On August 1, 2023, the Delaware Unemployment Insurance Appeal Board disqualified Claimant Bishop from receipt of unemployment benefits because she was terminated by her employer, Delmar Nursing & Rehab Center, for just cause.
Employer’s justification for Claimant’s termination was that the Claimant misrepresented hours worked on a July 2, 2022 timecard. Employer’s policy is that timecard misrepresentations are subject to termination. The Claimant argued that she worked from home on July 2, 2022.
Employer submitted evidence showing that the Claimant arrived at the premises of the Employer on July 2, 2022, clocked in, and then left the premises. The Claimant returned later that day to clock out. The Claimant’s timeclock activities were captured by video surveillance. The record reflects that the Claimant also signed her time sheet to verify that she worked on July 2, 2022.
Employer also offered forensic evidence from the Claimant’s work computer obtained by an expert witness that showed that the Claimant’s “work issued laptop computer was in ‘sleep mode’ from July 1, 2022, until July 3, 2022.”
The Board concluded that Claimant did not work on July 2, 2022 and that the Claimant’s misrepresented time card was enough for Employer to terminate the Claimant with just cause.
The Claimant appealed the Board’s decision to the Delaware Superior Court which has the power to review Board decisions to make sure that they are free of legal error, are of sound discretion, and are supported by substantial evidence.
On appeal, the Claimant argued that the Employer’s expert witness evidence was “after acquired evidence” and therefore excludable. The Claimant also argued that Employer’s expert witness testimony was in violation of the Delaware Rules of Evidence. The Claimant also argued that the “Board’s findings were the result of fraud or deceit committed by the employer and its counsel” The Claimant’s third claim as to fraud or deceit chargeable to the Employer was disposed of by the Superior Court prior to the Court’s written decision.
As to the Claimant’s argument concerning the Employer’s expert witness testimony, the Court held that Employer’s expert testimony “bolstered and corroborated Employer’s already existing basis for terminating Claimant.” Such evidence was not acquired after the termination to prove some set of facts that could independently be a basis for termination.
The Court also found that Employer’s expert had a sufficient basis for his opinion concerning the Claimant’s work computer and that the chain of custody for the work computer was maintained.
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Kimberly Bishop v. Delmar Nursing & Rehab Center and UIAB C.A. No.: S23A-08-002 MHC (Del. Super. Ct. April 8, 2024)
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