Opinion
C.A. No. K11A-01-002 WLW.
August 26, 2011.
ORDER
This 26th day of August, 2011, upon consideration of the record and briefs filed by the parties, it appears that:
1. This is a pro se appeal by Mary H. Davis ("Davis") from the decision of the Unemployment Insurance Appeal Board ("UIAB" or "Board") on January 5, 2011, reversing the decision of the Unemployment Compensation Appeals Referee and denying benefits to Davis, finding that she was discharged from her employment for just cause.
2. Davis was employed by the Kidz, Ink, Inc. ("Kidz, Ink" or "Employer"), as a preschool lead teacher from August 20, 2010 to September 16, 2010. She was required to agree to execute a Teach and Support Staff Faculty Agreement ("employee agreement") which required her to comply with all Kidz, Ink policies in the Employee Handbook, Orientation, and job description. The employment agreement on page two, requires staff members ". . . to not slap, strike, hit, jerk, grab, pinch, bite . . . a child or use other physical or degrading punishment" and, inter alia, that such activities are grounds for immediate termination. Davis also signed Kidz, Ink's Appropriate Touch Policies.
Appellee's name is "Kidz, Ink, Inc." which is different than the caption.
3. On September 16, 2010, an incident occurred where Davis was having difficulties with two children, pulling a child from his seat, intending to place him in a chair and causing the child to fall. She was also accused of physically turning or pulling a child across the classroom so she could call the parents. A parent complained and The Office of Child Care Licensing ("OCCL"), of the Department of Services for Children, Youth and Their Families, reviewed surveillance tapes and concluded that the complaint of improper discipline was substantiated. Her actions were reviewed by Kidz, Ink and she was terminated based upon her violation concerning disciplining and handling of children as shown in the recorded video of the incident. The video recording of the incident was not reviewed by the Board Claim Deputy or the Appeal Referee.
4. Tashoma Paton, the Employer's representative, did review the surveillance tape of the incident and confirmed the facts as stated above. Brandy Carter, another witness for Employer, further corroborated the testimony of Ms. Paton.
Standard of Review
5. The Court has jurisdiction pursuant to Title 19, Section 3323 of the Delaware Code. In the absence of fraud, the Court defers to the Board's findings of facts. On appeal from a decision of the UIAB, the scope of the Court's review is limited to a determination of whether the Board's decision is supported by substantial evidence, and whether that decision is free from legal error. The Court possesses limited review power of the factual findings of an administrative agency. Specifically, ". . . the findings of the UIAB as to the facts, if supported by the evidence and in the absence of fraud, shall be confined to the question of law. The Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Rather, the Court is restricted to a consideration of the record.
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); N.A. v. Capella, 2003 WL 1880127 (Del. Super.).
Unemployment Ins. Appeal Bd. of Dept. of Labor v. Duncan, 337 A.2d 308 (Del. 1975); Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239 (Del. Super. 1979).
Malatesta v. Thiokol Corp., 1994 WL 146026 (Del. Super.) (quoting Delaware Code Ann. tit. 19 § 3323 (a)).
Johnson v. Chrysler Corp. 213 A.2d 64, 66 (Del. 1965); Hubbard v. Unemployment Ins. Appeal Bd., 352 A. 2d 761 (Del. Super. 1976).
6. Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It requires "more than a scintilla but less than a preponderance" of the evidence. The Court reviews a legal determination by the Board for abuse of discretion. Questions of law are reviewed de novo.
Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
Hundley v. Riverside Hosp., 1993 WL 542026 at *5 (Del. Super., Sept. 27, 1993).
Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
7. Davis contends that she was discharged without just cause, claiming that she was not aware of Employer's policies, nor did she sign a policy of "just cause." She further argues that Kidz, Ink failed to show the surveillance tape to substantiate the Employer's version of the events, relying on hearsay.
8. In response, Kidz, Ink urges this Court to affirm the UIAB's decision. Kidz, Ink contends that the UIAB decision was supported by substantial evidence and Davis was terminated for just cause and that the decision was free from legal error.
9. The pivotal issue of this appeal is whether hearsay spoken by a witness, and supported by another, is sufficient to warrant competent evidence. Presented to the UIAB were two witnesses who supported the surveillance tape showing Davis handling and disciplining two children with the result of one child falling to the ground and the other child being dragged across the room. The Board properly found that this conduct violates Kidz, Ink's policy and therefore, constituted a willful or wanton violation of a reasonable employment policy. The Board is the finder of fact, as well as the arbiter of the credibility of the witnesses presented. Additionally, contrary to Davis' position, the Board found that she signed the appropriate policy guidelines so she was aware of the "Appropriate Touch Policies." Witnesses may corroborate hearsay testimony, which may be part of an internal investigation as described by the OCCL investigation. Davis does not raise or argue that legal error was committed by the Board. Resolving disputes of fact and credibility is the province of the UIAB which has the sole discretion to accept the testimony of witnesses. Therefore, this Court concludes that the UIAB decision was supported by substantial evidence. For the foregoing reasons, the decision of the UIAB is affirmed.
See Toribio v. Peninsula United Methodist Homes, Inc., 2009 WL 153871 at *4 (Del. Super. June 23, 2009).
Connections Community Support Programs, Inc. v. Bantum, 2001 WL 1628474 at *2 (Del. Super. Mar. 30, 2001).
IT IS SO ORDERED.