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Fleury v. Unemployment Insurance Appeal Board

Superior Court of Delaware, Kent

July 17, 2014

MARIO FLEURY, Appellant,
v.
UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellee.

Submitted: June 19, 2014

Upon Consideration of Appellant's Appeal from the Unemployment Insurance Appeal Board

Mario Fleury, Pro se.

Catherine Damavandi, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware for Unemployment Insurance Appeal Board.

ORDER

Robert B. Young J.

SUMMARY

This is an appeal from a decision of the Unemployment Insurance Appeal Board ("the Board") denying unemployment benefits to Mario Fleury ("Appellant"), a former employee of KenCrest Community Living Services ("KenCrest Services" or "Employer"). Appellant was terminated for violating Employer's policy of sleeping while on duty. There is no evidentiary showing of Appellant's deviation from Employer's expected standard of conduct, except for the one incident in question. On the record, there appears to be no willful or wanton act by Appellant to support a finding of just cause for termination. Hence, the decision of the Board is REVERSED.

FACTS

Appellant was employed by KenCrest Services from June 7, 2010 to October 25, 2013. Appellant worked full-time as a Resident Advisor, earning $11.41 per hour. Between 1:30 a.m. and 1:45 a.m. on October 17, 2013, Appellant suffered a migraine headache. Consequently, Appellant took two Aleve tablets, and put his head down to rest in order to relieve his headache. Two witnesses for Employer, Suzanne Casey and Wendy Wilson, conducted an unannounced night check, and found Appellant sleeping on the job. Appellant woke up approximately five minutes after the two witnesses sat down next to him. Appellant denied sleeping on duty.

On October 25, 2013, Director Kim Vaughn of KenCrest Services sent Appellant a letter, notifying him that his employment had been terminated for his policy violation of sleeping on duty. The KenCrest Community Living Services Work Rules and Guidelines state, in Section XIII, that sleeping while on duty, with the exception of approved sleepovers, is prohibited, is considered neglect, and is grounds for termination. Appellant signed the KenCrest Community Living Services Work Rules and Guidelines Acknowledgment form on December 17, 2012.

On November 19, 2013, the Delaware Department of Labor Claims Deputy, determined that Appellant was disqualified for unemployment benefits, because Appellant was discharged from work for just cause. Appellant sent an Appeal Request Notification on November 25, 2013, challenging the prior decision by the Claims Deputy. In the Appeal Request Notification, Appellant stated that he is a veteran, and has suffered migraine headaches for "a very long time."

The Delaware Department of Labor, Division of Unemployment Insurance Appeals held a hearing, concerning the appeal to the Claims Deputy's decision, on December 19, 2013. The Appeals Referee, Geoffrey Silverberg, affirmed the Claims Deputy's decision, disqualifying Appellant for the receipt of unemployment benefits. Appellant sent an Appeal Request Notification to the Board on December 31, 2013. The Board held an administrative hearing regarding the decisions below on February 19, 2014.

During this administrative hearing, Appellant testified that he reported to work on the day in question to fill in for another employee. Appellant did so despite the facts that it was his day off, and that he had worked continuously for seven days at that point. Another witness and representative of Employer, Pamela Cannon, testified that the night shift staff is required to remain awake. On February 25, 2014, the Board affirmed the prior decision of the Appeals Referee.

Appellant submitted a Notice of Appeal of the Board's decision to this Court on March 10, 2014. Appellant submitted an Opening Brief in the instant matter on May 16, 2014. Appellee submitted a letter to the Court ...


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