SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 

DATE SUBMITTED: March 8, 2006 

Dear Counsel: 

This is the Court's ruling on Deborah Pulli’s appeal from an Unemployment Insurance 
Appeal Board decision. 

Statement of Facts 

Deborah Pulli, Appellant, was terminated from her employment with Intervet, Inc. 
(Intervet), Appellee, on March 15, 2005. Intervet’s reason for her termination was 
insubordination after disregarding repeated instructions not to discuss matters relating to an 
internal investigation of a complaint previously filed by Pulli. 

Pulli was employed as a laboratory technician at Intervet for approximately four and a 
half years. Following a short-term medical leave, Pulli returned to Intervet in January 2005. 
Upon her return, she allegedly discovered that her co-worker, who was running the lab in her 
absence, had falsified company records. Pulli spoke with her co-worker and told her that she
needed to inform management or that Pulli would inform them about the falsified records. 
Allegedly, her co-worker destroyed the documents, created new records, and told management 
that Pulli was harassing her. In response to these incidents, on February 18, 2005 Pulli filed a 
complaint with Human Resources Department (Human Resources) against her supervisor and coworker. 
Pulli listed two witnesses in her complaint. 

Upon receiving the complaint, Intervet began an investigation into Pulli’s allegations. 
Pulli was instructed not to communicate with her co-workers regarding the complaint and 
subsequent investigation. Further, Human Resources informed Pulli that the investigation was 
confidential and she was not to discuss the investigation with anyone but the investigating 
officers. If anyone tried to talk to her, she was to tell that person that she cannot discuss it and 
inform the investigating officers immediately. 

On March 14, 2005, Pulli contacted Eric Ellis to be a witness in the investigation. Ellis 
was not listed in Pulli’s complaint as a potential witness. She claims that Ellis was agreeable to 
being a witness. Ellis claims that he did not want to get involved and told her so. Pulli contacted 
Intervet’s Human Resources and provided Ellis’ name as an additional witness. At that point, 
Human Resources instructed Pulli to have no further conversations with Ellis concerning the 
investigation. 

According to Intervet, Pulli disregarded the instructions not to have further conversations 
relating to the investigation with Ellis. Intervet believed that Pulli attempted to discuss the 
investigation with Ellis. Allegedly, after Ellis was questioned by Human Resources, Pulli 
approached him in the research and development area and asked him about the interview he had 
with Human Resources. Ellis contacted Human Resources to inform them of this conversation. 

Pulli initially denied that this conversation occurred, but later admitted that she did speak to Ellis. 
However, Pulli claimed that she did not discuss the investigation. Ellis testified that he did not 
discuss the investigation with Pulli because he was told not to by Human Resources. 
Intervet discharged Pulli on March 15, 2005, for insubordination. The basis for the 
insubordination claim was Intervet’s belief that Pulli disregarded the repeated instructions to not 
discuss the investigation. 

Pulli filed for unemployment compensation benefits on March 17, 2005. On April 6, 
2005, a Claims Deputy denied this request because he found Pulli’s termination was for just 
cause and thus, she was ineligible for these benefits. 

Pulli appealed the Claims Deputy’s decision to an Appeals Referee, who heard her case 
on April 28, 2005. On May 11, 2005, the Referee affirmed the Claims Deputy’s decision, 
holding Pulli ineligible for benefits because her termination was for just cause. 
Pulli then appealed the Referee’s decision to the Unemployment Insurance Appeal Board 
(Board). Her appeal was heard on October 12, 2005. Only four Board members were present 
and heard her appeal. Two Board members agreed with the Referee’s decision that Pulli was 
terminated for just cause. The other two disagreed with the Referee’s decision. Board decisions 
require a majority vote to affirm or reverse the Referee’s decision and thus, according to 
precedent, the Referee’s decision stands in the case of a split vote by the Board. Pulli now 
appeals this decision to this Court. 

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 function of the reviewing Court
is to determine whether the agency’s decision is based on substantial evidence.1 Questions of 
law are to be reviewed de novo.2 Substantial evidence means such relevant evidence as a 
reasonable mind might accept as adequate to support a conclusion.3 The appellate court does not 
weigh the evidence, determine questions of credibility, or make its own factual findings.4 It 
merely determines if the evidence is legally adequate to support the agency’s factual findings.5 

Analysis 

The Appellant filed her opening brief pro se. She sets out the reason given for her 
termination as insubordination and interfering with an investigation conducted by Intervet’s 
Human Resources Department. She then argues that she should not have been fired because she 
did not interfere with the investigation; specifically, she did not speak to Ellis about the 
investigation. She points out that the Employee Standards of Conduct Handbook states: 
“Conduct jeopardizing an employee’s… ability to perform his or her job, or that of a co-worker, 
will not be tolerated and will result in corrective action, ranging from a warning to termination of 
employment”. The Appellant emphasizes that the term “corrective” is the key word. Next, the 
Appellant claims that Human Resources never informed her that she would be fired if she 
discussed the investigation. Thus, the Appellant argues that Intervet has not met the burden of 
reasonability to discharge her for the stated reasons.

The Appellant then sets out her version of the facts involved in this matter; specifically, 
her interactions with Ellis. She attacks Ellis’ version of the facts about their interactions as 
fabricated. She states that she never mentioned the investigation when talking with Ellis, even 
though she did ask him to be a witness for her in the investigation. She quotes Ellis’ testimony 
from the Board hearing where he states that he did not discuss the investigation with the 
Appellant because he was told not to. Thus, she believes that the investigation was not impeded 
and she should not have been fired. 

The Appellees argue that the Appellant is ineligible for unemployment benefits because 
she was terminated for just cause. Further, the Appellees argue that the Referee’s determination 
that the Appellant was terminated for just cause is supported by substantial evidence. The 
Appellees set out that “just cause” means “a willful or wanton act or pattern of conduct in 
violation of the employer’s interest, the employee’s duties, or the employer’s expected standard 
of conduct.”6 The Appellees state that “[w]illful and wanton conduct is that which is evidenced 
by either conscious action, or reckless indifference leading to a deviation from established and 
acceptable workplace performance”.7 According to the Appellees, insubordination is an 
employee’s “refusal to obey some order which a superior officer is entitled to give and have 
obeyed.”8 The Appellees argue that insubordination is sufficient substantial evidence to deny 
unemployment benefits and is just cause for termination.9 

The Appellees state that even though the Board was evenly split in this case, substantial 
evidence in the record still supports the Referee’s decision that the Appellant was terminated for 
just cause.10 The Appellees set out the alleged facts about the Appellant’s conduct; specifically, 
how she ignored the instructions not to discuss the investigation with anyone and especially Ellis. 
Finally, the Appellees state that deciding between alternate factual accounts and witness 
credibility is not for this Court on appeal.11 Thus, the Appellees argue that the Referee’s decision 
should be affirmed because it is supported by substantial evidence and is free from legal error. 
The Appellant’s reply brief attacks the Board’s tie vote. While Appellant did not raise 
this in her opening brief, the answering brief did address this issue, citing case law as to this 
issue. Therefore, this Court will address this issue. 

In the Appellant’s reply brief, it is argued that this matter is not properly before this Court 
for review because the tie vote by the Board does not constitute a legally significant decision. 
Appellant points out that the Board itself acknowledged that a vote of less than a majority has no 
legal significance, citing Warrington v. State12, but the Referee’s decision controls if there is not 
a majority. Appellant disagrees with the Board’s position and cites Hopson v. McGinnis13 in 
support of her argument. In Hopson, the plaintiff appealed her termination from the Division of 
Adult Corrections to the State Personnel Commission (Commission). The Commission’s vote 
was tied; and the Superior Court, on appeal, determined that the tie vote upheld the plaintiff’s 
termination and dismissed the plaintiff’s appeal. The Supreme Court overturned the Superior
Court’s decision based on the applicable statute, 29 Del. C. § 5949, stating the Commission 
actually decided nothing and that a tie vote “does not establish a Commission ruling nor take the 
matter to a conclusion by that body.”14 

The Appellant admits that the Supreme Court in Hopson based its decision on a statute 
then applicable to the Commission and provisions of Administrative Procedures Act, neither of 
which are applicable to this case. The Appellant analogizes the role of the Board to the 
Commission in Hopson. The Appellant points out that 19 Del. C. § 3321 empowers the Board to 
make rules and regulations relating to appeals and that the Board in its decision here stated that 
no decision can be decided without at least a majority of the Board. The Appellant states that the 
Rules of the Board set out that the Board only makes a legally significant decision with a 
majority vote so a tie vote decides nothing. The Appellant argues that as the Supreme Court 
rejected the Commission’s split vote, this Court should reject the Appellees’ assertion that the 
Appellant’s discharge was upheld by the split vote. 

The Appellant goes on to establish that this Court can review the record and break the tie 
or can remand this case back to the Board for decision according to Hopson.15 Appellant 
requests that the case be remanded back to the Board for further proceedings and decision 
because of the Board’s expertise. 

The Appellees cite to the Granison case along with others for support that this case is 
properly before this Court. Granison has the almost exact facts and circumstances as this case. 
There was a 2-2 vote by the Board and this Court examined and affirmed the Referee’s decision. 
The Hopson case is distinguishable from the case here. First, in the Hopson case there 
was no prior adjudication of the issue presented to the Commission unlike here where 
Appellant’s case had been ruled upon by a Claims Deputy and a Referee before reaching the 
Board. Thus, in Hopson there was not a prior decision to rely upon. Second, the Hopson case 
addresses a different statute and administrative system that do not apply to the case before this 
Court. Therefore, Hopson is not applicable to this case. 

The Referee and the Board heard testimony from both sides. Each party’s testimony 
contradicted the other’s. In her opening brief, the Appellant’s argument attacks factual issues 
and this Court does not weigh the evidence, determine questions of credibility, or make its own 
factual findings.16 It merely determines if the evidence is legally adequate to support the 
agency’s factual findings.17 Here, two members of the Board, the Claims Deputy, and the 
Referee, after weighing the evidence and the credibility of witness testimony, held that 
substantial evidence existed that Appellant was terminated for just cause and thus not entitled to 
unemployment benefits. 

“When there is a tie [at the Board level], the immediately preceding administrative 
decision controls.”18 Here, the Board was split 2-2 so the Referee’s decision controlled. The 
Referee ruled that there was just cause for Appellant’s termination and she was not entitled to 
unemployment benefits. 

The Referee based its decision on the facts presented and therefore cannot be overturned 
by this Court unless there was an abuse of discretion by the Board or Referee. The Board and the
Referee conducted the hearing appropriately and ruled within its powers. This Court is satisfied 
that the Referee’s decision is based on sufficient substantial evidence. While reviewing this case, 
no error of law or abuse of discretion has been found. Therefore, the decision of the Referee is 
affirmed. 

Conclusion 

For the above stated reasons, the Referee’s decision is affirmed. 

Very truly yours, 
T. Henley Graves