Kelly v. Felton Automotive Group ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHAKIMA KELLY, )
)
Appellant )
)
v. ) C.A. No. K22A-11-003 SKR
)
FELTON AUTOMOTIVE GROUP & )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
)
Appellees. )
ORDER
Submitted: April 4, 2023
Decided: June 27, 2023
Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment
Insurance Appeal Board, AFFIRMED.
Shakima Kelly, Appellant, pro se.
Tasha M. Stevens-Gueh, Esquire, Andrew & Stevens-Gueh, LLC, 115 S. Bedford
Street, Georgetown, DE 19947, Attorney for Appellee Felton Automotive Group.
Victoria Groff, Esquire, Deputy Attorney General, Department of Justice, 820 N.
French Street, Wilmington, DE 19801, Attorney for Appellee, Unemployment Insurance
Appeal Board.
Victoria Counihan, Esquire, Deputy Attorney General, Department of Justice, 820 N.
French Street, Wilmington, DE 19801, Attorney for the Delaware Division of
Unemployment Insurance, a statutory party-in-interest.
RENNIE, J.
I. INTRODUCTION
Claimant-Appellant Shakima Kelly (“Claimant”) appeals a decision of the
Unemployment Insurance Appeal Board (the “Board”), which found that Claimant
is not eligible to receive unemployment benefits, effective from the week ending
May 23, 2022. Upon consideration of the arguments, submissions of the parties, and
the record in this case, the Board’s decision is upheld.
II. FACTUAL AND PROCEDURAL HISTORY
1. Claimant was employed by Felton Automotive Group, LLC
(“Employer”) from May 2020.1 On May 9, 2022, Claimant informed Employer that
she needed to take FMLA (Family and Medical Leave Act) stress leave.2 On May
12, 2022, Claimant felt sick at work and was admitted to the hospital.3 That same
day, Employer sent an email to Claimant, which included FMLA documents and
information about short-term disability.4
2. Although Claimant was released to return to work on May 16, 2022,5
Claimant did not return to work.6 Instead, on May 22, 2022, Claimant applied for
unemployment insurance benefits.7 The next day, she left a voicemail indicating
1
R. 82.
2
R. 85.
3
R. 86.
4
R. 87.
5
R. 84. Claimant testified during the hearing before the Appeals Referee that she was released
from the hospital and was told that she could return to work on May 16, 2022. Id.6
R. 87.
7
R. 180.
2
that she would come to the Employer’s parking lot to retrieve her FMLA paperwork
from the receptionist. 8 In response to the voicemail, Cindy Landis, Employer’s
Comptroller, called Claimant.9 It is disputed whether Claimant was fired during the
phone conversation. Claimant claims that she was fired, while Employer claims that
the conversation was strictly related to the FMLA paperwork. 10 Regardless,
Claimant submitted the FMLA documents following the phone conversation. 11
Thereafter, Landis sent an email to Claimant—approving Claimant’s FMLA request
from May 23, 2022 to August 15, 2022—to which Claimant did not respond. 12
Employer also sent its FMLA approval by priority mail, which Claimant received
on June 4, 2022.13 Claimant started to work for another employer in the second
week of June 2022.14
3. On June 10, 2022, after reviewing Claimant’s application for
unemployment benefits, the Claims Deputy found that she was ineligible for the
benefits. Claimant then appealed. The Appeals Referee reversed the decision and
found that the Claimant was eligible for the benefits. Employer, thereafter, appealed
the Referee’s decision to the Board.
8
R. 95.
9
R. 95–96.
10
Compare Claimant’s Opening Br., at 3–4, and R. 97–98, with Employer’s Answering Br., at 3.
11
R. 117, 164.
12
R. 170.
13
R. 120, 171.
14
R. 44.
3
4. After hearing arguments from both parties, the Board, on October 18,
2022, reversed the Referee’s decision and found that Claimant was ineligible to
receive unemployment benefits. 15 The Board specifically found that, although
Claimant was unemployed as defined under 19 Del. C. § 3302(17), Claimant was
not qualified for the receipt of unemployment benefits. The Board explained that
Claimant’s unemployment was caused by her inability to work due to medical
reasons, and thus she is disqualified under the parameters of 19 Del. C.§ 3314(8).16
5. On November 4, 2022, Claimant timely appealed the Board’s decision
to this Court. On February 3, 2023, Claimant filed her opening brief. On February
27, 2023, Employer filed its answering brief. On March 9, 2023, Claimant filed her
reply brief.
III. PARTIES’ CONTENTIONS
6. Claimant argues that she was terminated and, thus, not employed during
the week ending May 23, 2022.17 Claimant further contends that her termination
preceded her FMLA approval, and hence, the Board erred when it took FMLA into
consideration in determining that she was disqualified from unemployment
benefits. 18 Further, she contends that, even if the Board is correct that she was
15
R. 13–14.
16
Id.17
Claimant’s Opening Br., at 3–4.
18
Id. at 3–6.
4
disqualified from unemployment benefits due to her inability to work, the
disqualification ended once she became “able and willing” to work, as she construes
19 Del. C. § 3314(8).19
7. Employer agrees that Claimant was statutorily unemployed during the
week ending May 23, 2022. 20 Employer, however, posits that Claimant is still
disqualified from receiving the benefits under 19 Del. C. § 3314(8), because her
unemployment resulted from her medical inability to work and, she failed to present
evidence from a doctor showing that she was able to resume work without any
restrictions.21
IV. STANDARD OF REVIEW
8. On appeal from the Board, this Court’s role is limited to determining
whether substantial evidence exists to support the Board’s decision and to examine
the Board’s findings and conclusions for legal error. 22 “Substantial evidence” is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”23 “It is not the appellate court’s role to weigh the evidence, determine
19
Id.
20
Employer’s Answering Br., at 7.
21
Id. at 8–9.
22
Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265 (Del. 1981); 19 Del. C. § 3323(a) (“In
any judicial proceeding under this section, the findings of the Unemployment Insurance Appeal
Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive,
and the jurisdiction of the Court shall be confined to questions of law.”).
23
Dean v. Perdue Farms, Inc., 2014 WL 1228647, at *1 (Del. Super. Mar. 25, 2014) (quotation
omitted).
5
credibility questions or make its own factual findings, but merely to decide if the
evidence is legally adequate to support the agency’s factual findings.”24
V. DISCUSSION
9. Under 19 Del. C. § 3302(17), a claimant may be considered
unemployed if she performs no services for which wages are payable or if she works
less than normal full-time hours.25 Applying § 3302(17), the Board correctly found
that Claimant was not employed during the week ending May 23, 2022, because she
failed to perform any services for Employer.26
10. Moreover, pursuant to 19 Del. C. § 3314(8), 27 an individual is
disqualified from receiving unemployment benefits when the unemployment is
because of her inability to work. 28 “An employee is considered unable to work
within the meaning of the statute when [she] is restricted from performing [her]
24
McManus v. Christina Serv. Co., 1997 WL 127953, at *1 (Del. Super. Jan. 31, 1997).
25
“Unemployment” exists and an individual is “unemployed” in any week during which the
individual performs no services and with respect to which no wages are payable to the individual,
or in any week of less than full-time work if the wages payable to the individual with respect to
such week are less than the individual’s weekly benefit amount plus whichever is the greater of
$10 or 50% of the individual’s weekly benefit amount. 19 Del. C. § 3302(17); see also Husband
v. Env't Design, LLC, 2012 WL 1413595, at *3 (Del. Super. Feb. 3, 2012) (finding that 19 Del. C.
§ 3302(17) provides that “an employee may be eligible for unemployment benefits when he is
working fewer hours than he normally works.”).
26
R. 13.
27
19 Del. C. § 3314(8) (“If it shall be determined by the Department that total or partial
unemployment is due to the individual's inability to work. Such disqualification to terminate when
the individual becomes able to work and available for work as determined by a doctor's certificate
and meets all other requirements under this title.”).
28
Dean v. Perdue Farms, Inc., 2014 WL 1228647, at *2 (Del. Super. Mar. 25, 2014).
6
normal job duties by [her] doctor due to a physical condition.”29 “[T]o be considered
as ‘able and available for work,’ Claimant must present documentation or testimony
from her doctor indicating that she is released to go back to work without
restriction.”30 Claimant’s failure to provide any such documentation or testimony
from a doctor precludes her ability to prevail on this appeal.
11. The Board correctly found that Claimant was disqualified from
receiving unemployment benefits at the time of her application, because she was
restricted from performing her job duties due to her medical condition. This was
evidenced by her request for FMLA.31 Claimant did not present any evidence from
her doctor to the Board that she was able and available to work. Accordingly, the
Court finds that the Board’s decision is supported by substantial evidence and is free
from legal errors.
IT IS SO ORDERED that the Board’s Decision is AFFIRMED.
_____________________
Sheldon K. Rennie, Judge
29
Brown v. Unemployment Ins. Appeal Bd., 2011 WL 863310, at *2 (Del. Super. Feb. 3, 2011).
30
See Jackson–Mills v. Carter Racing Stables, 2012 WL 3025860, at *2 (Del. Super. July 25,
2012) (emphasis in original).
31
Neither the Board nor the Court considers FMLA as evidence of employment. Rather, the Board
considered Claimant’s FMLA request as evidence of her medical condition, and the Court agrees.
See R. 13–14.
7