IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
CAROLYN J. WITCHER, ) 
) 
Appellant, ) 
) 
v. ) 
) Superior Court 
) CA No. 01A-08-010-JEB 
) 
DELAWARE PARK, ) 
and THE UNEMPLOYMENT ) 
INSURANCE APPEAL BOARD, ) 
) 
Appellees, ) 
Submitted: December 7, 2001 
Decided: March 28, 2002 
Appeal from a Decision of the Unemployment Insurance Appeal Board. 
Decision Affirmed. 
Appearances: 
Carolyn J. Witcher, Pro Se 
Appellant 
Wendy K. Voss, Esquire 
Attorney for Delaware Park - Appellee. 
Stephani Ballard, Esquire 
Attorney for the Unemployment Insurance Appeal Board - Appellee. 
JOHN E. BABIARZ, JR., JUDGE. 

This is the Court’s decision on Claimant Carolyn Witcher’s appeal of a 
decision of the Unemployment Insurance Appeal Board (Board) denying her petition 
for unemployment benefits. For the reasons explained below, the Board’s decision 
is Affirmed. 

FACTS 

Claimant was employed as a booth cashier by Delaware Park LLC (Employer) 
from October 12, 1999 until January 3, 2001. She was terminated from her 
employment as a result of repeated violations of Employer’s absenteeism policy, 
which involves assessment of points for unexcused absences and a progressive form 
of discipline. According to the employee handbook, which Claimant received and 
signed for, one point is assessed for each day of absence if the employee calls in to 
report the absence. As many as six points can be assessed for the first no call/no 
show day (when an employee is absent and fails to call), and one point for each 
subsequent no call/no show day. The progressive discipline program includes a verbal 
warning, a written warning, a final written warning with a one to three-day 
suspension, and, finally, termination. An employee who accumulates seven or more 
points within a calendar year, and has received all the steps of progressive discipline 
may be terminated. These rules do not apply to days for which an employee presents 
a note from a physician. 

The record evidence pertaining to Claimant’s absenteeism includes Employer’s 
records documenting Claimant’s accumulation of points and steps of progressive 
discipline. On September 14, 2000, Claimant received one point for two instances 
of lateness and three points for absenteeism on July 15 and 16, and September 10, 
2000.1 On December 15, 2000, Claimant received one point and a written warning 
for being absent on December 13, and 14, 2000. On December 27, 2000, Claimant 
received six points for absence on December 19 through 23 and December 26, 2000. 
When she returned to work on December 27, she was informed of the additional 
points and was given a second written warning and a one-day suspension for 
December 28. She called out again on December 29 and 30. On January 1, 2001, a 
day which most employees were expected to work because of the high volume of 
business, Claimant did not call and did not report to work. On January 3, she 
received a phone call informing her that she had been terminated from her position. 

Claimant filed a petition for unemployment insurance benefits with the 
Department of Labor, Division of Unemployment, which was denied by a claims 
deputy. Claimant appealed this result to an appeals referee who reversed the deputy’s 
Certified R ecord at 00 28, hereinafter referred to as "Rec . at page no."
decision and granted Claimant’s petition for benefits. Employer appealed to the 
Board. After conducting hearing, the Board found that Claimant was discharged from 
her work for just cause in connection with her work and denied her petition. 
Claimant filed a timely appeal to the Superior Court. Briefing is complete, and the 
issues are ripe for decision. 

STANDARD OF REVIEW 

In reviewing a decision of the Board, the Court’s role is to determine whether 
the Board’s findings are supported by substantial evidence and are free from legal 
error. Substantial evidence is evidence that a reasonable person might accept as 
adequate to support a conclusion. The Court does not weigh the evidence, determine 
questions of credibility or make factual findings. It merely determines if the 
evidence is legally adequate to support the Board’s findings.

DISCUSSION 

Because Claimant is a pro se litigant, her written submissions to the Court may 
be held to a somewhat less stringent standard than those drafted by lawyers. The 
Court will therefore construe Claimant’s arguments as a challenge to the Board’s 
factual findings and legal conclusions. Employer argues that the Board’s findings are 
supported by substantial evidence and that the Board made no error of law. 

Under Delaware unemployment law, an individual is disqualified from 
receiving unemployment benefits if she was discharged for "just cause in connection" 
with her work. The burden is on the employer to show that the employee was 
terminated for just cause. The element of just cause means wilful or wanton conduct 
in violation of the employer’s interest, the employee’s duties or the employee’s 
expected standard of conduct. 

In this case, the record evidence shows that Claimant had accrued 13 points as 
of December 30, 2000. The no call/no show of January 1, 2000 resulted in five more 
points. The record also shows that the various steps of progressive discipline had 
been followed. Employer’s records document the absences, the points accrued and 
the disciplinary steps taken. Each sheet is signed by various supervisors, as well as 
Claimant, indicating her receipt of the report if not her agreement with it. 

Claimant argues that she was excused from work for her December and January 
absences because she was still experiencing the effects of a work accident that 
occurred on September 11, 2000, when she hit her head on a counter. The record 
shows that as a result of the work accident, Claimant missed six weeks from work and 
was excused by her treating physician, Dr. Goodman. Employer suggested that she 
see a neurologist to help resolve the problem, and Claimant selected Dr. Leopole. 
After examining her, Dr. Leopole wrote a note releasing Claimant to work without 
restrictions on December 4, 2000. 

Claimant also had two notes from Dr. Goodman. She presented one dated 
December 21, 2000, which excused her from December 18 through December 22. 
Employer, believing that Claimant obtained this note only after she realized she was 
receiving points for her absences, chose to rely on the note from Dr. Leopole 
indicating that Claimant had recovered from the work accident on December 4, 2000, 
and could return to work without restriction. Claimant asserted that she was still 
having headaches because of the work accident and that her absences were therefore 
excusable. Even if Dr. Goodman’s note was valid excuse for December 18 through 
22, Claimant accrued further points by calling in sick on December 23, 26, 29 and 30, 
2000. Claimant made no attempt to excuse these absences until she presented for the 
first time at the referee’s hearing a note from Dr. Goodman, dated February 8, 2001, 
excusing her from work retroactively from December 23, 2000. The Board was well 
within is discretion when it gave this post-dated note no weight. The result is that 
Claimant’s last four absences in December were unexcused and that because of the 
progressive discipline, Claimant was well aware that she was dangerously near 
termination, as noted by the Board. 

Claimant’s decision not to report to work on January 1, 2001, and not to notify 
her supervisor of her absence was the proverbial last straw. She was a no call/no 
show on one of Employer’s busiest days when all but the most senior employees are 
scheduled to work. Although Claimant asserts that this was not her regularly 
scheduled work day, Employer presented evidence that the schedule was posted at 
least two weeks earlier and that Claimant had had both the obligation and the 
opportunity to check her schedule. Based on the number of absences and Employer’s 
absenteeism policy, of which Claimant was well aware, the Court concludes that 
Employer carried its burden of showing that Claimant’s decision not to go to work 
and not to call in to report her absence was wilful misconduct in violation of her 
duties and of Employer’s expected standard of conduct. The Board made no error of 
law in denying Claimant’s petition for unemployment benefits. 

CONCLUSION

For the foregoing reasons, the Board’s decision denying Claimant Carolyn 
Witcher’s petition for unemployment benefits is Affirmed. 
It Is So ORDERED. 
Judge John E . Babiarz, Jr. 
JEB,jr/BJW/RMP 
Original to Prothonotary