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Brown v. Downs

Superior Court of Delaware, Kent

July 22, 2014

AUSTIN BROWN, Appellant,
DOVER DOWNS, Appellee.

Submitted: July 1, 2014.

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

Austin Brown, Pro se.

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




This is an appeal from a decision of the Unemployment Insurance Appeal Board ("the Board") denying unemployment benefits to Austin Brown ("Appellant"), a former employee of Dover Downs Casino ("Dover Downs" or "Employer"). Appellant was terminated for violating Employer's policy by taking unauthorized breaks, and for falsifying company records. On appeal, Appellant challenges the Board's decision on the ground that his hospital discharge documents, showing proof of his medical condition, were missing from his appeal before the Board.

The hospital discharge documents, which Appellant seeks to introduce into evidence before the Board, dated after June 13, 2013, the day in question, are not pertinent to the question of law posed. Appellant's prior performance issues, inconsistent testimony, and misconduct on June 13, 2013, provided sufficient just cause to discharge Appellant from his employment. Therefore, the decision of the Board is AFFIRMED.


Appellant worked as a security guard for Employer from May 26, 2010 until June 28, 2013 when he was discharged for taking unauthorized breaks, and falsifying company records. Appellant worked full-time making $10.58 per hour. On June 13, 2013, Appellant's break was scheduled for 2:40 am until 3:20 a.m. Appellant allegedly felt ill, so he went upstairs for his break at 2:06 a.m., and ordered food. He took his food into "the quiet room" to eat. At 2:40 a.m., Appellant swiped his badge at the time clock, and proceeded back into the quiet room to eat. Appellant left the quiet room at 3:39 a.m., went to the time clock, and again swiped his badge, this time at 3:40 a.m.

After returning to the gaming floor of Dover Downs, Appellant advised his supervisor that he had taken an extended break. Appellant asked if he could clock out, and then continue to work so that he could make up the time. Appellant's supervisor advised him to complete a missed punch form to correct his time. Appellant completed the missed punch form, indicating that he clocked out at 2:40 a.m. for lunch, and missed swiping back in 3:20 a.m.

The Employee Handbook provided by Employer lists falsification of company records or reports as inappropriate conduct. On January 22, 2013, Appellant signed the "Acknowledgment of Employment and Emplo ye e Handbook." Appellant received a final written warning with suspension on February 26, 2013 for performance issues. Employer also granted Appellant ADA accommodations for his diabetes. Employer allowed Appellant to take small breaks, when needed, to get a drink or snack, and to administer his medication, as long as he informed his supervisor. Appellant did not tell his supervisor that he needed a break due to his diabetes on June 13, 2013, the date in question.

___The security director met with Appellant and the shift manager on duty on June 13, 2013 to discuss the discrepancies between Appellant's actual break, and the time he submitted on the missed punch form. At first, Appellant stated that he swiped out for lunch, but did not swipe back in. When advised that the records showed that he had clocked back in at 3:40 a.m., Appellant said that he realized he had gone twenty minutes over on his break when he swiped back in, and offered to adjust his schedule. Then, when Appellant was told that he had gone upstairs to order food at 2:06 a.m., went to the quiet room, swiped out for a break at 2:40 a.m., and then swiped back in again at 3:40 a.m., Appellant stated that he was confused because of his diabetes.

On July 25, 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 August 2, 2013, challenging the prior decision by the Claims Deputy. The Delaware Department of Labor, Division of Unemployment Insurance Appeals held a hearing, concerning the appeal to the Claims Deputy's decision, on August 26, 2013. A representative of Employer testified that Appellant was questioned about the incident on June 13, 2013, during which questioning he changed his story several times. Based on the inconsistency of Appellant's testimony, the Appeals Referee did not find ...

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