decision was free from legal error. However, the series of events 
testified to by Claimant, such as apparent uneven discipline, insurance, car, and vacation day 
disputes, are essentially admitted. The out of order number of the document allegedly 
confirming the February warning is puzzling. If in correct sequence, it would have been done 
after the April 24th event. The Board felt, legally, that it had to accept the proffered reason that 
Claimant was late and had been warned. No further scrutiny was given because Claimant was not 
a member of a protected class, based on gender, sex, age, or religion. However, the legal standard 
is not so narrowly confined. In light of Vann, the Board failed to give the heightened scrutiny to 
the proffered reasons and this is legal error. 

The Employer cites Ward v. Phoenix Steel17 to support the argument that disparate 
treatment is irrelevant. However, Ward does not advance this position. The claimant in Ward 
was involved in a fight at the job site with a coworker. The misconduct is obvious. Nonetheless, 
the Ward court was "disturbed" that different disciplinary actions were taken against the 
participants without adequate explanation on the record. The Court said ". . . In addition, the 
Board failed to discuss the comparatively lenient sanction imposed on Brooks (a two week and 
one day suspension). Though the disparate treatment may have been justified by the fact that 
Brooks, unlike claimant, did not wield steel weapons, a more complete and fair administrative 
record should include this or similar distinctions." Id. (Emphasis added). 

Here, the Board also committed a factual error when it said the record failed to show that 
others came late and were not disciplined.18 Another crew member came after Claimant (as well 
as a secretary). As the crew’s performance depended upon all being present, the Employer’s 
work cannot be seen to have been adversely affected in any manner. 

CONCLUSION 

Considering the foregoing, the Board’s decision must be reversed and remanded for 
further proceedings consistent with this opinion. In making the decision, the Board is required to 
evaluate the proffered reasons for discharge - tardiness - against the background of other events 
which is part of the heightened scrutiny required before a worker’s right to compensation can be 
forfeited. 

IT IS SO ORDERED. 

Very truly yours, 

Richard F. Stokes 
RFS/cv