IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
C.A. No. 07A-07-006
Submitted: September 23, 2008
Decided: December 23, 2008
Carl D. Neff, Fox Rothschild LLP, Wilmington, DE, Attorney for the
Sandra Hughes, Pro Se Appellee
In this matter an employer seeks to overturn a ruling of the Unemployment
Insurance Appeals Board. Alternately the employer asks this Court to remand the matter
to the U.I.A.B. for a new hearing in light of newly discovered evidence. The Court will
discuss the employer’s requests separately.
I. The Appeal
This case represents a lesson on the consequences of a party’s decision to not
participate in the hearing conducted by the Unemployment Insurance Appeals Board.
Appellants in this Court are generally limited to arguments they have fairly presented to
the lower tribunal, in this case the U.I.A.B. Because the employer chose not to attend the
U.I.A.B. hearing, it is difficult, if not impossible, for it to show it preserved its arguments
for appeal by fairly presenting them below. Accordingly this Court cannot, and will not,
consider arguments in this appeal.
A. The Facts
The employer (“Mercantile”) appeals from a decision of the Unemployment
Insurance Appeals Board that Mercantile’s former employee, Sandra Hughes, was
entitled to unemployment benefits. Mercantile argues in large part that there was ample
evidence in the record supporting the decision of the Appeals Referee, who ruled in favor
of Mercantile. It also argues that the U.I.A.B. should have found – on the basis of Ms.
Hughes’ own testimony – that Ms. Hughes was insubordinate. Mercantile also contends
that the U.I.A.B. incorrectly stated the law. Finally, Mercantile asks this Court to remand
the matter so that it may present newly discovered evidence to the U.I.A.B.
The claimant, Ms. Hughes was first employed at Mercantile June 9, 1983. She
worked as a typesetter and throughout most of her career at Mercantile had a spotless
disciplinary record. At some time not specified in the record, but presumably in 2006,
Mercantile hired “Kelley,” who was to be Ms. Hughes’s assistant. This seems to be the
start of Ms. Hughes’s problems at Mercantile.
A good deal of friction developed between Ms. Hughes and Kelley. On November
20, 2006 Mercantile’s president, Coleman Bye, held a meeting with Kelley and others
(not including Ms. Hughes) in an effort to resolve the problems between Kelley and Ms.
Hughes. Accounts vary, but it is clear that Ms. Hughes, though uninvited, entered the
meeting in an agitated state. 1 The following day Mr. Bye met with Ms. Hughes and
others. At this meeting Ms. Hughes apologized for her conduct and promised she would
try to co-operate with Kelley. The relationship between Ms. Hughes and Kelley
continued to deteriorate, however. The day after this second meeting Kelley came to read
an email from Ms. Hughes to a Mercantile customer in which Ms. Hughes stated that
Kelley was “digging her own grave” because of her typesetting errors.
Shortly after the meeting with Mr. Bye, Ms. Hughes took a leave from work on
the advice of her physician. 2 She returned to Mercantile on March 1, 2007, at first
working half-days. After returning to work, Ms. Hughes used Mercantile’s email system
to communicate with two of Mercantile’s customers about presumably private matters.
One email read as follows:
“I’d like to speak with you confidentially sometime soon. Would it be ok for me
to call you later when we can talk?”3
The other read:
There is a dispute about exactly what was said, but because of the U.I.A.B.’s, and this Court’s, resolution
of the matter, it is not necessary to resolve that dispute.
Up until this time Ms. Hughes had not been subjected to any disciplinary action by her employer.
“Thank you for your welcome. I’ve been wanting to call you since I’ve been out,
but didn’t want to cause problems for you. I will be calling you sometime though,
I’d like to talk to you confidentially.” 4
Mercantile was understandably upset when it learned of these emails. Ms. Hughes
was summoned to a meeting by Mr. Bye on March 7, 2007 at which time she was told not
to use the company’s email system to contact outsiders about confidential matters. She
promised not to do this, and the U.I.A.B. found that she complied. The U.I.A.B. also
found that there was no discussion at the March 7 meeting about confrontations with
employees. The March 7 meeting must have been tumultuous. There is evidence that Ms.
Hughes was yelling during the meeting and stormed out twice only to be retrieved by
cooler heads. Several days after the March 7 meeting, Ms. Hughes was suspended until
further notice for sending the emails. She was terminated on March 22, 2007.
B. Mercantile’s Reasons for Terminating Ms. Hughes
The U.I.A.B. observed that the “reasons for [Ms. Hughes’] termination are not
clear from the record.” 5 A Fact-Finding Statement submitted by Mercantile lists three
instances of alleged misconduct:
“3/2/07 two emails to customers regarding confidential conversations
“11/22/06 email to client regarding another employee
“11/20/06 burst into closed door meeting, after listening in and threatened another
In a Separation Information Form, Mercantile advised the Department of Labor that Ms.
Hughes was terminated for
“inappropriate + hostile treatment of co-workers, voicing threats,
Op. at 3
subordination of mgmt, misuse of co. time, unauthorized use of email.”
Finally, in a letter to Ms. Hughes’s union, Mr. Bye gave the following reasons for her
Inappropriate and hostile treatment of co-workers
Voicing threats to the safety of co-workers
Insubordination towards management
Misuse of company time
The unauthorized use of company equipment to arrange meetings with
customers outside the workplace for “confidential” purposes, and also the
fact that you tried to arrange such meetings with customers
C. The Procedural History of this Claim
Ms. Hughes filed a claim for unemployment benefits and shortly thereafter a
Claims Deputy found that she was terminated without just cause and therefore entitled to
benefits. The employer appealed and an Appeals Referee conducted a hearing at which
Mercantile was represented by counsel. After the hearing the Referee issued an opinion in
which he found in favor of Mercantile. It was now Ms. Hughes’ turn to appeal, and she
filed a timely appeal to the Unemployment Insurance Appeals Board. After the hearing
the U.I.A.B. issued its opinion reversing the Referee and finding that Ms. Hughes was
qualified to receive benefits. Mercantile chose not to participate in the hearing before the
U.I.A.B.. As discussed below, that decision has significant consequences in the appeal
before this Court.
D. Mercantile’s Decision Not to Participate
in the Hearing before the Board
The statutory process for resolving unemployment claims makes it clear that the
General Assembly intended the U.I.A.B.–not the courts—to be the final arbiter in the vast
majority of disputed unemployment claims. For example, that process requires that
parties may not seek judicial review of a disputed unemployment claim unless they have
first presented that dispute to the U.I.A.B. 6 The statutory process further drastically
limits the scope of this Court’s review of the Board’s decision, 7 and the courts are
forbidden to enter a stay of the payments pending an employer’s appeal. 8 This statutory
framework achieves its purpose as relatively few U.I.A.B. decisions are appealed to this
It is important for a litigant to win before the U.I.A.B. This Court is by no means
a rubber stamp of the U.I.A.B.’s decisions, but due in large part to the expertise of the
U.I.A.B. and in smaller part to this Court’s limited scope of review, relatively few of the
appeals from the U.I.A.B. result in reversals. An informal survey shows that in calendar
year 2008 to date only 5 of this Court’s 31 decisions on appeals from the U.I.A.B. have
resulted in reversals and remands. 10 In sum, the Appeals Board is the critical juncture in
the process for resolving disputed unemployment claims.
It is against this backdrop that Mercantile chose not to participate in the hearing
before the U.I.A.B. The reasons for that decision are not clear from the record. There is
no explanation in Mercantile’s brief before this Court, but its Notice of Appeal sheds
some light on the matter. According to that Notice, Mercantile decided to forego
participation in the hearing before the U.I.A.B. because “it had believed it had reached a
global agreement with regard to Ms. Hughes relative to her employment … which
agreement was disavowed by Ms. Hughes on the morning of the hearing.” This cannot be
accurate as written because Mercantile’s Pennsylvania counsel wrote to the U.I.A.B. the
19 Del. C. sec. 3322(a)
19 Del. C. sec. 3323(a)
19 Del. C. sec. 3323(c)
In FY2008 62 U.I.A.B. decisions were appealed to the Superior Court. Administrative Office of the
Courts, Annual Report and Statistical Information.
See Chart attached as Appendix hereto.
day before the hearing that he would not be appearing at the hearing. The record does not
contain any indication that Mercantile sought a continuance of the hearing before the
U.I.A.B. nor is there any explanation why counsel was not prepared to go forward despite
the late collapse of settlement talks.
E. The Consequences of Mercantile’s
Decision not to Appear before the U.I.A.B.
There are significant consequences in this appeal to Mercantile’s decision not to
appear before the U.I.A.B. It has long been established that an appellate court will
generally refuse to consider contentions not fairly presented to the tribunal below.
Although Supreme Court Rule 8 11 currently embodies this principle, the principle
predates Rule 8 and necessarily exists independently of that rule. 12 The Supreme Court
has made it clear that this principle applies to the Superior Court when it is acting as an
appellate court. 13 “This rule furthers the goal of permitting agencies to apply their
specialized expertise, correct their own errors, and discourage litigants from reserving
issues for appeal.” 14 It is not surprising, therefore, that this Court routinely 15 refuses to
consider arguments not raised in the lower tribunal when it is sitting as an appellate court,
Rule 8 provides that “[o]nly questions fairly presented to the trial court may be presented for review;
provided however that when the interests of justice so require, the Court may consider and determine any
question not so presented.” Mercantile does not argue that an interest of justice exception applies here.
Equitable Trust Co. v. Gallagher, 77A.2d 548, 550 (Del. 1950).
Wilmington Trust Co. v. Conner, 415 A.2d 773 (Del. 1980).
Down Under, Ltd. V. Delaware Alcoholic Beverage Control Commission, 576 A.2d 675, 677 (Del.
E.g., Small v. MBNA America, 2008 WL 4365895 *2 (Del. Super. July 7, 2008) (“The appeals process
limits this court to examining the issues the litigant presented to the tribunal below.”); Lewis v. Dep’t of
Agriculture 2007 WL 315359, *4 (Del. Super. Jan. 31, 2007) (“When the Court acts in its appellate
capacity on an appeal from an administrative agency, it is limited to the record and will not consider issues
not raised before the agency”).
including appeals from the U.I.A.B. 16 Because Mercantile chose not to participate in the
hearing before the U.I.A.B., it is unable to show that it fairly presented its arguments to
that tribunal. 17
The focus of this dispute are events occurring in two different time periods:
November, 2006 and March, 2007. Mercantile devotes considerable portions of its brief
to the November events and argues that these events justify its termination of Ms.
Hughes. For example, Mercantile writes:
“One of the first events of insubordination involved a meeting in November,
“Shortly after that meeting in late November, 2006 [sic: 2007] 19 the Union also
brought its own charges against Ms. Hughes.” 20
“Ms. Hughes also confirms her participation in the conference call on or about
November 27, 2006 [sic: 2007]” 21
Ms. Hughes “agrees that she ‘broke into the meeting’ on or about November 20,
2006. A description of Ms. Hughes’s alleged conduct at that meeting follows. 22
“Ms. Hughes also confirms her participation in a conference call on or about
November 27, 2006 [sic: 2007] involving a threat she made to a co-employee.” 23
Mercantile argues that “[s]omehow, the Board chose to ignore the above cited testimony
before the Referee.” 24 Mercantile’s bewilderment at the U.I.A.B.’s analysis is misplaced.
Mercantile failed to fairly present this issue to the U.I.A.B. and apparently hoped the
O’Brien v. Unemployment Insurance Appeals Board, 1993 WL 603363 (Del. Super. Oct. 20, 1993);
Delstar Industries, Inc. v. Delaware Dep’t of Labor, 1997 WL 27109 (Del. Super. Jan. 8, 1997).
See Garvey v. Garvey, 2008 WL 5195352 (Del. Dec. 12, 2008) (Husband’s arguments not fairly
presented below when husband failed to appear at Family Court hearing).
Op. Br. 6
Throughout much of its brief Mercantile erroneously refers to meetings and conduct allegedly occurring
in November, “2007.” Ms. Hughes was long departed from Mercantile by then—she was terminated in
March, 2007. The records show that the alleged events to which Mercantile refers must have taken place in
Op. Br. 6
Id. at 8.
U.I.A.B. would do its work for it. It is not surprising, therefore, that the U.I.A.B. did not
analyze the evidence the same way Mercantile does for the first time on appeal. For the
reasons stated, this Court will not consider Mercantile’s argument.
There is a second, and equally compelling, reason why Mercantile’s argument
fails. The U.I.A.B. held that the events on November, 2006 could not be used to justify
Ms. Hughes’s termination because Mercantile condoned them. The Board opined:
“While the events of November 2006 may have provided a backdrop for the
actions – and reactions – of the following March, they cannot be considered the
cause of claimant’s termination. To the extent that the claimant’s actions 5
months prior to her termination were inappropriate, the Board concludes that the
employer’s lack of timely action constitutes condonation, which imposes upon the
employer the duty to warn the employee that such actions will no longer be
tolerated prior to terminating the employee for repetition of such behavior.” 25
Nowhere in its brief before this Court does Mercantile challenge the U.I.A.B.’s holding
that Mercantile condoned Ms. Hughes’s conduct in November 2006.
Because Mercantile has not challenged this ruling on appeal, it has waived any
argument that it was incorrect. It is settled that an appellant waives any argument when it
does not state fully state the grounds for the argument as well as apprise the reviewing
court of the authorities which support that argument. 26 When an appellant’s opening
brief in an appeal fails to address a particular ruling by the Board, the appellant waives
any claim that the ruling is error and is bound by it. 27 Having failed to challenge the
U.I.A.B.’s holding that the events of November, 2006 cannot be used to justify Ms.
U.I.A.B.. Op. at 4
Roca v. E.I. DuPont de Nemours & Co., Inc. 842 A.2d 1238, 1242 (Del. 2004)(argument considered
waived when brief did not “fully state the grounds for appeal as well as the arguments and supporting
authorities.”); Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994)(same); Von Feldt v. Stifel Financial
Corp., 714 A.2d 79, 866 (Del. 1998)(When a party fails to fully state an argument “we do not reach this
issue and express no opinion on the decision of [the court below]”); Flamer v. State, 953 A.2d 130, 134
(Del. 2008)(“The failure to cite any authority in support of a legal argument constitutes a waiver of the
issue on appeal.”)
Martin v. Unemployment Insurance Appeals Bd., 2004 WL 772073 (Del. Super. Feb 25, 2004)
Hughes’s termination, Mercantile is bound by that ruling. Consequently, this Court will
not, and can not, consider Ms. Hughes’s conduct in November, 2006.
Turning to the events of March, 2007, Mercantile focuses on two aspects of Ms.
Hughes’s behavior. First, it points to emails Ms. Hughes sent to two customers in which
she stated she wanted to talk confidentially to them. Second, Mercantile points to Ms.
Hughes’s conduct during a March 7 meeting.
With respect to the two emails, the Board concluded that Mercantile had a policy
prohibiting the use of the company’s email system for personal reasons and that Ms.
Hughes was aware of this policy. As would be expected, Mercantile agrees with these
findings. The Board further concluded, however, that Mercantile was obligated to warn
employees that violation of this policy could lead to termination. Because Mercantile did
not provide such a warning, the Board reasoned, Mercantile could not rely upon the
violations of that policy to justify its termination of Ms. Hughes. Although Mercantile
devoted much attention to the email episode in its brief, for some unknown reason it
chose to not even address U.I.A.B.’s ruling that Mercantile must show that Ms. Hughes
was made aware of the consequences of a violation of the policy. For the reasons stated
previously 28 this Court will not disturb that ruling because of Mercantile’s failure to
address it on appeal. Consequently, because there is no evidence in the record (and
Mercantile points to none) that Mercantile ever made Ms. Hughes aware prior to March,
2007 that she could lose her job if she made personal use of the email system, this Court
must leave stand the U.I.A.B.’s rejection of the personal email as a justification for Ms.
Notes 26, 27 and text accompanying.
Mercantile also points to Ms. Hughes’s behavior during a March 7 meeting Mr.
Coleman called to discuss the two emails. Mercantile claims Ms. Hughes initially denied
sending the emails and then became angry and raised her voice when confronted with
copies. She allegedly yelled she did not “have to listen to this.” Ms. Hughes stalked out
of the meeting but was retrieved by one of the participants. According to Mercantile, Ms.
Hughes walked in and out of the meeting on three occasions. Mercantile asserts that this
was “the final straw and led to her suspension and termination.” 29
Mercantile claims that Ms. Hughes’s behavior at the meeting constitutes
insubordination. The U.I.A.B. held that “insubordination” is the refusal to obey the order
of a supervisor. It concluded that there was no evidence that Ms. Hughes refused an order
of a superior and therefore was not insubordinate, as that term was defined by the Board.
On appeal Mercantile argues that the U.I.A.B’s definition of “insubordination” was
unduly narrow and that it should have expanded the definition to include “disrespectful
behavior towards management.” This argument is of no avail because it was never made
to the U.I.A.B. Having provided no assistance to the U.I.A.B. in defining
“insubordination,” Mercantile cannot be heard on appeal to argue that the U.I.A.B. was
II. Mercantile’s application
for remand or reversal
based upon newly discovered evidence
In its brief on appeal Mercantile seeks either a reversal or a remand for a new
hearing based upon evidence it discovered after the hearing before the I.A.B. Mercantile
claims to have found files on Ms. Hughes’s computer at work which slow that Ms.
Op. Br. 9
Hughes was using Mercantile time and facilities to perform printing services for her own
In essence Mercantile is asking this Court to award it a new hearing or,
alternatively, to remand the matter to the Board for consideration of its application for a
new hearing. In order to obtain a new trial on the basis of newly discovered evidence, the
moving party must show:
(1) The new evidence is of such a nature that it would have probably changed the
result if presented to the jury;
(2) The evidence was newly discovered; i.e., it must have been discovered since
trial, and the circumstances must be such as to indicate that it could not have
been discovered before trial with due diligence; and
(3) The evidence must not be merely cumulative or impeaching. 30
“It is well-settled that a moving party must satisfy all [of those elements] before a motion
for ‘newly discovered evidence’ will be granted.” 31 Mercantile cannot do so.
After Mercantile filed its brief, this Court requested Mercantile to describe the
circumstances under which the computer files were discovered and to explain why the
files could not be discovered earlier.32 Mercantile timely responded to the Court’s request
and provided a relatively detailed description of how the files were found. But, despite
the Court’s specific request, Mercantile provided no explanation why, with reasonable
diligence, it could now have timely discovered the computer files. 33 There is evidence,
therefore, upon which this Court could conclude that the ostensibly newly discovered
evidence could not have been discovered with due diligence prior to the U.I.A.B. hearing.
Mercantile’s application is therefore denied.
Hicks v. State, 913 A.2d 1189, 1193-4 (Del. 2006) (emphasis added)
Doochack v. Hobbs, 1994 WL 237597 *4 (Del. May 18, 994) (emphasis in original).
Docket Item 13.
Given that Mercantile was aware prior to March 7, 2007 that Ms. Hughes was apparently using her
computer for personal emails, it seems odd that it did not timely search her computer for other evidence of
misuse. Its failure to do so can hardly be said to amount to due diligence.
In a letter dated April 17, 2007 to the Department of Labor, Mr. Bye expressed his
frustrations over Ms. Hughes’s behavior and his inability to terminate her without
Mercantile having to pay unemployment benefits. Mr. Bye wrote:
I cannot believe in this day and age that anyone would condone such behavior.
The potential to do permanent and irreparable damage to my business is extreme.
If any of these customers were to be even slightly influenced by these statements
it would be devastating to every employee who works here. If that were to happen
the State would have 26 more unemployment claims to process. Additionally
granting unemployment benefits is not only condoning this type of behavior, it
makes a strong statement that anyone I employ can say anything or accuse me of
anything they want to. My rights as a businessman and a person then are no
In many respects the Court is sympathetic to Mr. Bye. But this Court is confined by the
record presented to it and by well-established principles of appellate procedure. That
record and the consequences of Mercantile’s decision to forego participation before the
U.I.A.B. require this Court to affirm the judgment of the U.I.A.B.. The judgment of the
U.I.A.B. is therefore AFFIRMED. Mercantile’s motion to remand for a new hearing on
the basis of newly discovered evidence is DENIED.
John A. Parkins, Jr.
Superior Court Judge
Reported Superior Court UIAB appeal cases in 2008:
Reversed and remanded
Reversed and remanded
Reversed and remanded
Reversed and remanded
Reversed and remanded