IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
GEORGE POWELL, 
Appellant 
v. 
NORTHEAST TREATMENT 
CENTERS, INC., 
and 
UNEMPLOYMENT INSURANCE 
APPEAL BOARD, 
Appellees. 
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) C.A. No.: 03A-03-002 PLA 
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Submitted: September 16, 2003 
Decided: December 17, 2003 
UPON APPEAL FROM A DECISION OF 
THE UNEMPLOYMENT INSURANCE APPEAL BOARD 
AFFIRMED. 
ORDER 
George Powell, Wilmington, Delaware, Pro Se, Appellant. 
Bruce C. Heron, Esquire, Akin & Herron, P.A., Wilmington, Delaware, Attorney 
for NorthEast Treatment Centers, Inc., Appellee. 
Stephani J. Ballard, Esquire, Deputy Attorney General for the State of Delaware, 
Wilmington, Delaware, Attorney for Unemployment Insurance Appeal Board, 
Appellee. 
ABLEMAN, JUDGE 

George Powell ("Appellant") has appealed from the decision of the 
Unemployment Insurance Appeal Board of the State of Delaware ("UIAB" or 
"Board") wherein the Board affirmed the decision of the Appeals Referee that 
Appellant had been discharged for just cause and, therefore, is disqualified from 
receiving unemployment benefits pursuant to 19 Del. C. § 3315(2). Upon review 
of the parties’ submissions and the record below, the Court concludes that the 
Board’s decision should be affirmed. 

Statement of Facts 

Appellant was employed by NorthEast Treatment Centers, Inc. ("NET" or 
"Employer") a/k/a Lower Kensington, from January 4, 2000 until September 16, 
2002. NET is a section 501(c)(3) non-profit corporation that has been providing 
behavioral health and social services in Delaware and Pennsylvania for over 30 
years. Effective September 17, 2002, Appellant was terminated from his position 
as a Child Care Counselor at NET’s Iron Hill Residence Center located in Newark, 
Delaware. Specifically, NET’s Iron Hill Residential Center provides a residential 
treatment program for youths recovering from substance abuse addiction. 

The first incident culminating in Appellant’s discharge from NET occurred 
on September 4, 2002, two weeks prior to his official termination date. At that 
time, he tapped a co-worker, Gennie Tolliver, on the buttocks. According to 
Appellant, "[I] accidentally tapped her, I meant to tap her on her back and it went 
all the way down to her butt." In her testimony to the Board, Ms. Toliver testified 
that Appellant "reached up under her and grabbed her behind." Mr. 
Cokney further testified that he told the Appellant that Ms. Toliver was offended 
by the touching, explained to Appellant the difference between talking and 
touching, and instructed him on the seriousness of the offense. Although Mr. 
Cokney did not provide the Appellant with a written or verbal warning that his job 
was in jeopardy, he did counsel the Appellant on the impropriety and gravity of his 
conduct. Appellant conceded, and Ms. Toliver testified to the fact, that Appellant 
subsequently apologized to Ms. Toliver, but that she still remained wary of him. 

On September 11, 2002, Appellant, Ms. Toliver, and several other 
employees were seated at the dinner table during a break period while the 
teenagers were upstairs having their "quiet time." According to Appellant’s 
testimony, Ms. Toliver was holding on to his food and told him that he wasn’t 
going to get any because he was too big. Appellant claims that, jokingly, he told 
Ms. Toliver to give him his food or he was going to go over and "tap her on the 
butt." On the following day, September 12, 2002, Ms. Toliver reported the second 
incident to Mr. Cokney. Mr. Cokney subsequently discussed this episode with his 
direct supervisor, Mr. McFeeley, and Appellant was placed on suspension pending 
the outcome of further investigation. Appellant was not scheduled to return to 
work until Monday, September 16, 2002. 

On September 16, 2002, Mr. Cokney spoke with Appellant and apprised him 
of Ms. Toliver’s second allegation of sexual harassment. Appellant felt that he 
could not be around the teenagers knowing that his job was in jeopardy, so he 
requested the rest of the day off. On Tuesday, Appellant called into work and Mr. 
Cokney informed him that he was being investigated with a recommendation for 
termination. A week later, Mr. Cokney informed Appellant that NET had 
investigated the September 11, 2003 incident and that Appellant had been 
discharged, effective September 17, 2002. 

Procedural Posture 

Following his termination from NET, Appellant filed for unemployment 
compensation benefits on September 29, 2002. On October 11, 2002, the Claims 
Deputy of the Delaware Department of Labor, Division of Unemployment 
Insurance, made the determination that Appellant was disqualified from receipt of 
benefits. After examining the facts surrounding Appellant’s discharge, the Claims 
Deputy concluded that NET had "just cause"  to discharge him, based on a 
determination that Appellant’s actions rose to a level of wanton or wilful 
misconduct. The Claims Deputy emphasized that, when discharging an employee 
for just cause, the burden of proof rests on the employer and requires a showing 
that the employee was conscious of his conduct and recklessly indifferent to the 
consequences. The Claims Deputy found that NET had satisfied its burden of 
proof. 

Appellant filed a timely appeal on October 21, 2002. A hearing before an 
Appeals Referee of the Delaware Department of Labor, Division of 
Unemployment Insurance, was conducted on December 11, 2002. The Appellant 
testified before the Appeals Referee. NET did not participate, nor did it have a 
representative present on its behalf. On January 7, 2003, the Appeals Referee 
issued its decision, affirming the decision of the Claims Deputy that Appellant was 
discharged for just cause and was disqualified from receipt of unemployment 
benefits. Incorporated in its findings of facts, the Appeals Referee elaborated on 
the Claims Deputy’s findings, noting that: 

   In a discharge case, the employer must show by a 
   preponderance of the evidence that the claimant was 
   discharged for just cause in connection with his work. Just 
   cause exists where the claimant commits a wilful or wanton 
   act or engages in a wilful or wanton pattern of conduct in 
   violation of the employer’s interest, his duty to the employer 
   or his expected standard of conduct. 
   
   The issue in this case is whether the claimant committed an act 
   of wilful or wanton misconduct that provided the employer 
   with just cause to discharge him .… [F]or there to be a 
   finding of wilful or wanton misconduct a prior unequivocal 
   warning is required putting the employee on notice that a 
   repetition of certain behavior will be grounds for dismissal. 
   There are some types of conduct, however, which by their 
   very nature must necessarily constitute wilful or wanton 
   misconduct. These include some instances of insubordination, 
   theft, violence or threats of violence, and other activities 
   where the employee acts with reckless disregard for the 
   employer’s interests. The claimant, while not specifically 
   warned after the first incident, was counseled and must have 
   known that his behavior was not acceptable . . . . [H]owever, 
   two weeks later he referred to the previous incident in front of 
   other staff as he "joked" with the co-worker. This activity 
   could not be condoned by the employer . . . . [T]o joke about a 
   previous allegation of sexual harassment in this manner was a 
   reckless act that showed a wanton disregard for the interest of 
   the employer and for the employment relationship.

On January 14, 2003, pursuant to 19 Del. C. § 3318, Appellant filed a timely 
appeal from the Appeals Referee’s decision to the Board. Appellant attended the 
Board hearing conducted on February 5, 2003, and presented Dara Boger and 
Orenda Poindexter, two witnesses on his behalf. Also present were Tim McFeeley, 
employer representative, Ms. Toliver and Mr. Cokney, employer witnesses. 

The Board issued its decision on February 19, and its revised decision on 
March 5, both of which affirmed the decision of the Appeals Referee. In its 
decision, the Board noted that it had considered the entire record and had adopted 
the findings of fact and conclusions of law enumerated by the Appeals Referee. 
Specifically, the Board found that Appellant’s joking about the prior touching 
incident constituted wilful or wanton conduct, disqualifying him from receiving 
benefits. Further, the Board accepted Ms. Toliver’s testimony as more credible 
than that of Appellant, found that the Appellant engaged in the touching 
intentionally, and also that he wilfully or wantonly made the second remark. The 
Board noted that, "[A]ppellant’s conduct was clearly not the sort of conduct an 
employer should have to tolerate in the work place and was in violation of 
employer’s policy." 

The Board’s decision became final on March 15, 2003. Appellant filed a 
timely notice of appeal from the Board’s decision to this Court on March 14, 2003. 
In the instant appeal, Appellant claims four grounds upon which the Board’s 
decision should be reversed: 1) "third letter from Board reversing first decision"; 
2) "I was not a wanton act"; 3) "I was not given a warning"; and 4) "Gennie 
Toliver lied, she did not place her hand on the Bible." 

Issues on Appeal 

NET timely filed its answer brief and raises two issues on appeal. First, Net 
contends that Appellant’s conduct on September 4 and on September 11, 2003, 
respectively, constituted "just cause" for his discharge from employment with 
NET. Second, having been properly discharged for "just cause," Appellant is not 
entitled to unemployment insurance benefits. 

Standard of Review 

The Delaware Supreme Court and this Court repeatedly have emphasized 
the limited appellate review of factual findings of an administrative agency.12 The 
function of the reviewing Court is limited to determining whether substantial 
evidence supports the Board’s decision regarding findings of fact and conclusions 
of law and is free from legal error. Substantial evidence means such relevant 
evidence as a reasonable mind might accept as adequate to support a conclusion.

Moreover, substantial evidence is that evidence from which an agency fairly and 
reasonably could reach the conclusion it did. It is more than a scintilla but less 
than a preponderance. When reviewing a decision on appeal from an agency, the 
Superior Court does not weigh the evidence, determine questions of credibility, or 
make its own factual findings. It is well established that it is the role of the 
Board, not this Court, to resolve conflicts in testimony and issues of credibility. 
Whenever the factual issues are fairly debatable, it is the duty of the Board to 
formulate decisions about the weight and credibility of various evidence or 
testimony presented to the Board. The Court’s responsibility is merely to 
determine if the evidence is legally adequate to support the agency’s factual 
findings. If the agency or Board’s decision is supported by substantial evidence, 
the Court must sustain the decision of the Board, even though it would have 
decided otherwise had it come before it in the first instance. 

In essence, the Court does not sit as trier of fact, nor should the Court 
replace its judgment for that of the Board. Specifically, when considering 
questions of fact, due deference shall be given to the experience and specialized 
competence of an administrative board. It is the exclusive function of an 
administrative board to evaluate the credibility of witnesses before it, as 
evidenced by the weight and reasonable inferences to be drawn therefrom. Thus, 
the Court determines if the evidence is legally adequate to support the agency’s 
factual findings. Application of this standard "[r]equires the reviewing court to 
search the entire record to determine whether, on the basis of all the testimony and 
exhibits before the agency, it could fairly and reasonably reach the conclusion that 
it did." In this process, "[t]he Court will consider the record in the light most 
favorable to the prevailing party below." Only where there is no satisfactory 
proof in support of the factual findings of the Board, may the Superior Court or the 
Supreme Court overturn it.

Discussion 

A cursory review of the issues raised by Appellant on appeal indicates that 
they are neither substantive, nor well grounded in the law. As such, these meritless 
claims are not appropriate issues to be raised on appeal. Nevertheless, in deference 
to the Appellant, the Court will address each issue under the penumbra of 
substantial evidence in support of the Board’s "findings of fact" and "conclusions 
of law" which are to be "free from legal error." 

Appellant’s first issue raised on appeal questions the accuracy and 
credibility of the decision issued by the Board. As noted previously, the Board 
made an inadvertent error in the "Decision" subsection of its initial written 
decision, dated February 5, 2003, by affirming the Appeals Referee’s decision but, 
mistakenly, awarding benefits to the Appellant. This was an obvious clerical error 
since the text and analysis of the entire body of the decision unequivocally 
indicates that the Board affirmed the Appeals Referee’s decision, especially its 
findings of facts and conclusions of law. In so affirming, the Board is mandated by 
19 Del. C. § 3315 (2) to deny unemployment benefits to Appellant. 

Second, in both the Notice of Appeal and in his reply brief, Appellant 
maintains that his conduct on both occasions was neither reckless nor wanton. He 
claims that the initial incident merely consisted of his reaching out to touch Ms. 
Toliver’s shoulder, but he missed or misjudged his reach, and touched her 
buttocks. This was all part of the normal hi-jinks and "joking around" that 
routinely occurred during the co-workers’ dinner period and breaks. Examination 
of the record, including, but not limited to, Ms. Toliver’s testimony and the 
testimony of his immediate supervisor, Mr. Cokney, controverts these facts. 

Instead, the evidence reveals an entirely different picture of inappropriate touching, 
peppered with innuendos, and accompanied by prohibited sexual harassment and 
misconduct. Hence, as the Court shall further discuss herein, Appellant’s second 
allegation is not supported by substantial evidence. 

In his third ground for appeal, Appellant contends that he was not given a 
warning after the initial September 4, 2002 incident. Ostensibly, employees are 
entitled to some form of notice or warning that their performance is unacceptable 
before being discharged. This warning need not expressly state the ultimate 
consequences, but must give notice of the impropriety of the acts. Further, in 
Coleman v. Department of Labor, the Court stated that, "[t]he absence of 
advanced warning concerning the consequences of given acts, as opposed to notice 
of their impropriety, does not preclude a discharge for wilful misconduct." 
In his testimony at the Board hearing, Appellant contradicted his contention 
that he was not supplied with notice or warning. He admitted that, at his meeting 
with Mr. Cokney, he was told there was to be no further "touching or anything like 
that." Additionally, the record indicates that Mr. Cokney’s supervisory notes of 
the September 5, 2002 meeting with the Appellant plainly state that Mr. Cokney 
informed the Appellant of the seriousness of the offense and clarified that, "that 
sort of behavior would not be tolerated." Mr. Cokney’s notes also point out that 
Appellant "seemed to understand the serious nature of his action and stated that he 
would be sure not to make further verbal or physical gestures towards Ms. 
Toliver." Also, NET’s employee policy handbook, which the record reflects 
Appellant acknowledged as having read and understood upon his initial hiring, 
clearly spells out that Appellant’s conduct violated the Group II Work Rules. 
Violation of these Rules could result in termination without interim disciplinary 
measures. Accordingly, Appellant knew, or should have known, of these policies 
prohibiting such misconduct. 

Appellant’s last contention, predicated on his belief that Ms. Toliver was 
untruthful in her testimony -- because she did not place her hand on the Bible -- is 
totally without merit. The first page of the Board hearing transcript validates that 
all persons who would be testifying, including Ms. Toliver, placed their right hands 
on the Bible and swore to tell the truth. 

Turning to the substantive issues on appeal, the Court finds that Appellant’s 
conduct on September 4 and on September 11, 2003, respectively, constituted "just 
cause" for his discharge from employment with NET. Delaware courts have 
repeatedly defined "just cause" as 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." As emphasized previously, wilful or wanton misconduct 
requires a showing that one was conscious of one’s conduct and recklessly 
indifferent of its consequences. 

The Claims Deputy, the Appeals Referee, and the Board all found that 
Appellant was discharged for "just cause." The Court also finds that the facts and 
testimony contained in the record support these determinations and provide the 
requisite substantial evidence to affirm the Board’s decision. It is the Court’s 
opinion that Appellant intentionally committed the first act of touching Ms. 
Toliver. When he was hired by NET, he signed a written acknowledgment of his 
receipt and understanding of the employee policy handbook, which explains, 
among other things, the employer’s policy prohibiting sexual discrimination and 
harassment, and the nature of employee discipline resulting from prohibited 
conduct. Specifically, NET’s employee policy handbook differentiates between 
Group I Violations (resulting in progressive disciplines) and Group II Violations 
(resulting in suspension or termination). Group II violations that result in 
termination without interim disciplinary procedures include: 1) violating NET’s 
sexual harassment policy; 2) verbally, physically, or sexually abusing an 
employee; and/or 3) instigating or participating in disorderly conduct, assault, or 
verbal or physical fighting. Armed with this knowledge and information, 
Appellant improperly touched Ms. Toliver in violation of his employer’s policies. 

The Court finds that his subsequent joking and verbal threat to touch Ms. 
Toliver’s buttocks two weeks later constituted willful or wanton behavior, again in 
violation of his employer’s polices. By his own admission, at the meeting with Mr. 
Cokney after the initial touching incident, Appellant was made cognizant of the 
impropriety of his act and was instructed on the severity of his conduct. Yet, two 
weeks later, he again chose to violate his employer’s required standards of 
acceptable work place conduct. His verbal threat was tantamount to an overt act of 
sexual harassment and contained those qualities and/or characteristics of "specific 
intent" and "heedless or reckless conduct," inherent in the concepts of "willful" 
and "wanton" as delineated in Delaware’s case law. 

In assessing the evidence presented and formulating its decision, the Board 
considered both the factual evidence and the credibility of the witnesses, and 
performed its exclusive function of reconciling inconsistent testimony and 
determining the credibility of witnesses. Upon reviewing the Board’s decision on 
appeal, this Court will not weigh the evidence, determine questions of credibility, 
or make its own factual findings. The Board accepted Ms. Toliver’s testimony as 
more credible than the testimony of the Appellant. It is the duty of the Board, and 
not of this Court, to resolve conflicts in testimony and issues of credibility. In 
accordance with the Board’s finding, the Court holds that the evidence is 
overwhelmingly convincing and legally adequate to support the Board’s factual 
finding that Appellant was discharged for "just cause." Absent an abuse of 
discretion, a reviewing court may not disturb the Board’s decision. 

Accordingly, this Court holds that the decision of the Unemployment 
Insurance Appeal Board, finding that Appellant was terminated for "just cause" 
and denying unemployment compensation benefits pursuant to 19 Del. C. § 
3315(2), is based upon substantial evidence and free of legal error. 

Conclusion 

For the foregoing reasons, the decision of the Unemployment Insurance 
Appeal Board is hereby AFFIRMED. 

IT IS SO ORDERED. 

Peggy L. Ableman, Judge 
cc: George Powell 
Bruce C. Heron, Esquire 
Stephani J. Ballard, Esquire 
Prothonotary