Submitted: February 5, 2018
Consideration of Appellant's Appeal from the Unemployment
Insurance Appeal Board-AFFIRMED
Jeffrey J Clark, Judge
NOW TO WIT, this 12th day of March, 2018,
upon consideration of the record and the briefing by the
parties, IT APPEARS THAT:
Before the Court is the pro se appeal of Appellant
Yolanda Bouyer-Bello (hereinafter "Appellant") from
the decision of the Unemployment Insurance Appeals Board
(hereinafter "the Board" or "the UIAB").
The appeal involves Appellant's unemployment compensation
allegedly due after her termination by her employer Tricell
Communications LLC (hereinafter "Tricell").
Specifically, she appeals a UIAB determination that she was
terminated from her employment with just cause pursuant to 19
Del. C. § 3314(2). As relevant background,
after a June 14, 2017 hearing, an Appeals Referee for the
Division of Unemployment Insurance (hereinafter
"Referee") found that Tricell terminated Appellant
for just cause. The Referee based this determination
primarily on the testimony of a Tricell District Manager
(hereinafter "District Manager"), who testified
that Appellant left the store unmanned and was found at the
back exit smoking a cigarette doused with embalming fluid.
The District Manager testified that Appellant appeared
intoxicated, and that when she asked whether the Appellant
was high, the Appellant smiled and nodded affirmatively.
Appellant appealed the Referee's determination, and on
September 13, 2017 the UIAB held a hearing. At the hearing,
Appellant disputed that she admitted to the District Manager
that she was intoxicated. In its decision, the UIAB
considered evidence presented to the Referee, the
Referee's decision, and evidence presented at the
September 13, 2017 hearing. That evidence included the
employer's policy prohibiting employees from working
under the influence of drugs or alcohol. Based on the
totality of the evidence, the Board affirmed the decision of
the Referee that Appellant was discharged for just cause.
Pursuant to 19 Del. C. § 3323(a), the Superior
Court's jurisdiction is limited to a review for errors of
law, together with a limited factual review. Namely, the
review is "limited to the question of whether there is
substantial evidence in the record to support the Board's
findings and whether such findings are free from legal error.
In such an appeal, this Court does not weigh the evidence,
determine questions of credibility, or make its own factual
findings." The burden is on the employer to prove
termination for just cause by a preponderance of the
Here, the Board applied the correct legal standard below.
Namely, pursuant to 19 Del. C. § 3314 an
employee is ineligible to receive unemployment benefits if he
or she has been terminated for just cause. The term just
cause denotes a willful or wanton act in violation of either
the employer's interest, or the employee's expected
standard of conduct. Willful or wanton conduct is that which is
evidenced by either conscious action, or reckless
indifference leading to a deviation from established and
acceptable workplace performance.
After reviewing the record, the Court finds substantial
evidence that Tricell terminated Appellant for just cause.
The UIAB found that the District Manager testified credibly
that the Appellant appeared to be intoxicated, had left the
store unattended, and admitted to using drugs. Although
Appellant denied admitting to drug use, the Board found the
District Manager's testimony to be more credible.
Pursuant to 19 Del. C. § 3323(a), this Court
performs only a limited factual review. Credibility
assessments of testifying witnesses are appropriately left
for the finder of fact, which in this case is the
administrative agency. Here, a review of the record reveals
no facts sufficient to warrant departing from the Board's
THEREFORE, for the reasons cited, the Board's
decision is AFFIRMED
IS SO ORDERED.