SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 

Dear Mr. Shade and Ms. Jones: 

This is my decision on Michael A. Shade’s (“Shade”) appeal of the Unemployment Insurance 
Appeal Board’s (the “UIAB”) denial of his application for unemployment benefits. Shade worked 
as a sales associate for Wal-Mart Associates, Inc. (“Wal-Mart”). Wal-Mart terminated Shade after 
he screamed obscenities at an assistant store manager. Shade filed an application for unemployment 
benefits. The Claims Deputy, Appeals Referee and UIAB all concluded that Wal-Mart had “just 
cause” for terminating Shade. Shade then filed a timely appeal with this Court. 

STATEMENT OF FACTS 

Shade went to a Wal-Mart store about an hour before he was supposed to start work there 
to go shopping on November 4, 2005. Just as a customer was about to back into a parking spot, 
Shade pulled into it. The customer asked Shade to move, which he did. However, instead of parking
in the employee parking area, as required by Wal-Mart, Shade parked in front of the store. Thomas 
Ludwig, an assistant store manager, saw Shade do this. He went outside and told Shade to move his 
vehicle. Shade, with his tires squealing, moved to the employee parking area. Ludwig then walked 
over to Shade and asked him, “What the h _ _ _ is your problem?” Shade responded, “This is not 
Wal-Mart’s f_ _ _ing parking lot!” Shade then clocked-in and went to work. He later demanded an 
apology from the assistant store manager. Wal-Mart terminated Shade that day. 

STANDARD OF REVIEW 

The Supreme Court and this Court repeatedly have emphasized the limited appellate review 
of the factual findings of an administrative agency. On appeal from a decision of the UIAB, this 
Court is limited to a determination of whether there is substantial evidence in the record sufficient 
to support the UIAB’s findings, and that such findings are free from legal error.1 Substantial 
evidence means such relevant evidence as a reasonable mind might accept as adequate to support 
a conclusion.2 The UIAB’s findings are conclusive and will be affirmed if supported by “competent 
evidence having probative value.”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 Absent an error of law, the UIAB’s 
decision will not be disturbed where there is substantial evidence to support its conclusions.6 

DISCUSSION 

The UIAB concluded that Wal-Mart had “just cause” to terminate Shade because of his 
behavior and use of obscenities. Shade argues that the UIAB’s conclusion is incorrect because Wal- 
Mart could not, in his view, terminate him for how he behaves, or what he says, when he is off-duty. 
Shade also argues that his statements, although they are admittedly obscene, are protected by the 
First Amendment to the United States Constitution. 

When an employer terminates an employee, the burden is on the employer to show the 
employee was terminated for “just cause.”7 “Just cause” is defined as a “wilful or wanton act or 
pattern of conduct in violation of the employer’s interest, the employee’s duties, or the employee’s 
expected standard of conduct.”8 It is well-established that an employee’s duty to abide by his 
employer’s interests and rules continues while the employee is off-duty.9 If the employee’s conduct 
while he is off-duty leads to his discharge, then the employee may be ineligible for unemployment 
benefits if his misconduct was related to his work.10 Disrespectful behavior toward management has
been found by this Court to constitute “just cause” for termination. Similarly, shouting obscenities 
at work has been found by this Court to be willful misconduct.11 

Shade’s conduct was related to his work. Everything that Shade did and said took place on 
Wal-Mart’s property12 and involved Wal-Mart’s employees and policies. As such, even though 
Shade was off-duty, his misconduct was related to his work. Shade’s behavior certainly constituted 
“just cause” for his termination. Shade clearly violated Wal-Mart’s interests, his duties and the 
expected standard of conduct for an employee. Shade, on two occasions, parked in the parking area 
reserved for Wal-Mart’s customers and only moved after being told to do so. Then Shade, in an 
admitted fit of anger, drove with his tires squealing to the employee parking area. Once there, Shade 
screamed obscenities at an assistant store manager. These are clear and obvious violations of how 
an employee should conduct himself at his employer’s place of business, whether on-duty or not, and 
certainly constituted “just cause” for Shade’s termination. 

Shade’s freedom of speech argument is not applicable. The First Amendment guaranties run 
against the federal and state governments, not against private entities.13 It is commonplace that the 
constitutional guarantee of free speech is a guarantee only against abridgement by the government, 
be it federal or state.14 In order for Shade’s freedom of speech rights to even be implicated, there has
to be some sort of governmental action that restricted his speech. There was no such action in this 
case. The action taken by Wal-Mart was that of a private entity, not a governmental entity. 

CONCLUSION 

The UIAB’s decision is both in accordance with the applicable law and supported by 
substantial evidence in the record. The UIAB’s decision is affirmed. 

IT IS SO ORDERED. 

Very truly yours, 
E. Scott Bradley