Neece v. Unemployement Insurance Appeal Board ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CONNIE NEECE, )
) C.A. No. K21A-05-001 RLG
Appellant, )
)
UNEMPLOYMENT INSURANCE )
APPEAL BOARD & LOWES, )
)
Appellees. )
Submitted: October 19, 2021
Decided: January 14, 2022
MEMORANDUM OPINION AND ORDER
Upon Appellant’s Appeal from a Decision of the Unemployment
Insurance Appeal Board – REVERSED and REMANDED.
Connie Neece, Pro Se Appellant.
Victoria Groff; Victoria W. Counihan, Esq.; Daniel Mulveny, Esq.; Department of
Justice, Wilmington, Delaware. Attorneys for Appellee Unemployment Insurance
Appeal Board.
GREEN-STREETT, J.
I. Introduction
This appeal stems from a decision of the Unemployment Insurance Appeal
Board (the “Board”) affirming the findings of a Department of Labor Claims Deputy
and an Appeals Referee that Appellant Connie Neece (the “Claimant”) voluntarily
left her employment with Lowes of Camden, Delaware (the “Employer” or
“Lowes”), and, therefore, was not entitled to unemployment benefits. For the reasons
set forth below, the Board’s decision is REVERSED and REMANDED.
II. Factual and Procedural History
Claimant worked as a seasonal cashier at Lowes. As a seasonal employee,
Claimant’s hours were subject to fluctuation based on the store’s sales.
Consequently, Claimant could be scheduled to work a range of ten to forty hours per
week. In November of 2020, Claimant resigned her position after learning that her
hours had been drastically altered.
Claimant contends that, on the day she resigned, Employer scheduled her to
work zero hours for the following two weeks. Employer disputes this claim.
Employer asserts that, although Claimant’s hours had been reduced, they were never
eliminated entirely.
Claimant filed a claim for unemployment benefits with the Delaware
Department of Labor Division of Unemployment Insurance on November 8, 2020.
A Claims Deputy denied the claim, finding that Claimant was disqualified from
2
receiving benefits because she voluntarily quit her job without good cause
attributable to her work. Claimant then filed an appeal of the Deputy’s decision. An
Appeals Referee held a hearing on February 16, 2021, and later affirmed the
Deputy’s decision. Claimant then appealed the Referee’s decision to the Board.
The Board held a telephonic hearing on April 7, 2021 (the “Hearing”). Rosa
Whalen (“Employer’s Representative”) attended on behalf of Employer. After
hearing testimony from both Claimant and Employer’s Representative, the Board
affirmed the Referee’s decision, finding that Claimant voluntarily quit because she
was “dissatisfied with the number of hours” she had been scheduled to work. 1 As a
result, the Board concluded that Claimant failed to show good cause for voluntarily
resigning from her position.
Claimant appealed to this Court, asserting, on a substantive level, that she
possessed the requisite good cause to terminate her employment with Lowes because
(1) Employer completely eliminated her hours; and (2) management was unable to
tell Claimant when she would be scheduled to work in the future. On a procedural
level, Claimant argued that (1) the Board rushed the Hearing; (2) she was unable to
question anyone during the Hearing; and (3) the witnesses who attended the Hearing
1
Record, “Notice of Board Decision,” at 7.
3
were not involved in the discussions she held with her managers on the day she
resigned from Lowes.
III. Standard of Review
When reviewing an appeal of a decision by the Board, the Superior Court’s
role “is limited to a determination of whether there was substantial evidence
sufficient to support the findings of the Board.”2 Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”3 Thus, “[t]he Superior Court does not independently weigh the
evidence, determine questions of credibility[,] or make its own factual findings.”4
Rather, the Court “merely determines if the evidence is legally adequate to support
the agency’s factual findings and whether errors of law exist.”5 The Court considers
the record in the light most favorable to the party that prevailed on the Board’s
appeal.6
2
Crews v. Sears Roebuck & Co., 2011 WL 2083880, at *2 (Del. Super. May 11, 2011) (internal quotation marks
omitted) (quoting Unemployment Ins. Appeals Bd. v. Duncan, 337 A.2d 308, 309 (Del. 1975)).
3
Lorah v. Home Helpers, Inc., 21 A.3d 596, 2011 WL 2112739, at *2 (Del. May 26, 2011) (TABLE) (citing
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)); see also Lively v. Dover
Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2003) (quoting Onley v. Cooch, 425 A.2d 610, 614
(Del. 1981) (defining “substantial evidence” as “more than a scintilla but less than a preponderance[.]”)).
4
Lorah, 2011 WL 2112739, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
5
Molinaro v. Unemployment Ins. Appeal Bd., 2004 WL 2828048, at *1 (Del. Super. May 14, 2004) (citing 19 Del.
C. § 3323).
6
Thompson v. Christiana Care Health Sys., 25 A.3d 778, 782 (Del. 2011).
4
IV. Discussion
Under 19 Del. C. § 3314(1), an individual does not qualify for unemployment
benefits when he or she leaves work “voluntarily without good cause attributable to
such work.”7 In this type of “voluntary quit” situation, the claimant bears the burden
of proving her entitlement to unemployment compensation.8 The Delaware Supreme
Court has found that “good cause” exists when (1) an employee voluntarily leaves
employment for reasons attributable to issues within the employer’s control and
under circumstances in which no reasonably prudent employee would have
remained; and (2) the employee first exhausts all reasonable alternatives to resolve
the issues before voluntarily terminating his or her employment.9
A. Good Cause
1. Claimant’s Voluntary Resignation
First, the Court will address Claimant’s substantive argument. Claimant contends
that, because Employer completely eliminated her working hours for two weeks, she
possessed the requisite “good cause” to leave her employment voluntarily. Good
cause is defined as “such cause as would justify one in voluntarily leaving the ranks
7
Morales v. Dollar Tree Stores, Inc., 2021 WL 3523927, at *2 (Del. Super. Aug. 9, 2021) (citing 19 Del. C. §
3314(1)).
8
White v. Security Link, 658 A.2d 619, 622 (Del. Super. 1994).
9
Thompson, 25 A.3d at 783.
5
of the employed and joining the ranks of the unemployed.”10 This Court has found
good cause when the claimant experienced “a substantial reduction in wages, work
hours[,] or a substantial deviation in the working conditions from the original
agreement of hire[.]”11 However, “unhappiness arising out of an unpleasant work
environment, without more, does not constitute good cause,” for purposes of 19 Del.
C. § 3314(1).12
Here, the Board determined that Claimant resigned because she was
dissatisfied with the reduction in her hours.13 This Court reached a similar conclusion
in Crews v. Sears Roebuck & Co.14 In Crews, the claimant was a part-time employee
who was guaranteed only three hours of work per week.15 When claimant’s work
schedule was reduced from forty hours to sixteen hours per week, she quit and filed
for unemployment benefits.16 The Court concluded that, given claimant’s guarantee
of only three hours per week, the reduction in claimant’s hours did not amount to a
O’Neal’s Bus Serv., Inc. v. Employment Sec. Comm’n, 269 A.2d 247, 249 (Del. Super. 1970) (citing Zielenski v.
10
Bd. of Review, 203 A.2d 635 (N.J. Super. Ct. App. Div. 1964)).
11
Molinaro, 2004 WL 2828048, at *1 (internal quotation marks omitted) (quoting Weathersby v. Unemployment
Ins. Appeal Bd., 1995 WL 465326, at *5 (Del. Super. June 29, 1995)).
12
Thompson, 25 A.3d at 784.
13
Id.; Delaware Courts have ruled that an employee’s dissatisfaction with a reduction in his or her working hours
does not constitute good cause for the purpose of unemployment benefit eligibility. See Molinaro, 2004 WL
2828048, at *2.
14
2011 WL 2083880, at *3.
15
Id. at *1-2.
16
See id. at *1.
6
“substantial deviation from the original employment agreement.”17 Because an
employee’s dissatisfaction with a reduction in his or her hours, without more, does
not constitute good cause, the Court concluded that claimant’s voluntary resignation
disqualified her from receiving unemployment benefits.18
Like the claimant in Crews, the Claimant in this case was not a full-time
employee with a guarantee of forty hours of work per week.19 Instead, Claimant was
hired as a “seasonal employee,” and was informed that she would be scheduled to
work “anywhere from 10 to 40 hours” per week.20 At the Hearing, Claimant admitted
that, during her new-hire orientation, she was made aware of the possibility of an
hours reduction given her seasonal employment status.21
However, this case is notably distinguishable from Crews. In that case, the
claimant’s hours were drastically reduced, but were never entirely eliminated.22
Further, the reduction in hours was consistent with the claimant’s employment
contract as a part-time employee, which guaranteed only three hours of work per
17
Id. at *3 (internal quotation marks omitted) (quoting Performance Shop v. Unemployment Ins. Appeal Bd., 1985
WL 188974, at *1 (Del. Super. Feb. 25, 1985)).
18
Id. at *3.
19
Record, “Transcript of Proceedings Before the Unemployment Insurance Board,” at 23:5-9.
20
Id. at 26:2-4.
21
Id. at 23:6-9.
22
Crews, 2011 WL 2083880, at *1.
7
week.23 In contrast, the Claimant in this case was hired with the understanding that,
as a seasonal employee, her hours could fluctuate.24 However, Claimant testified that
she was never informed, either by the managers who hired her or the managers that
conducted her new-hire orientation, that her hours could be completely eliminated.25
Rather, Claimant understood that she would be scheduled to work at least ten hours
per week.26 This understanding was confirmed by Employer’s Representative’s
testimony at the Hearing.27 Consequently, the evidence indicates that the total
elimination of Claimant’s working hours was not contemplated by her original
employment agreement.
Here, there is a factual dispute as to whether Claimant’s hours were merely
reduced or entirely eliminated. At the Board’s hearing, Employer’s Representative
testified that “[i]n no way was [Claimant] not provided any hours.”28 In contrast,
Claimant testified that, in October of 2020, she reviewed the schedule and realized
that she was not scheduled to work at all in the upcoming two weeks. 29
23
Id. at *3.
24
Record, “Transcript of Proceedings Before the Unemployment Insurance Board,” at 23:5-13.
25
Id. at 23:6-8.
26
Id. at 24:14-16.
27
Id. at 25:18-20 (“[S]easonal runs anywhere from 10 to 40 hours based on the needs of the store.”).
28
Id. at 26:4-6.
29
Record, “Transcript of Proceedings Before Kathleen D. Smith, Appeals Referee,” at 52:3-6.
8
As discussed above, this Court has ruled that a mere reduction in one’s hours,
without more, is insufficient to establish good cause to quit voluntarily.30 Thus, if
Claimant’s hours were merely reduced, as contemplated by her seasonal
employment agreement, she likely lacked good cause to terminate her employment
voluntarily.31 However, if Claimant’s hours were entirely eliminated – a condition
that was not contemplated as part of her original employment agreement – she likely
would satisfy the first prong of the good cause analysis.32 The resolution of this
factual dispute is crucial to the determination of Claimant’s unemployment benefit
eligibility.
After hearing the conflicting testimonies of Claimant and Employer’s
Representative, the Board concluded that Claimant left her job because she was
“dissatisfied with the number of hours” she had been scheduled to work.33 Yet, in
reaching this conclusion, the Board failed to resolve the factual dispute of whether
Claimant’s hours were reduced in accordance with her seasonal employment
contract or instead eliminated entirely. Although the Board’s decision acknowledges
that Claimant believed “she had good cause to resign after receiving zero hours of
30
Molinaro, 2004 WL 2828048, at *2 (finding no good cause when the employee, who was hired in a seasonal
position and with the understanding that hours would be given as available, quit after his working hours were
reduced).
31
Id.32
Weathersby, 1995 WL 465326, at *5.
33
Record, “Notice of Board Decision,” at 7.
9
work,” it does not explain why it chose to disregard this testimony in reaching its
decision.34 Further, Employer’s Representative testified that “[i]n no way was
[Claimant] not provided any hours,” and stated that she supplied documentation to
the Board that would substantiate this assertion.35 Despite the fact that Employer’s
Representative expressly referenced this document during her testimony at the
Hearing and “supplied” it to the Board,36 it was not referenced in the Board’s opinion
and was not included as part of the Record provided to this Court.
On October 14, 2021, this Court sent a letter to the Board, ordering it to
provide the documentation explicitly referenced by Employer’s Representative
within the Record.37 Believing that this document assisted the Board in reaching its
conclusion, the Court was concerned that the document’s absence from the Record
was perhaps an inadvertent oversight. However, in response to the Court’s Order to
produce this document, the Board revealed two pertinent points: (1) Employer’s
Representative provided this document to the Board and its legal representative prior
to the Hearing; and (2) the Board purposely did not include the documentation within
the Record because the Board did not “see a need” to admit the document into
34
Id.35
Record, “Transcript of Proceedings Before the Unemployment Insurance Board,” at 26:4-6.
36
Id.37
Specifically, the Court sought documentation referenced on pages 25-26 of the transcript from the April 7, 2021,
Hearing before the Board.
10
evidence or consider it within its decision.38 As discussed above, the factual
determination of whether or not Claimant’s hours were completely eliminated or
reduced in accordance with her seasonal employment contract is crucial to the
determination of Claimant’s benefit eligibility. Here, not only did the Board fail to
resolve this factual dispute in its opinion, but it also purposely omitted and refused
to consider documentation that would have undoubtedly provided relevant insight
about Claimant’s disputed work schedule.
“Although [this Court’s] standard of review of a decision by the Board is
deferential, it is not altogether without teeth.”39 Thus, although this Court may not
make its own factual determinations or weigh the credibility of witnesses, it cannot
defer to a decision by the Board that fails to reflect a rational consideration of the
evidence.40 As noted by this Court and the Delaware Supreme Court, “the Board
cannot simply ignore substantial and relevant evidence without an explanation.”41
The Record provided to the Court, and the Board’s opinion within it, fail to address,
without any form of explanation, the documentation submitted by the Employer’s
38
Letter from Victoria Groff to the Superior Court (Oct. 19, 2021).
39
Murphy & Landon P.A. v. Pernic, 121 A.3d 1215, 1217 (Del. 2015).
40
Id. at 1224.
41
Igo v. ACTS Ret. Life Communities, 2021 WL 37461, at *4 (Del. Super. Jan. 5, 2021) (citing Murphy & Landon
P.A., 121 A.3d at 1224).
11
Representative. In this case, the Court is alarmed by the Board’s apparent cherry-
picking of evidence to present in the Record on appeal.
It is outside of this Court’s authority to make its own factual determinations
necessary in evaluation of Claimant’s appeal.42 Rather, “the Court must base its
decision on appeal by examining the record below to determine whether substantial
evidence supports the Board’s findings.”43 In doing so, the Court “will not intrude
on [the Board's] role as trier of fact by disturbing the [Board's] credibility
determinations or factual findings.”44 However, the Board’s findings must be
supported by substantial evidence, which is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”45 Based on the Record
provided by the Board, it is difficult for this Court to ascertain whether Claimant’s
hours were entirely eliminated or instead reduced in accordance with her seasonal
employment agreement. Without these key pieces to the puzzle, the Court cannot
conclude that the Board’s determination was reasonably based on substantial
42
Sutton v. Unemployment Ins. Appeal Bd., 2010 WL 1367757, at *2 (Del. Super. Jan 15, 2010) (remanding when
the Board failed to make the necessary factual determinations regarding the timeliness of Claimant’s appeal).
43
Becker v. Unemployment Ins. Appeal Bd., 1994 WL 466236, at *2 (Del. Super. Aug. 15, 1994).
44
Toribio v. Peninsula United Methodist Homes, Inc., 2009 WL 153871, at *1 (Del. Super. Jan. 23, 2009) (citing
Connections Cmty. Support Programs, Inc. v. Bantum, 2001 WL 1628474, at *2 (Del. Super. Mar. 30, 2001)).
45
Thompkins v. Reynolds Transp., 2021 WL 99729, at *3 (Del. Super. Jan. 11, 2021) (internal quotation marks
omitted) (quoting Toribio, 2009 WL 153871, at *2).
12
evidence.46 Accordingly, the Board’s findings do not withstand appellate review and
must be addressed on remand.
2. Claimant’s Exhaustion of Available Remedies
The two-prong test for good cause is conjunctive.47 The second prong
addresses whether Claimant exhausted all available remedies before terminating her
employment.48 To satisfy this prong of the analysis, the claimant must have made “a
good faith effort to work with her employer and give the employer a reasonable
amount of time to address her concerns before terminating her employment.”49
Simply put, “the employee must at least notify the employer of the problem and
request a solution.”50 Although the claimant need not report the issue up the entire
“chain-of-command,” she must “bring the problem to someone with the authority to
make the necessary adjustments[.]”51
46
Cavallaro v. Securitas Sec., 2006 WL 2848106, at *3 (Del. Super. Sept. 28, 2006); see also Konstantopoulos v.
Unemployment Ins. Appeal Bd., 1991 WL 53452, at *1 (Del Super. Apr. 2, 1991) (remanding when the Board failed
to “make adequate findings of fact and conclusions of law as to several pivotal issues” in the case); Harper v.
Unemployment Ins. Appeal Bd., 293 A.2d 813, 816 (Del. Super. 1972) (remanding when the Board failed to make
factual determinations that were necessary to analyze claimant’s eligibility for unemployment benefits).
47
Thompson, 25 A.3d at 783.
48
Id. Because the Board concluded that Claimant did not possess the requisite good cause to voluntarily terminate
her employment, it did not address the test’s second prong in its opinion.
49
Morales, 2021 WL 3523927, at *2 (citing Thompson, 25 A.3d at 784).
50
Thompson, 25 A.3d at 784-85.
51
Dep’t of Justice v. Unemployment Ins. Appeal Bd., 2016 WL 3742158, at *4 (Del. Super. July 6, 2016) (quoting
Thompson, 25 A.3d at 783).
13
While this Court is unable to decide good cause without resolution of the
issues raised above, the Court finds that Claimant satisfies the second prong of the
test. The record reflects that Claimant exhausted the available remedies before
submitting her letter of resignation. Claimant brought the scheduling issue to the
attention of her manager, an individual “with the authority to make the necessary
adjustments.”52 This manager did not inform Claimant that she should bring the issue
to human resources or attempt to address it through an alternative administrative
avenue. Rather, the manager definitively told Claimant that the scheduling issue
would not be resolved.53 Soon after this discussion, two managers instructed
Claimant that she should submit a letter of resignation.54 Thus, after informing her
employer of a resolvable problem and making a good faith effort to resolve it,
Claimant was faced with two options: (1) continue her employment at Lowes, with
the understanding that she would not be scheduled to work and, therefore, would not
receive a paycheck; or (2) resign from her position and seek employment elsewhere.
Faced with these choices, Claimant resigned.
This Court finds that it was reasonable for this Claimant to believe, based on
her managers’ directive to submit a resignation letter, that the termination of her
52
Id.53
Record, “Transcript of Proceedings Before the Unemployment Insurance Board,” at 23:1-2.
54
Record, “Transcript of Proceedings Before Kathleen D. Smith, Appeals Referee,” at 53:20-22.
14
employment was Employer’s proposed solution to Claimant’s scheduling problem.
Accordingly, Claimant exhausted all reasonable alternatives in an attempt to resolve
the scheduling issue before voluntarily terminating her employment. Thus, Claimant
has satisfied the second prong of the good cause analysis.
B. Due Process
Claimant contends that the Board denied her due process during the Hearing.55
However, because the Court finds that the above-referenced factual issues must be
addressed by the Board on remand, it need not reach the issue of Claimant’s due
process claims.
V. Conclusion
The Board’s conclusions must be reviewed with great deference by this Court.
However, those conclusions must be free from legal error, be supported by
substantial evidence, and reflect a rational consideration of the record.56 Here, the
Record fails to provide insight into Claimant’s hours reduction or elimination. This
lack of clarity centers around a document that was referenced, but not included in
the Record. Moreover, although this document contained pertinent information, the
Board purposely disregarded it when rendering its opinion. The Board’s refusal to
55
Specifically, she contends that (1) the Board rushed the Hearing, which lasted only ten minutes; (2) during the
Hearing, Claimant was not given the opportunity to question the witnesses who testified on Employer’s behalf; and
(3) the witnesses who testified on behalf of Employer were inappropriate because they had not been present during
Claimant’s discussions with the managers regarding her reduction in working hours.
56
Thompkins, 2021 WL 99729, at *4.
15
consider this relevant evidence and include it within the Record constitutes legal
error.57 Perhaps once the Record is better developed, and the factual discrepancies
addressed, it will be evident whether there is substantial evidence to support the
conclusion that Claimant should be disqualified from receiving unemployment
benefits pursuant to 19 Del. C. § 3314.
Accordingly, the decision of the Board is REVERSED and REMANDED
for further proceedings consistent with this opinion.
IT IS SO ORDERED.
57
See Igo, 2021 WL 37461, at *4 (reversing when the Board ignored relevant information referenced during the
Claimant’s testimony and failed to address pertinent factual disputes in its opinion).
16