Cartwrightv.Last Straw Incorporated, CA.# 05A-11-008-FSS

Superior Court of Delaware, New Castle CountyJul 19, 2006
CA.# 05A-11-008-FSS (Del. Super. Ct. Jul. 19, 2006)

CA.# 05A-11-008-FSS.

Submitted: April 4, 2006.

Decided: July 19, 2006.

Upon Appeal from the Unemployment

Insurance Appeal Board — AFFIRMED.

ORDER


Fred S. Silverman, Judge.

Appellant worked for Appellee, a furniture store. She was fired for absenteeism. After an evidentiary hearing, the Unemployment Insurance Appeals Board denied benefits. Appellant, pro se, filed a timely appeal.

I.

On December 27, 2005, the Prothonotary issued a briefing schedule calling for Appellant's Opening Brief on January 17, 2006 and Appellee's Answering Brief on February 6, 2006. Appellant filed a hand-written brief, which argues several ways that the administrative proceeding before the UIAB was flawed.

After Appellee failed to submit its Answering Brief, the Prothonotary mailed a Final Delinquent Brief Notice. Hearing nothing further from Appellee, on March 16, 2006 the court ordered that it would decide the case on the record, including Appellant's brief.

II.

Appellee presented evidence to the UIAB tending to show that Appellant's attendance was poor. Over an extended time, for one reason or another, she failed to report. Appellant was warned about her absenteeism in August 2005. Appellant missed three days in September 2005. The first day, arguably, she could not appear due to bad weather. On the other days, however, personal matters were more important than her job. When Appellant did not appear on time on the third day, another employee told Appellant that she had been fired.

III.

Because this is an appeal, the court's role is circumscribed. As to questions of law, the review is plenary. As to the facts, the court does not examine the evidence and make its own findings. The court must uphold the administrative decision if legally sound and based on substantial evidence. Substantial evidence is "relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion."

Unemployment Ins. Appeal Bd. of Dept. of Labor v. Duncan, 337 A.2d 308 (Del. 1975).

Streett v. State, 669 A.2d 9, 11 (Del. 1995).

IV.

Appellant argues that she was not progressively disciplined, and so on. Nevertheless, the court agrees with the Board. Showing up to work and staying on the job is fundamental. Appellant was warned about her poor attendance, then failed to show up for work. Under these circumstances, Appellant's failure to come to work constitutes just cause. Even if Appellant's excuses were legitimate, at some point chronic absence from work can amount to cause for discharge. Here, the Board had reason to find that Appellant's excuses were not legitimate. And to the extent Appellant had the sort of position where a warning was required before discharge, the evidence supports the finding that Appellant was absent after warning.

V.

For the foregoing reasons, the Unemployment Insurance Appeal Board's December 22, 2004 decision, which was mailed on December 28, 2004, is AFFIRMED.

IT IS SO ORDERED.