Former OV employee loses appeal

Date Published: 
August 26, 2016

A former Town of Ocean View employee recently lost an appeal to the Delaware Superior Court after the Unemployment Insurance Appeal Board found she was disqualified for unemployment benefits.

Melanie Breech, who served as the Town’s receptionist from October of 2003 to May of 2015, was deemed to have been terminated from her position with just cause following testing positive for marijuana, which was in violation of the Town’s Personnel Policy.

Within the policy, there are eight separate line items related to prohibited activities related to substance abuse. According to the Town Code, any employee who engages in those activities may be dismissed.

According to the five-page decision written by Judge Richard F. Stokes, Breech applied for unemployment benefits, alleging she was terminated without just cause.

However, in his Aug. 15 letter opinion, Stokes said that Breech argued, while at the time of her drug testing she was not a medical marijuana cardholder, she would have been “had the process of becoming a cardholder was faster.”

He also found that Breech was aware of the Town’s Personnel Policy, which addressed substance abuse, and that she “freely and voluntarily admitted to using marijuana.”

“At the time of her drug test, marijuana use was illegal,” wrote Stokes in his decision. “Accordingly, Ms. Breech’s violation of the Town’s policy constitutes just cause for her termination.”

Following her dismissal and initial appeal, a Claims Deputy had determined Breech was disqualified for benefits because she was dismissed from the Town for just cause on June 4, 2015. Breech went on to file an appeal to the Appeals Referee, and a hearing was scheduled.

According to court documents, Ocean View Town Manager Dianne Vogel and Breech’s supervisor, Public Works Director Charles McMullen, testified at the hearing. Breech, who was present, did not testify.

The Appeals Referee had reversed the decision of the Claims Deputy, stating Breech was discharged without just cause. The Town appealed the decision of the Appeals Referee to the Unemployment Appeal Board, who then reversed that decision.

Breech went on to file an appeal in Superior Court on Dec. 7, 2015.

In his decision, Stokes added that Breech’s argument that with a speedier medical marijuana card process “her marijuana use would have been legal is without merit.”

Although the Delaware Medical Marijuana Act came into law in May 2011, Gov. Jack Markell did not sign legislation to decriminalize the possession and private use of up to an ounce of marijuana until June 18, 2015. The law did not take effect until December of that year, about six months after Breech had been terminated from the Town’s employ.

“The alleged delay in receiving the medical marijuana card has no bearing on the situation,” wrote Stokes.