SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 

RE: Samuel L. Pitts, Sr. v. Ralph & Paul Adams 
C.A. No. 06A-01-003 
Date Submitted: January 25, 2007 

Dear Mr. Pitts and Counsel: 

Samuel Pitts (“Mr. Pitts” or “Appellant”) appeals the decision of the Unemployment 
Insurance Appeals Board (“the Board”) that denied Mr. Pitts’ request for unemployment insurance 
benefits. The Board denied Mr. Pitts’ request for benefits after concluding Mr. Pitts had been 
dismissed from his position of employment with Ralph & Paul Adams, Inc. (“Employer” or 
“Appellee”) for good cause. For the reasons set forth herein, the Board’s decision is remanded for 
further proceedings consistent with this opinion.

Procedural History 

By way of letter dated July 18, 2005, a Claims Deputy for the Department of Labor 
determined that Employer had met the burden for establishing that it had good cause to fire Mr. Pitts 
after Mr. Pitts tested positive for cocaine use. That decision was later reversed by an Appeals 
Referee after a hearing held on October 24, 2005. The Appeals Referee concluded that pivotal 
testimony upon which Employer relied concerning the chain of custody for the sample tested was 
hearsay and could not be considered by the Appeals Referee. The Board subsequently heard 
additional testimony on the matter at a hearing on December 7, 2005.1 By way of written decision 
mailed January 20, 2006, the Board reversed the Appeals Referee’s decision, concluded that 
Employer had established chain of custody and denied Mr. Pitts’ request for unemployment benefits. 
Mr. Pitts appeals that decision. 

Facts 

In June 2005, Mr. Pitts was employed by Appellant as a laborer, a position he had held with 
the company for eight years. On June 27, 2005, Mr. Pitts’ employment with Appellant was 
terminated when he tested positive for cocaine use. A positive drug screen is a violation of company 
policy and an employee who violates the union’s drug policy may be immediately discharged 
pursuant to the policy. 

The facts leading up to Mr. Pitts’ drug screen are as follows. On June 8, 2005, Mr. Pitts left 
a note for his supervisor, Kelly O’Neal, stating that he would be out of work due to a bout of 
sinusitis. By way of a separate note that same day, Mr. Pitts also requested a copy of a “first report
of injury” workman’s compensation report from Ms. O’Neal. Ms. O’Neal testified that she tried to 
reach Mr. Pitts by telephone to address the details of his request but was unable to do so. Mr. Pitts 
returned to work on June 13, 2005, and, at that time, Ms. O’Neal filed the first report of injury. At 
the hearings below, scant attention was paid to the date on which any injury occurred, but it appears 
that the Appellee’s position is that Mr. Pitts was injured somewhere around June 8th. Mr. Pitts 
testified the basis of the injury report was back strain he had been experiencing on and off since 2001 
or 2002. In any event, Mr. Pitts was ordered to undergo a drug screen pursuant to union policy, 
which requires “any employee who has an injury on the job to submit to a drug screen within 48 
hours of the injury.” The drug test was ordered on June 13th but not administered to Mr. Pitts until 
the following day, June 14, 2005. The result of the drug screen was positive and Mr. Pitts was 
discharged from his employment with Appellee as a consequence. 

Discussion 

A. Standard of Review 

When reviewing the decisions of the Board, this Court must determine whether the Board’s 
findings and conclusions of law are free from legal error and are supported by substantial evidence 
in the record. Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265 (Del. 1981); Pochvatilla v. 
United States Postal Serv., 1997 WL 524062 (Del. Super. Jun. 9, 1997); 19 Del. C. § 3323(a) (“In 
any judicial proceeding under this section, the findings of the [Board] as to the facts, if supported 
by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall 
be confined to questions of law.”). “Substantial evidence” is “such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion”. Gorrell v. Division of Vocational Rehab., 
1996 WL 453356, at *2 (Del. Super. July 31, 1996). The Court’s review is limited. “It is not the
appellate court’s role to weigh the evidence, determine credibility questions or make its own factual 
findings, but merely to decide if the evidence is legally adequate to support the agency’s factual 
findings.” McManus v. Christiana Serv. Co., 1197 WL 127953, at *1 (Del. Super. Jan. 31, 1997). 

B. Mr. Pitts’ Right to Unemployment Benefits 

Title 19 of the Delaware Code provides an individual shall be disqualified for unemployment 
benefits if the individual was discharged for just cause in connection with the individual’s work. 19 
Del. C. § 3314 (2). “Generally, the term ‘just cause’ refers to a wilful or wanton act in violation of 
either the employer’s interest, or of the employee’s duties, or of the employee’s expected standard 
of conduct.” Abex Corp. v. Todd, 235 A.2d 271, 272 (Del. Super. 1967). 

Appellant presents several arguments for the Court’s consideration: first, Appellant argues 
that the administering doctor did not attempt to reach him to discuss the results of the drug screen 
with Mr. Pitts as is prescribed procedure; second, Appellant posits that the drug test results were 
inconclusive given the fact that Appellant was taking various medication at the time the test was 
administered; and finally, Appellant contends that he was out of the office due to sinusitis, as 
opposed to back pain, and thus, the drug screen was improperly ordered. In essence, Appellant 
argues that the Board’s decision is not supported by substantial evidence. 

Employer counters Appellant’s allegations with citations to the record and also argues that 
Mr. Pitts’ appeal was untimely filed and, accordingly, must be dismissed for lack of subject matter 
jurisdiction. 

At the outset, the Court concludes it has jurisdiction to hear the matter. Employer correctly 
notes that the Board’s decision became final on January 30, 2006, and Mr. Pitts was required to file 
his notice of appeal within ten days of that date pursuant to 19 Del. C. § 3323. Employer asserts Mr.
Pitts did not file his notice of appeal until well after that deadline had passed, on July 11, 2006. In 
fact, Court records show that Mr. Pitts filed his initial notice on January 30, 2006. Unfortunately, 
the caption was filled out incorrectly and that error was not corrected until July 11, 2006. The 
original notice was captioned as the case was captioned before the Board: that is, “Ralph and Paul 
Adams, inc. v. Samuel L. Pitts, Sr.”. 

This Court “generally adheres to a policy of judicial leniency towards pro se [litigants]”. 
Limehouse v. Steak & Ale Restaurant Corp., 2004 WL 304339, at *2 (Del. Super. Feb. 5, 2004). In 
this instance, Mr. Pitts made a good faith effort to comply with the notice requirement. Both parties 
were correctly identified in the notice and Employer has not alleged any prejudice as a result of the 
original incorrectly captioned filing. Mr. Pitts’ mistake in using the caption from the proceedings 
below was not unreasonable given the fact that he was proceeding pro se. The Court will not dismiss 
the appeal due to a failure to timely file notice under these circumstances. 

With regard to Mr. Pitts’ substantive challenges, his first argument is without merit. The 
Court will defer to the Board’s credibility determinations regarding whether a phone call was placed 
to Mr. Pitts by the administering physician. Dr. Jack Dilts testified before the Board that he tried to 
contact Mr. Pitts on seven occasions. Dr. Dilts further testified that, after being unable to reach Mr. 
Pitts, he waited the requisite ten days before contacting Employer with the results of the test. The 
Board clearly found Dr. Dilts’ testimony credible and this Court will not disturb that finding. 
Accordingly, Mr. Pitts’ challenge to the Board’s decision on the grounds that Dr. Dilts did not 
attempt to contact him prior to notifying Employer of the results from the drug screen must fail. 

Mr. Pitts also argues that the results of the drug screen were tainted by the fact that he was 
taking several prescribed medications at the time it was administered. However, Mr. Pitts did not
present any evidence to the Board, or to the Appeals Referee, that this was the case. Before this 
Court, Mr. Pitts asserts that coworkers who have known him for many years would testify that he 
has never failed a drug test. The Court’s review is limited to the record before it. If Mr. Pitts had 
additional testimony he wished the Board to consider, be it either medical expert opinion or character 
evidence, he had ample opportunity to present such testimony below. As it stands, this Court will 
not reverse the Board’s rejection of Mr. Pitts’ hypothetical arguments. 

Finally, Mr. Pitts argues he was not properly subjected to a drug test given that the injury, 
which provided the basis for the test, had occurred years before. The Board’s decision reads, in 
relevant part: 

[T]he Claimant reported a work injury which would have subjected him to the 
required drug testing. The Union Agreement clearly states that employees who are 
injured are required to be tested within 48 hours. Further, if the test is positive, 
immediate dismissal will occur. In this case, the Employer has demonstrated that the 
Claimant reported a work injury, was tested within 48 hours of the report and was 
terminated for the positive result in violation of the work agreement and work rules. 
Such violation is a demonstration of willful or wanton misconduct. 
Board Decision at p. 3 (emphasis added). 

In fact, the Union Agreement states any employee who has an injury on the job must submit 
to a drug screen “within 48 hours of the injury.” (emphasis added). If the drug screen is positive, 
the employer may immediately dismiss the employee “in accordance with company work rule #7.” 
A violation of work rule #7 entails “reporting to work or working while under the influence 
of intoxicating beverages and/or narcotics or other drugs or having possession of the same on 
company property.” 

The Court concludes that there was no evidence presented below to support a finding that 
Mr. Pitts submitted to the drug screen within 48 hours of any injury. Ms. O’Neal testified that Mr.
Pitts’ back injury occurred on or about June 8th. Mr. Pitts testified, and argues to this Court, that 
his back injury actually occurred in 2001. The Board did not make a factual determination as to 
when any injury occurred. Union policy dictates that an employee undergo a drug screen within 48 
hours of an injury. Because the Board found Mr. Pitts was required to undergo drug testing pursuant 
to this policy, the absence of a finding considering when the injury occurred may not be overlooked. 

The Board is directed to hold another hearing on this matter and determine when the injury occurred 
that resulted in the order for the drug screen and/or, if applicable, whether Mr. Pitts was ordered to 
undergo a drug screen pursuant to any other company policy. 

Conclusion 

For the reasons set forth herein, the Board’s decision denying unemployment insurance 
benefits to Mr. Pitts is remanded and the Board is directed to conduct another evidentiary hearing 
in this matter consistent with this opinion. 

Very truly yours, 
T. Henley Graves