IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AIDA L. ORONA, )
Claimant/Appellant, )
)
v. )
) C.A. No. 02A-05-004 CHT
LITTLE SISTERS OF THE POOR, )
Employer/Appellee, and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD. )
)
OPINION AND ORDER
On the Employee’s Appeal from the Decision
of the Unemployment Insurance Appeal Board
Submitted: October 16, 2002
Decided: December 9, 2002
Reopened: May 1, 2003
Argued: November 24, 2003
Decided: November 25, 2003
Aida L. Orona, pro se, 300 Westwind Road, Bear, DE 19701.
Jennifer Gimler Brady, Esquire, POTTER, ANDERSON & CORROON
LLP, 1313 North Market Street, Hercules Plaza, Sixth Floor,
P.O. Box 951, Wilmington, DE 19899-0951, Attorney for the
Defendant.
Michael N. Petkovich, Esquire, and Daria E. Neal, Esquire,
JACKSON LEWIS LLP, 1156 5th Street N.W., Suite 250, Washington,
D.C. 20005, Of Counsel.
Stephani J. Ballard, Esquire, Deputy Attorney General,
Department of Justice, Carvel State Office Building, 820 North
French Street, Wilmington, DE 19801.

TOLIVER, Judge

STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
Aida Orona was employed as a housekeeper by the Little
Sisters of the Poor ("LSOP") at that organization’s Jeanne
Jugan Residence, a long term care facility for the elderly.
She had been so employed since 1995. The instant controversy
arises out of the performance of her duties on December 10,
2001.

On that day, Ms. Orona entered the room of one of the
facility’s residents, William Clark, in order to clean it.
Mr. Clark departed the room to allow her to perform her
duties. However, before he left and because of his suspicions
that Ms. Orona had previously stolen small items of personalty
from his room, Mr. Clark intentionally left a "toothpaste
squeezer" out on the sink. His stated rationale for doing so
was to resolve his suspicions regarding Ms. Orona. When he
returned a few minutes later, the aforementioned item was
missing. Mr. Clark then confronted Ms. Orona, who by that
time was no longer in his room but was down the hall
performing other duties. She denied knowing what he was
talking about and told him she thought that he was drunk.
Ultimately, the human resources director, Mr. Andy
Rodriguez, was notified and discussed the incident with Ms.
Orona. Ms. Orona apparently admitted to Eileen Fox, LSOP’s
Supervisor for Housekeeping and to Mother Superior Edward
Marie that she had made the comments attributed to her by Mr.
Clark. Those comments were deemed to be in direct violation
of the facility rules as set forth in the employee handbook,
which specifically stated that any infraction could result in
discipline up to and including termination. Ms. Orona was
subsequently discharged on December 17, 2001 because of the
incident with Mr. Clark. 

A report of the incident was submitted to the Delaware
Department of Health and Social Services ("DHSS") on December
12, 2001, as required by law. A DHSS representative
conducted an investigation of the incident and determined that
sufficient evidence had been developed to warrant further
action. The matter was then referred to the Medicaid Fraud
Control Unit within the Attorney General’s office.3
Within one week of her termination, Ms. Orona filed a
petition seeking unemployment benefits. The claim was denied
by the claims deputy pursuant to 19 Del. C. § 3315, because it
was determined that Ms. Orona had been discharged for just
cause.4 Ms. Orona appealed the decision and a hearing
occurred on February 19, 2002 before an appeals referee. The
appeals referee determined that Ms. Orona had been discharged

without just cause and was entitled to unemployment benefits.
LSOP appealed to the UIAB. 

(note: Ms. Orona was placed on the Adult Abuse Registry for a period of two
years starting January 3, 2002 as a result of the DHSS investigation. She
claims that this registration has severely impeded her ability to gain future
employment given her limited skills and language difficulties. However, the
decision to do so was not a part of the decision rendered by the UIAB and is
therefore not within the scope of Ms. Orona’s appeal to this Court.)

A hearing was held before the UIAB on April 17, 2002.
The UIAB reversed the referee’s decision, finding that Ms.
Orona had in fact been discharged from her employment with
LSOP for just cause. As a result, she was, as the claims
deputy had initially determined, disqualified from the receipt
of unemployment compensation benefits. Ms. Orona then
appealed that decision to the Superior Court on July 15, 2002.

Ms. Orona’s appeal before this Court is based on the
contention that her termination was not for "just cause"
because it was based on the "here say" [sic] testimony of a 94
year-old man, which she deemed to be highly unreliable. She
goes on to argue that the UIAB committed legal error by
proceeding with the hearing on April 17, 2002 in her absence
after it had denied a continuance that she had timely
requested. LSOP responded on August 7, 2002, contending that
the UIAB’s decision was supported by substantial evidence and
that Ms. Orona was terminated for just cause.5 In addition,
the UIAB argued that Ms. Orona had previously admitted to
calling the resident crazy and stating that he drank too much.
Therefore, by her own admission, she had violated the LSOP
policies against abuse of residents. 

In an order dated December 9, 2002, this Court remanded
Ms. Orona’s case back to the UIAB for a supplementation of the
record. Since the UIAB denied Ms. Orona’s request for a
continuance, the reasons for that denial should have been made
a part of the record so that this Court could properly assess
whether the agency had properly exercised its discretion. In
response to the remand, the UIAB has provided the Court with
an explanation for its actions in that regard.6 That which
follows is the Court’s response to the issue so presented on
remand and ultimate issues on appeal.

DISCUSSION

In reviewing a decision of the Unemployment Insurance
Appeal Board, this Court is bound by its findings if supported
by substantial evidence and absent abuse of discretion or
error of law.7 "Substantial evidence is defined as such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."8 It "is more than a
scintilla and less than a preponderance" of the evidence.9
The Court’s role is merely to determine if the evidence is
legally adequate to support the agency’s factual findings.10
The first issue to be addressed by this Court is Ms.
Orona’s contention that the UIAB erred as a matter of law by
conducting the April 17, 2002 hearing in her absence after
having denied her request for a continuance. A resolution of
this issue obviously impacts whether the decision of the UIAB
was supported by substantial evidence in the record and/or
constituted an abuse of discretion. In this regard, UIAB Rule
B states in relevant part:
   All parties are required to be present for
   a hearing at the scheduled time. Any party
   who is not present within 10 minutes after
   the scheduled time for hearing shall be
   deemed to waive his right to participate in
   said hearing and the hearing shall commence
   without the presence of said party.11

There is no requirement that all parties be present for the
hearing to commence. The Board is in fact required to start
the hearing despite the absence of one or more of the parties
after waiting ten minutes. 

On April 12, 2002, Ms. Orona requested a postponement of
the April 17th hearing. The reason given was that she had
permanently moved from Delaware to Florida and did not have
sufficient time or financial resources to return to Delaware
for the April 17th hearing. Ms. Orona’s request was sent by
facsimile transmission to Helen McClure, a secretary employed
by the UIAB, on April 12, 2002.12

On April 17, when Ms. Orona failed to appear within ten
minutes of the time scheduled for her hearing, Stephani J.
Ballard, Esquire, counsel for the UIAB noted that Ms. Orona
had requested a postponement due to her inability to return to
Delaware in time for the hearing and that the request had been
denied. Again, no reason for the denial was given nor is
there any indication that any rationale was ever later
provided to Ms. Orona. Ms. Ballard then indicated that the
hearing would proceed in Ms. Orona’s absence.

A discretionary ruling by a trial court or administrative
body on a motion for a continuance will not be set aside
unless that decision is unreasonable or capricious.13 In this
case, the UIAB denied Ms. Orona’s request to postpone the
hearing without providing any basis for its decision. 

In its response to the order of remand, the UIAB cites
Board Rule A,14 which states in pertinent part:
   . . . Any other request made after six
   days prior to the date of hearing shall be
   made directly to the Board Chairman. In
   such case, a postponement for rescheduling
   shall be granted only for emergency
   circumstances such as death in the family
   or serious illness.

Mr. Roy Newlin, on behalf of the Board, indicates that he
denied Ms. Orona’s request for postponement because Ms.
Orona’s request met the "emergency circumstances" criteria of
Rule A.15 Furthermore, since the Board holds hearings every
Wednesday with a 14-day notice, a postponement still would not
have solved Ms. Orona’s problem and would have simply caused
undue delay to a resolution of the case.

Given the explanation, the Court finds that the Board’s
decision to deny Ms. Orona’s request did not constitute an
abuse of discretion. There has been no evidence presented
that Ms. Orona moved to Florida unexpectedly. To the
contrary, the notice for the hearing was sent on April 2, 2002
and Ms. Orona did not request a postponement until April 12,
2002, which was 10 days later. It therefore appears that the
decision was appropriate under the circumstances.

Having resolved this issue, the Court will turn to the
issues originally presented on appeal by Ms. Orona.
Specifically, left to be determined is whether the UIAB’s
decision that Ms. Orona was discharged for just cause, and
therefore not entitled to unemployment benefits, was supported
by the substantial evidence and did not constitute an abuse of
discretion or error of law.

Title 19 Del. C. § 3315(2) provides, in pertinent part,
that "[a]n individual shall be disqualified for benefits. . .
. if the individual was discharged from the individual’s work
for just cause. . ." An employer has the burden of proving
"just cause" by a preponderance of the evidence before the
employee may be disqualified from benefits.17 As noted in
Tuttle v. Mellon Bank of Delaware, "just cause" for discharge
is defined as a wilful or wanton act in violation of either
the employer’s interest, the employee’s duties, or the
employee’s expected standard of conduct.18 "Wanton" conduct
is that which is heedless, malicious, or reckless, but not
done with actual intent to cause harm.19 On the other hand,
"wilful" conduct is that which implies actual, specific, or
evil intent.20 Furthermore, a single incident of misconduct
may justify termination after a company policy against that
conduct is clearly communicated to an employee.

Since the record reflects that Ms. Orona was aware of
LSOP’s policies regarding abuse of residents, the Clark
incident would be sufficient grounds for termination
notwithstanding her alleged inability to understand the
English language. First, she acknowledged receipt of the
policies in question. Second, she attended a seminar
explaining the same policies. Lastly, there is no indication
that she ever complained that she did not know of or
understand LSOP’s policies against patient abuse.

Moreover, the Board found the testimony of Mr. Clark to
be credible. The Board’s decision that termination was
justified was also based upon Ms. Orona’s admission to LSOP
administrators and the investigation report submitted by DHSS,
which confirmed the abusive conduct of Mr. Clark. Nor did the
Board, as noted earlier, abuse its discretion by conducting
the hearing in Ms. Orona’s absence without hearing her version
of the facts. As the Delaware Supreme Court has decreed,
"[i]t is within the province of the Board, not this Court, to
weigh the credibility of witnesses and to resolve conflicts in
testimony."22 That is exactly what the Board did in this case.
Ms. Orona’s behavior, as determined by the Board, clearly
rises to the level of the kind of conduct which is prohibited
in the LSOP Employee Handbook.

Given the foregoing, the Court finds that there was also
substantial evidence in the record to support the Board’s
decision that Ms. Orona’s discharge was for "just cause."
That decision is also free from legal error and does not
constitute an abuse of discretion.

CONCLUSION

Based upon the foregoing, the decision of the
Unemployment Insurance Appeal Board must be, and hereby is,
affirmed.

IT IS SO ORDERED.
Toliver, Judge