Opinion
C.A. No. 05A-11-009 WCC.
Submitted: June 6, 2006.
Decided: September 28, 2006.
Appeal from Unemployment Insurance Appeal Board. REMANDED.
Joseph L. Cavallaro; 608 Corbit Drive; Middletown, DE 19709. Pro Se Appellant. Unemployment Insurance Appeal Board, 4425 N. Market Street; Wilmington, Delaware 19802. Appellee.
Securitas Security; P.O. Box 429503; Cincinnati, OH 45242. Appellee.
MEMORANDUM OPINION
Introduction
Before this Court is Joseph Cavallaro's appeal from the Department of Labor, Division of Unemployment Insurance Appeal Board's ("Board") decision, in which it found that Mr. Cavallaro was terminated by Securitas Security ("Securitas") for just cause. Upon review of the record in this matter, and pursuant to 29 Del. C. § 10142(c), this Court hereby remands this case to the Board for the reasons set forth below.
29 Del. C. § 10142(c) states, "The appeal shall be on the record without a trial de novo. If the Court determines that the record is insufficient for its review, it shall remand the case to the agency for further proceedings on the record."
Facts
Mr. Cavallaro was employed by Securitas as a security officer from September 2002 to March 2005. He worked on assignment at Premcor until the contract between Securitas and Premcor was terminated on March 15, 2005. As a result, on March 17, 2005, Mr. Cavallaro met with his operations manager, Samuel Johnson, regarding possible alternative assignments.
Securitas and Mr. Cavallaro have differing accounts of what occurred next. According to Mr. Cavallaro, he initiated the meeting with Mr. Johnson to determine if any other assignments were available, and he was told there was nothing. Then, according to Mr. Cavallaro, he told Mr. Johnson of his vacation plans so that Mr. Johnson could advise any newly assigned site of his upcoming absence. Mr. Cavallaro believes Securitas did not have alternative assignments available at the time of the meeting, and since he was not contacted thereafter, he filed for unemployment benefits and went on vacation. However, Mr. Johnson disputes this account. According to Mr. Johnson, there was alternative work available to Mr. Cavallaro, but Mr. Cavallaro did not wish to work a new assignment until after his vacation in April.
As a result, on March 29, 2005, Mr. Cavallaro filed a claim with the Delaware Department of Labor, Division of Unemployment Insurance ("DOL"), and on April 11, 2005, the DOL claims deputy determined Mr. Cavallaro was eligible for unemployment benefits ("DOL Determination"). Securitas filed an appeal of the DOL Determination, and on May 23, 2005, a hearing was held before the Appeals Referee for the DOL, where both Mr. Cavallaro and Mr. Johnson testified under oath. The Appeals Referee determined, based on the testimony, that there was available work for Mr. Cavallaro with Securitas, and that he "voluntarily quit his job for personal reasons due to his vacation plans." Based on this, the Appeals Referee reversed and modified the DOL Determination and deemed Mr. Cavallaro disqualified from receiving unemployment benefits.
On August 8, 2005, Mr. Cavallaro filed an appeal of the Appeals Referee's decision, and a hearing before the Board was held. Again, both Mr. Cavallaro and Mr. Johnson testified. The Board affirmed the Appeals Referee decision and denied unemployment benefits for Mr. Cavallaro. As a result, on November 18, 2005, Mr. Cavallaro filed this appeal currently before this Court.
On February 6, 2006, a briefing schedule for this appeal was issued by this Court, and on February 17, 2006 Mr. Cavallaro filed his opening brief. On April 10, 2006, a Final Delinquent Brief Notice was sent to Securitas indicating that the Appellee must file its responding brief within ten days. To date, Securitas has not filed a brief in this appeal. On May 12, 2006, this Court issued an order pursuant to Super. Ct. Civ. R. 107(e), indicating the Court would make a determination of the issues on the papers currently before it. This is the Court's decision based on the record.
Super. Ct. Civ. R. 107(e) states, in pertinent part:
(e) Failure or neglect to file briefs or discovery material. If any brief, memorandum, deposition, affidavit, or any other paper which is or should be a part of a case pending in this Court, is not served and filed within the time and in the manner required by these Rules or in accordance with any order of the Court or stipulation of counsel, the Court may, in its discretion, dismiss the proceeding if the plaintiff is in default, consider the motion as abandoned, or summarily deny or grant the motion, such as the situation may present itself, or take such other action as it deems necessary to expedite the disposition of the case. . . .
Standard of Review
This Court's role regarding an appeal from the Board is limited to an evaluation of the record, in the light most favorable to the prevailing party, to determine if the record before the Board included substantial evidence that a reasonable mind could accept as adequate support for the conclusion, and that it is free from legal error. "[S]ubstantial evidence is that evidence from which an agency fairly and reasonably could reach the conclusion it did. It is more than a scintilla but less than a preponderance."
Gen. Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960) ("The position of the Superior Court . . . on appeal is to determine only whether or not there was substantial evidence to support the findings of the Board. If there was, these findings must be affirmed."); Fed. Street Fin. Serv. v. Davies, 2000 Del. Super. Ct. LEXIS 286, at *6 ("In reviewing the decisions of the UIAB, this Court must determine whether the findings and conclusions of the UIAB are free from legal error and supported by substantial evidence in the record."). See also Michael A. Sinclair, Inc. v. Riley, 2004 WL 1731140 (Del.Super.Ct.), at *2; Majaya v. Sojourners, Place, 2003 WL 21350542 (Del.Super.Ct.), at *4.
Reeves v. Conmac Sec., 2006 WL 496136 (Del.Super.Ct.), at *3 (internal citations omitted).
Further, this Court will give deference to the Board's decision because of the Board's experience and specialized confidence. Since the Board is the fact-finder, it is the Board's duty to resolve any conflicting testimony and evidence presented and decide which is more credible. Thus, this Court accepts the findings of credibility and weight of the evidence of the Board, including the Appeals Referee's conclusions if the Board adopts its findings. Accordingly, if the record supports the Board's findings, the Court should accept those findings even if the Court might reach a different conclusion upon review of the facts presented.
Id.
Id., citing Mettler v. Bd. of Adjustment, 1991 WL 190488, at *2 (Del.Super.Ct.).
Johnson v. Chrysler Corp, 213 A.2d 64, 66-7 (Del. 1965); see also Michael A. Sinclair, Inc., 2004 WL 1731140, at *2. (citing Unemploy. Ins. Appeal Bd. v. Div. of Unemploy. Ins., 803 A.2d 931, 937 (Del. 2002) ("Questions of credibility are exclusively within the province of the Board which heard the evidence. As an appellate court, it [is] not within the province of the Superior Court to weigh the evidence, determine questions of credibility or make its own factual findings.")); Majaya, 2003 WL 21350542, at *4.
H H Poultry Co., Inc. v. Whaley, 408 A.2d 289, 291 (Del. 1979).
Discussion
In the case sub judice, the Court has not found substantial evidence to support the Board's conclusion. Specifically, based upon the record before the Appeals Referee and the limited testimony presented to the Board, it is difficult to ascertain the employment opportunities that were available to Mr. Cavallaro once the contract with Premcor was terminated on March 15, 2005. Mr. Johnson testified on behalf of Securitas before the Appeals Referee as follows:
REFEREE: Okay and tell me what happened? Why isn't he working there now?
JOHNSON: Well the job ended at Premcor (sic), which is where he was working. Mr. Cavallaro came in and sat down with me and we discussed a couple of issues. He did not want to work at that time for the simple fact that he had made a two week trip, he had a two week trip planned in April and would like to wait until after the trip to return to work.
REFEREE: Is that it?
JOHNSON: That was it.
REFEREE: So on that day that you met with him he told you he could not work or what were his exact words to you?
JOHNSON: I don't know the exact words. I do know that what we had discussed as I sat him at a table. I sat down face to face with him on the 17th of March and we discussed some openings that I may have. Mr. Cavallaro wanted to wait until after he had gone to I think it was Denver that he had planned to go to in April.
REFEREE: And what did you say when he asked you that?
JOHNSON: I had no problem. I told him that would be no problem.
R. at 18-19.
(emphasis added). It is this statement that the Appeals Referee, and subsequently the Board, appear to rely upon to conclude that continued employment was offered to and rejected by Mr. Cavallaro. However, Mr. Johnson's statement "we discussed some openings that I may have" does not establish clearly whether Securitas had work available to Mr. Cavallaro on March 17, 2005. This Court has found nothing further in the record to support the Board's decision.
If an employee voluntarily quits his job, he bears the burden of showing good cause for leaving, and he further bears the burden of showing other avenues of remedy were first exhausted prior to quitting. But, for the Board to get to this step in this case, it must first determine if and when work was made available to Mr. Cavallaro, and whether he accepted or rejected an available assignment. If Mr. Cavallaro was offered an assignment on March 17, 2005 and rejected it, only then should the Board analyze whether Mr. Cavallaro voluntarily quit his job with Securitas. But, there must first be evidence that work was available.
Walls v. New England Fellowship, 1995 WL 109040 (Del.Super.Ct.), at *2. (Good cause is defined as that which would "justify one in voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.").
Id. ("Before leaving for good cause, the employee must show that she has pursued administrative remedies first.") (citing O'Neal's Bus Serv. Employ. Sec. Comm'n, 269 A.2d 247, 249 (Del.Super.Ct. 1970)).
For instance, if work was immediately available on March 17, 2005 and Mr. Cavallaro refused to accept the position due to his vacation plans, that would entirely preclude Mr. Cavallaro from receipt of unemployment benefits. Alternatively, if it is established that work first became available to Mr. Cavallaro on April 1, 2005, than Mr. Cavallaro is entitled to benefits up to that date due to the unavailability of work.
Based on the record established below, even if the facts are viewed in the light most favorable to the Appellee, this Court is unable to ascertain if and when work was available to Mr. Cavallaro. Without these key pieces to the puzzle, this Court cannot conclude that the Board's determination that Mr. Cavallaro rejected work offered by Securitas was reasonably based on substantial evidence. As such, the Court believes it has no alternative other than to remand this matter to the Board to conduct an additional hearing regarding this issue. Specifically, the Board should determine whether work was available to Mr. Cavallaro, and if so, on what date; whether Mr. Cavallaro was made aware of the assignment; whether Mr. Cavallaro accepted or rejected an available assignment; and any additional information they deemed necessary to make these determinations. Once these facts are developed, it will be clear whether Mr. Cavallaro is disqualified from receiving unemployment benefits pursuant to 19 Del. C. § 3314.
If available, the Court suggests that Securitas provides the Board with documentation of what jobs or assignments were available to Mr. Cavallaro after the Premcor contract was terminated; what date the job became available; and how this information was communicated to the Appellant. This would provide the Board a firm foundation should it determine Securitas had work available to Mr. Cavallaro, and that Mr. Cavallaro rejected the work without good cause.
Conclusion
For the foregoing reasons, this Court hereby remands this case to the Board.
IT IS SO ORDERED.