IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 

IRVING THOMPKINS JR., ) 
Appellant, ) 
v. 
FRANCISCAN ELDER CARE ) 
and the UNEMPLOYMENT ) 
INSURANCE APPEAL BOARD ) 

Appellees. 

Submitted: March 17, 2008 
Decided: June 27, 2008 

MEMORANDUM OPINION 

Appeal from Unemployment Insurance Appeal Board. AFFIRMED. 

CARPENTER, J. 

Introduction 

Before this Court is Irving Thompkins’ ("Appellant") appeal from the 
Department of Labor, Division of Unemployment Insurance Appeal Board’s 
("Board") decision, where it found that Mr. Thompkins was discharged by his 
employer, Franciscan Elder Care, ("Appellee") for just cause. Upon review of the 
record in this matter, the Court finds the Board’s decision is supported by substantial 
evidence and is therefore AFFIRMED. 

Facts 

Appellant was an employee of Franciscan Elder Care for approximately ten and 
a half years. During that time period Appellant had a substantial record for tardiness 
and absenteeism, and was issued several warnings and suspensions. Appellant 
maintains his frequent absences were due to his wife’s medical condition. On 
December 28, 2006, Appellant was suspended for two days and was warned that 
further violations of attendance policies would result in his termination. Appellee 
claims Appellant continued to violate company policies and on March 27, 2007 
Appellant was given the option to resign or be terminated. He chose to resign. 

As a consequence of his resignation, Appellant sought unemployment benefits 
through the Division of Unemployment Insurance, which found him ineligible due 
to the fact that Appellant had voluntarily resigned. Appellant appealed the decision 
and the Referee determined that Appellant had been constructively discharged from 
his position, as opposed to voluntarily resigning, but that the discharge was based on 
Appellant’s wilful and wanton misconduct, rendering him ineligible for 
unemployment benefits pursuant to 19 Del. C. §3314(2).1 

Appellant appealed the Referee’s decision and on September 5, 2007 the Board 
held a hearing to address the appeal. The Appellant and Ann Rutkowski, Appellee’s 
representative, appeared and testified. In its decision the Board affirmed the 
Referee’s decision denying unemployment benefits to Appellant, finding that he was 
discharged from his employment for just cause.2 Subsequently, Appellant filed the 
instant appeal, to which Appellee has responded. The following represents the 
Court’s decision on the matter. 

Standard of Review 

This Court’s role in reviewing an appeal from the Board is limited to an 
evaluation of the record, in the light most favorable to the prevailing party, to 
determine if it includes substantial evidence that a reasonable mind accepts as 
adequate support for the conclusion and is free from legal error.3 Therefore, the Court 
does not address issues of credibility or independently weigh the evidence presented 
to the Board.4 If the record supports the Board’s findings, the Court must accept 
those findings even though the Court might reach a different conclusion on the facts 
presented.5 

Discussion 

The question before this Court is whether the Board had substantial evidence 
to determine that Appellant acted wilfully and wantonly when he continually violated 
Appellee’s attendance policies, providing his employer "just cause" for his 
termination, and excluding him from eligibility to receive employment benefits. The 
Court finds that the answer to this question is yes and that the Board had substantial 
evidence to reach its conclusion. 

At the Board’s hearing, Appellee had the burden of proving by a preponderance 
of the evidence that Appellant was terminated for just cause. Just cause is a "wilful 
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 This includes 
conduct that is a conscious act by the claimant, or "reckless indifference leading to 
a deviation from established and acceptable workplace performance."7 Additionally, 
"just cause" exists if an employee violated a company rule, especially if he was on 
notice of the rule.8 

First, the Board agreed with the Referee’s determination that Appellant was 
discharged from his employment as it is defined under the statute. Appellant was told 
on his last day of work that he was going to be "let go," but was given the choice of 
resigning as opposed to being terminated, and Appellant chose the former, not 
wanting to tarnish his employment history with a termination. The Referee found that 
because Appellant would have been discharged had he not resigned, he was in effect 
"constructively discharged" from his position, triggering the application of 19 Del. 
C. 3314(2). The Board in turn treated Appellant’s forced resignation as a discharge. 
The Court agrees with this finding. 

Second, Appellant testified before the Appeals Referee that he knew he was 
in danger of losing his job if he continued violating the attendance polices. 

THE REFEREE: 
Mr. Thompkins, you did receive the 
discipline in the suspension back in 
December of ‘06 for excessive tardiness and 
other attendance issues, is that correct? 

IRVING THOMPKINS: Yes. 

THE REFEREE: 
Yes. And you knew that if you continued to 
be late for work and miss work with an 
unexcused absence that eventually you were 
going to be terminated from your 
employment? 

IRVING THOMPKINS: Yes but I had a problem. My wife had sugar 
real bad and had to go to the hospital with 
her. . . 9

 This testimony reflects that the Appellant was on notice that this pattern of 
conduct was in violation of his employer’s interest and his failure to modify this 
behavior would result in his termination. While the Court is sympathetic to 
Appellant’s proffered reason for his absences, it appears that there was a gradual 
disciplinary effort by the Appellee to raise its concerns with the Appellant, which 
continued to be ignored by him. While appreciative of the Appellant’s wife’s medical 
condition, the unique nature of Franciscan Elder Care’s work requires it to have a 
reliable workforce, and the Appellant’s absences left them with no alternative other 
than termination. Therefore, after examining the record below, the Court finds that 
there was substantial evidence before the Board to show that Appellant was 
discharged from his employment for just cause, and the Board’s decision is affirmed. 
Conclusion 

For the foregoing reasons, the decision of the Board is AFFIRMED. 

IT IS SO ORDERED. 

Judge William C. Carpenter, Jr.