IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
ALBERTA BOWERS, ) ) Appellant, ) ) v. ) C.A. No.: N14A-09-009 CLS ) PROFESSIONAL ) TRANSPORTATION, INC. and ) UNEMPLOYMENT ) INSURANCE APPEALS BOARD, ) ) Appellees. )
On Appeal from the Decision of the Unemployment Insurance Appeals Board. REMANDED.
ORDER
Alberta Bowers, pro se Appellant.
Professional Transportation, Inc., 3700 E. Morgan Avenue, Evansville, Indiana, 47715. Appellee.
Paige J. Schmittinger, Esq., Delaware Department of Justice, 820 North French Street, Wilmington, Delaware 19801. Attorney for Appellee, Division of Unemployment Insurance Appeals Board.
Scott, J. On this 11th day of May, 2015, upon consideration of the Appellant’s appeal
from a decision of the Unemployment Insurance Appeals Board (“Board”), the
Court finds as follows:
1. Alberta Bowers (“Appellant”) appeals the decision of the Unemployment
Insurance Appeal Board (the “Board”) affirming the decision of the Appeals
Referee (“Referee”) and finding that Appellant was discharged for just cause in
connection with her employment from Professional Transportation, Inc.
(“Employer”).
2. Before the Appeals Referee, Employer testified that its policy dictates that a
driver may not have any driver’s license suspensions or revocations within the
last five years otherwise they are unable to remain employed as a driver. 1
Employer also testified that its runs a Motor Vehicle Report (“MVR”) check at
the time an employee is hired.2 Furthermore, Employer testified that its policy
is that any time there is an accident involving one of its drivers and a work
vehicle that an MVR is then run again for clarification of the status of the
license of that particular driver.3 Both at the Referee and Boarding hearings,
Appellant testified that she disclosed that she had two driver’s license
suspensions within the last five years on her employment application for
Employer. At the Board hearing, the representative for Employer testified that
1 Record at 23. 2 Id. at 26. 3 Id. at 23. 2 he had no personal involvement in Appellant’s hiring.4 He also testified that
he was not aware of whether Appellant’s prior suspensions were disclosed at
the time of her hiring. 5
3. Pursuant to Employer’s policy, Appellant’s MVR was run in order to verify the
status of her driver’s license after she was involved in an accident with her
work vehicle on March 10, 2014. On March 18, 2014, Appellant was
terminated based on the results of that MVR indicating that Appellant had a
suspended driver’s license within the previous five years. Appellant had a
prior accident during her employment with Employer, on August 17, 2013, the
MVR check for which Employer’s records list as “pending” at the time
Appellant was terminated in March of 2014. 6
4. The Referee found that Appellant had not previously disclosed the suspensions
on her driver’s license to Employer, and that Employer became aware of those
suspensions as a result of the MVR run after Appellant’s March 10, 2014
accident.7 For those reasons, the Referee found Appellant was terminated for
just cause. 8 The Board affirmed the Referee’s determinations. Moreover, the
Board found that, while Appellant testified that Employer was aware of her
license suspensions prior to her hiring, “the record is devoid of evidence that
4 Id. at 50. 5 Id. 6 Id. at 8. 7 Id. at 36. 8 Id. at 37. 3 supports that contention.” 9 The Board also held that “[i]n the absence of
corroborating documentation, the Board found Employer’s contention that they
did not have advanced knowledge of these violations to be credible.” 10
5. On this appeal, and the proceedings below, Appellant argues that Employer
was aware of the suspensions on her license at the time of her hiring. As
support for this argument, Appellant consistently asserts that: (1) Employer did
not submit Appellant’s application for employment at any proceeding, (2)
Employer ran an MVR driving record check on Appellant upon hiring her, (3)
Employer knew that Appellant’s license had been suspended within five years
prior to/at the time of hiring her, and (4) Employer violated its own policy by
hiring Appellant knowing that her license had been suspended within five
years. Employer did not participate on this appeal.11
6. On appeal from the Unemployment Insurance Appeal Board, the Superior
Court must determine if the Board’s factual findings are supported by
substantial evidence in the record, free from legal error and was not the product
of a capricious disregard of competent evidence.12 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to
9 Id. at 51. 10 Id. 11 McIntyre v. Unemp't Ins.App. Bd., 962 A.2d 917, *2 (Del. 2008) (TABLE) (“Under Superior Court Civil Rule 107(e), the Superior Court has discretion to decide the merits of an appeal where a non-appealing party declines to file an answering brief.”). 12 Delaware Transit Corp. v. Roane, 2011 WL 3793450 *1(Del. Super. Aug.24, 2011); Unemployment Ins. Appeal Bd. v. Duncan, 621 A.2d 340, 342 (Del. 1993). 4 support a conclusion.” 13 The Court must review the record to determine if the
evidence is legally adequate to support the Board’s factual findings. 14 The
Court does not “weigh evidence, determine questions of credibility or make its
own factual findings.” 15 The Court reviews questions of law de novo to
determine “whether the Board erred in formulating or applying legal
precepts.”16 Where, as in this case, the Board adopts the factual findings of an
Appeals Referee, this Court will also review the Appeals Referee's findings of
fact and conclusions of law.17
7. An employer has the burden of proof by a preponderance of the evidence
where an employee was discharged for “just cause.”18 Just cause for
termination exists where a claimant committed a willful or wanton action in
violation of either the employer’s interests or of the employee’s expected
standard of conduct.19 Therefore, this Court’s review on appeal is limited to
whether there was substantial evidence to support the Board’s finding that
Employer met its burden of proof in showing “just cause” for Appellant’s
termination.
13 Histed v. E.I. duPont de Nemours & Co., 621 A.2d 340, 342 (citing Olney v. Cooch, 425 A.2d 610, 614 (1981)). 14 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 15 Id. at 67. 16 Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991). 17 See Boughton v. Div. of Unemployment Ins. of Dep’t of Labor, 300 A.2d 25, 26 (Del. Super. 1972). 18 Price v. Blue Plate Diner, 2003 WL 21537924, *2 (Del. Super. Apr. 4, 2003). 19 Coleman v. Dep’t of Labor, 288 A.2d 285, 288 (Del. Super. 1972). 5 8.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
ALBERTA BOWERS, ) ) Appellant, ) ) v. ) C.A. No.: N14A-09-009 CLS ) PROFESSIONAL ) TRANSPORTATION, INC. and ) UNEMPLOYMENT ) INSURANCE APPEALS BOARD, ) ) Appellees. )
On Appeal from the Decision of the Unemployment Insurance Appeals Board. REMANDED.
ORDER
Alberta Bowers, pro se Appellant.
Professional Transportation, Inc., 3700 E. Morgan Avenue, Evansville, Indiana, 47715. Appellee.
Paige J. Schmittinger, Esq., Delaware Department of Justice, 820 North French Street, Wilmington, Delaware 19801. Attorney for Appellee, Division of Unemployment Insurance Appeals Board.
Scott, J. On this 11th day of May, 2015, upon consideration of the Appellant’s appeal
from a decision of the Unemployment Insurance Appeals Board (“Board”), the
Court finds as follows:
1. Alberta Bowers (“Appellant”) appeals the decision of the Unemployment
Insurance Appeal Board (the “Board”) affirming the decision of the Appeals
Referee (“Referee”) and finding that Appellant was discharged for just cause in
connection with her employment from Professional Transportation, Inc.
(“Employer”).
2. Before the Appeals Referee, Employer testified that its policy dictates that a
driver may not have any driver’s license suspensions or revocations within the
last five years otherwise they are unable to remain employed as a driver. 1
Employer also testified that its runs a Motor Vehicle Report (“MVR”) check at
the time an employee is hired.2 Furthermore, Employer testified that its policy
is that any time there is an accident involving one of its drivers and a work
vehicle that an MVR is then run again for clarification of the status of the
license of that particular driver.3 Both at the Referee and Boarding hearings,
Appellant testified that she disclosed that she had two driver’s license
suspensions within the last five years on her employment application for
Employer. At the Board hearing, the representative for Employer testified that
1 Record at 23. 2 Id. at 26. 3 Id. at 23. 2 he had no personal involvement in Appellant’s hiring.4 He also testified that
he was not aware of whether Appellant’s prior suspensions were disclosed at
the time of her hiring. 5
3. Pursuant to Employer’s policy, Appellant’s MVR was run in order to verify the
status of her driver’s license after she was involved in an accident with her
work vehicle on March 10, 2014. On March 18, 2014, Appellant was
terminated based on the results of that MVR indicating that Appellant had a
suspended driver’s license within the previous five years. Appellant had a
prior accident during her employment with Employer, on August 17, 2013, the
MVR check for which Employer’s records list as “pending” at the time
Appellant was terminated in March of 2014. 6
4. The Referee found that Appellant had not previously disclosed the suspensions
on her driver’s license to Employer, and that Employer became aware of those
suspensions as a result of the MVR run after Appellant’s March 10, 2014
accident.7 For those reasons, the Referee found Appellant was terminated for
just cause. 8 The Board affirmed the Referee’s determinations. Moreover, the
Board found that, while Appellant testified that Employer was aware of her
license suspensions prior to her hiring, “the record is devoid of evidence that
4 Id. at 50. 5 Id. 6 Id. at 8. 7 Id. at 36. 8 Id. at 37. 3 supports that contention.” 9 The Board also held that “[i]n the absence of
corroborating documentation, the Board found Employer’s contention that they
did not have advanced knowledge of these violations to be credible.” 10
5. On this appeal, and the proceedings below, Appellant argues that Employer
was aware of the suspensions on her license at the time of her hiring. As
support for this argument, Appellant consistently asserts that: (1) Employer did
not submit Appellant’s application for employment at any proceeding, (2)
Employer ran an MVR driving record check on Appellant upon hiring her, (3)
Employer knew that Appellant’s license had been suspended within five years
prior to/at the time of hiring her, and (4) Employer violated its own policy by
hiring Appellant knowing that her license had been suspended within five
years. Employer did not participate on this appeal.11
6. On appeal from the Unemployment Insurance Appeal Board, the Superior
Court must determine if the Board’s factual findings are supported by
substantial evidence in the record, free from legal error and was not the product
of a capricious disregard of competent evidence.12 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to
9 Id. at 51. 10 Id. 11 McIntyre v. Unemp't Ins.App. Bd., 962 A.2d 917, *2 (Del. 2008) (TABLE) (“Under Superior Court Civil Rule 107(e), the Superior Court has discretion to decide the merits of an appeal where a non-appealing party declines to file an answering brief.”). 12 Delaware Transit Corp. v. Roane, 2011 WL 3793450 *1(Del. Super. Aug.24, 2011); Unemployment Ins. Appeal Bd. v. Duncan, 621 A.2d 340, 342 (Del. 1993). 4 support a conclusion.” 13 The Court must review the record to determine if the
evidence is legally adequate to support the Board’s factual findings. 14 The
Court does not “weigh evidence, determine questions of credibility or make its
own factual findings.” 15 The Court reviews questions of law de novo to
determine “whether the Board erred in formulating or applying legal
precepts.”16 Where, as in this case, the Board adopts the factual findings of an
Appeals Referee, this Court will also review the Appeals Referee's findings of
fact and conclusions of law.17
7. An employer has the burden of proof by a preponderance of the evidence
where an employee was discharged for “just cause.”18 Just cause for
termination exists where a claimant committed a willful or wanton action in
violation of either the employer’s interests or of the employee’s expected
standard of conduct.19 Therefore, this Court’s review on appeal is limited to
whether there was substantial evidence to support the Board’s finding that
Employer met its burden of proof in showing “just cause” for Appellant’s
termination.
13 Histed v. E.I. duPont de Nemours & Co., 621 A.2d 340, 342 (citing Olney v. Cooch, 425 A.2d 610, 614 (1981)). 14 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965). 15 Id. at 67. 16 Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991). 17 See Boughton v. Div. of Unemployment Ins. of Dep’t of Labor, 300 A.2d 25, 26 (Del. Super. 1972). 18 Price v. Blue Plate Diner, 2003 WL 21537924, *2 (Del. Super. Apr. 4, 2003). 19 Coleman v. Dep’t of Labor, 288 A.2d 285, 288 (Del. Super. 1972). 5 8. The Court finds that there was not substantial evidence to support the Board’s
finding that Appellant was terminated for just cause, and that the Board erred
as a matter of law when it shifted the burden of proof from Employer to
Appellant. The sole basis for the Board’s finding that Employer had satisfied
its burden of proof was Employer’s testimony before the Referee that it was
not aware of Appellant’s license suspensions prior to the MVR run subsequent
to the March 10, 2014 accident. At both the Referee and Board hearings,
Appellant made reference to her employment application for Employer in
support of her argument that Employer was aware of her license suspensions at
the time of her hiring. Yet, the only documentation submitted at either
proceeding regarding notice to Employer of Appellant’s prior license
suspensions is Appellant’s MVR run for her March 10, 2014 accident.
Appellant’s employment application with Employer, a record traditionally
retained by an employer, is not in the record. Nor is there documentation of
the MVR for Appellant at the time she was hired, in accordance with
Employer’s policy, or the MVR for Appellant as a result of Appellant’s
accident during her employment six months earlier.20 The Board disregarded
Appellant’s reference to documentary evidence supporting her argument
because Appellant did not produce her employment application, despite the
20 Both of those records would also be obtained and held by Employer. 6 facts that the burden of proof was on Employer to offer evidence in support of
just cause and employment applications are retained by employers.
9. For these reasons, the Court finds that the Board’s decision, finding just cause
for termination, is not supported by substantial evidence. Furthermore, the
Court finds that the Board erred as a matter of law when it improperly shifted
the burden of proof from Employer to Appellant by disregarding Appellant’s
valid reference to documentary evidence held by Employer. Accordingly, the
Board’s decision is REMANDED with the instruction to complete the record
with Appellant’s employment application for Employer, as well as any similar
documentary evidence that may be held by Employer which supports whether
or not Employer had knowledge of Appellant’s prior license suspensions at the
time of her hiring.
IT IS SO ORDERED.
/s/Calvin L. Scott Judge Calvin L. Scott, Jr.