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explaining that because the employer did not comply with the briefing schedule, reversal was appropriate regardless of the ultimate merits
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C.A. No. N10A-08-011 RRC.
Submitted: March 7, 2011.
Decided: May 11, 2011.
On Appeal from a Decision of the Unemployment Insurance Appeal Board.
REVERSED and REMANDED.Sylvia M. Crews, Wilmington, Delaware, Appellant.
Sears Roebuck Co. c/o TALX UC Express, Saint Louis, Missouri.
Dear Ms. Crews and Sears, Roebuck Co.:
INTRODUCTION
Appellant Sylvia M. Crews ("Employee") filed Notice of Appeal from the August 13, 2010 decision of the Unemployment Insurance Appeal Board (the "Board") holding that Employee voluntarily quit her employment without just cause.
This decision arose from Employee's appeal from the Delaware Department of Labor Appeals Referee's decision of March 10, 2010 affirming the Claims Deputy's determination that Employee did not establish by a preponderance of the evidence that she quit her employment for good cause. Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Joseph P. Kania, Appeal Docket No. 10126709 (Aug. 13, 2010).
Although the Division of Unemployment Insurance Appeals received a copy of this Court's briefing schedule for the instant appeal, by letter of March 7, 2011, the Department of Justice indicated that it would not be filing an Answering Brief on behalf of the Division of Unemployment Insurance because it is Employer's obligation to defend the Board's decision. However, Employer has inexplicably failed to file an Answering Brief, despite this Court's issuance of a "Final Delinquent Brief Notice" on April 6, 2011. Further, Employer failed to appear before the Board to defend Employee's appeal, despite being duly served with notice of the time and place for the hearing. Accordingly, notwithstanding the legal deficiency of Employee's position, this Court will reverse the determination of the Board due to Employer's failure to respond, in violation of Superior Court Civil Rule 107.
Transcript of Administrative Hearing of June 16, 2010 at 10.
FACTS AND PROCEDURAL HISTORY
This case arises from Employee's November 20, 2009 resignation from employment with Employer. Employee had been employed with Employer since November 6, 1998; at the time of her resignation, she was employed as a merchandise and customer assistant earning $10.56 per hour. Employee had become a part-time Employee as of 2003, but she regularly worked between thirty to forty hours per week until 2008, when her hours decreased to approximately twenty to twenty-five per week; Employee's hours apparently did not return to their pre-2008 levels.
Division of Unemployment Appeals Referee's Decision at 2.
Id.
Id.
At the hearing before the Unemployment Insurance Appeals Board (the "Board"), Employee testified that she left her employment in approximately 2002 due to the illnesses and deaths of her brother and sister, but was re-hired as a part-time employee in 2003. She stated that, prior to her leaving in 2002 she worked between thirty-five and fifty hours. Employee testified that, in 2008, she was transferred to work on another floor, and her hours decreased to, on average, 16 per week. However, Employee denied that this reduction in weekly working hours was the cause of her resignation; rather, she testified that she resigned because "the job had no fairness about it, but I continued to work." Employee's testimony before the Appeals Referee provided more insight into her reasons for resigning; she stated:
Transcript of Administrative Hearing of June 16, 2010 at 5. Employee testified that her re-hire in 2003 was part-time "for the time being," and that she continued to work full time hours for nearly six years. Id.
Id.
Id. at 5-6. Employee indicated that, during some weeks, she might have been assigned as few as 10 hours or as many as 23 hours. Id. at 6.
Id. Employee further testified that she "worked very hard in Sears" and that "at this stage of [her] life and at this time there's no way that [she] would just leave [her] job for something trivial." Id. at 9.
I felt that at some point, believe me I was being overworked. And there were times when I did work. I wasn't given the accolades that I should have been given. They were given to other people as well as the hours they were given. And it had nothing to do with personal reasons. It had nothing to do with-I had no cause to leave. You don't leave a job because of personal reasons. I didn't do that. And there was unfairness coming from my supervisor which is sitting over there.
Transcript of Administrative Hearing of Mar. 2, 2010 at 6.
Ultimately, however, Employee's reason for resigning appears to be the number of hours she was given; when asked what was the "straw that broke the camel's back," she responded that it "had to do with the hours and being shift[ed] around the department."
Id. at 6; see also id. at 7 ("[T]he hours had decreased for me until 2008 when I got five hours. That was when I was in one department after being up there for five and a half hours there were no hours for me, but there were hours for other people. And I had been a good worker and I worked long and hard."). Employee's supervisor, Lois Hazzard, also testified at this administrative hearing; she stated that Employee did request more weekly hours, and that she tried to accommodate Employee, but that she "had to take care of [her] full timers first." Id. at 12.
The Appeals Referee determined that Employee voluntarily quit without good cause. The Appeals Referee noted that, while Employee may have averaged thirty to forty hours per week "when the economy was better," as a part-time employee, she was only guaranteed a minimum of three hours per week; Employer was not obliged to provide Employee with her former number of hours.
Division of Unemployment Appeals Referee's Decision at 3.
Id.
The Board affirmed the Appeals Referee's decision. The Board noted that, in the context of unemployment benefits, "good cause" has been narrowly defined and that a reduction of hours can only constitute "good cause" for voluntarily terminating employment if the employee's hours are reduced below a guaranteed minimum established at the time of hire. In this case, Employee was guaranteed only three hours per week, and nothing in the record suggested that she was ever given less than three hours per week. In short, the Board held that, "[w]hile [Employee] may have calculated that her current income was not sufficient to meet her needs or that potential alternative employment would be economically advantageous, that calculation resulted in a personal choice, over which Employer had no direct control . . . in such cases, the Board can offer no relief."
Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Joseph P. Kania, Appeal Docket No. 10126709 (Aug. 13, 2010) at 2.
Id.
Id.
On appeal to this Court, Employee filed a brief alleging unfair treatment and, apparently, age discrimination. Notwithstanding Employee's various complaints, however, the crux of Employee's contentions is that she had "good cause" to resign based on the reduction to her working hours.
See Employee's Br. of Feb. 16, 2011 at 1 ("I was overlooked for promotions and given less hours[.] [T]hey wanted younger women in management.").
See, e.g., id. ("Due to unfair treatment n the job by my supervisor Lois Hazzard, I had filed a claim with SAC for unfair practices and job discrimination . . . I was told by Sears all problems had been solved. The problems were not solved.").
Id.
STANDARD OF REVIEW
This Court's review of an Unemployment Insurance Appeal Board decision is defined by statute. Pursuant to 19 Del. C. § 3323(a), "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." The scope of this Court's review "is limited to a determination of whether there was substantial evidence sufficient to support the findings" of the Board; substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consequently, this Court will not disturb the Board's determination absent an abuse of the Board's discretion. An abuse of discretion will be found only if "the Board `acts arbitrarily or capriciously' or `exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice.'"Pursuant to 19 Del. C. § 3314(1), an employee who voluntarily resigns is disqualified from receiving unemployment compensation benefits unless he or she can establish "good cause" for the resignation. The determination of whether the facts underlying Employee's voluntary resignation constitute "good cause" is a question of law. Employee bears the burden to establish that she resigned her employment for "good cause;" the standard for good cause is "such cause as would justify one in voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Moreover, "good cause" for an employee's voluntary resignation "must be for reasons connected with the employment." Although a "substantial reduction" in work hours may constitute sufficient "good cause," such a reduction must be from the number of hours specified in the original agreement of hire. Put differently, the reduction in work hours must be a "substantial deviation from the original employment agreement."
"An individual shall be disqualified for benefits: For the week in which the individual left work voluntarily without good cause attributable to such work and for each week thereafter until the individual has been employed in each of 4 subsequent weeks (whether or not consecutive) and has earned wages in covered employment equal to not less than 4 times the weekly benefit amount."
Dept. of Labor v. Unemployment Ins. Appeal Bd., 297 A.2d 412, 414 (Del. Super. Ct. 1972) ("The specific question raised by this appeal, i.e. whether the undisputed factual situation amounted to a discharge with just cause or a voluntary quitting of the job without good cause, is a question of law subject to review.").
O'Neal's Bus Serv., Inc. v. Employment Sec. Comm'n., 269 A.2d 247, 249 (Del. Super. Ct. 1970).
White v. Security Link, 658 A.2d 619, 622 (Del. Super. Ct. 1994) (citations omitted).
See Molinaro v. Unemployment Ins. Appeal Bd., 2004 WL 2828048, *1 (Del. Super. Ct. 2004) (affirming the Board's decision that a reduction in the employee's working hours did not establish "good cause" given that the employee was hired with the understanding that the employer's business was seasonal and that he would not be guaranteed a fixed number of hours each week). But cf. White v. Security Link, 658 A.2d 619 (holding, in a case of first impression for this Court, that the employer's insistence that the employee change the work scheduled established at her time of hire, on less than seventy-two hours notice, constituted sufficient "good cause" given that the schedule change was irreconcilable with the employee's child care obligations).
Performance Shop v. Unemployment Ins. Appeal Board, 1985 WL 188974, *1 (Del. Super. Ct. 1985).
DISCUSSION
Ordinarily, the resolution of this appeal would turn on a discrete issue of law. While there may have been some factual dispute with respect to Employee's treatment by Employer, the operative fact is undisputed, viz., that Employee voluntarily resigned her position. Although Employee testified to the Board that she "disagree[d] with everything about [the Appeal's Referee's] decision," and, specifically, the Appeal's Referee's determination that she voluntarily resigned due to personal reasons, Employee's testimony to the Appeals Referee makes clear that the "straw that broke the camel's back" was the reduction in her working hours, which resulted in her delivering her letter of resignation to the store manager. Therefore, all that would have remained is the purely legal determination of whether the reduction in Employee's working hours constituted "good cause" for her resignation.In this case, the Appeals Referee reviewed the record and determined that, as a part-time employee, Employee's original employment agreement guaranteed her only three hours of work per week. This determination was affirmed by the Board, and, under the facts of this case, would ordinarily have been affirmed by this Court. There is no dispute that Employee's hours were reduced and that Employee expressed a desire for more hours; nonetheless, during her testimony before the Appeals Referee, Employee herself conceded that "she was not guaranteed any number of hours" when she was re-hired as a part-time employee. Thus, the reduction in Employee's hours did not amount to a "substantial deviation from the original employment agreement."
Division of Unemployment Appeals Referee's Decision at 3. Indeed, Employee testified that, when she was initially hired in 1998, she was hired as a full-time employee, but that, when re-hired in 2002, Employee offered her the choice of being hired as a full time or part-time employee, and she deliberately selected part-time status. Transcript of Administrative Hearing of Mar. 2, 2010 at 10. Employee stated that she later requested to be converted to full-time status, but Employer informed her that it could not be done at that time. Id.
Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Joseph P. Kania, Appeal Docket No. 10126709 (Aug. 13, 2010).
See supra note 11.
Transcript of Administrative Hearing of Mar. 2, 2010 at 10. Presumably, Employee intended to convey that she was not guaranteed any number of hours beyond the three hours per week that Employer concedes were guaranteed to part-time employees. See id. at 8.
Performance Shop v. Unemployment Ins. Appeal Board, 1985 WL 188974, *1 (Del. Super. Ct. 1985).
However, Employer's unexplained and inexcusable failure to appear before the Board or comply with this Court's scheduling order must yield the contrary result. Despite being issued a "Final Delinquent Brief Notice," Employer made no efforts comply with this Court's requirements, nor did Employer proffer any explanation for its procedural default. This is consistent with Employer's unexplained and unexcused failure to appear at the administrative hearing before the Board, despite being given appropriate notice of the hearing.
Transcript of Administrative Hearing of June 16, 2010 at 3 ("I will note for the record that employer was noticed of the time and place of the hearing by means of notice served on its agent. . . . The claimant has appeared and is ready to proceed. A diligent search of the premises has revealed that no employer's representative has appeared to defend the appeal.").
As provided in Superior Court Civil Rule 107(e):
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 . . . 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."
As stated, Employee's position would not have prevailed had Employer complied with Rule 107; nevertheless, when an appellee fails to comply with Rule 107, this Court may reverse an agency's decision, notwithstanding the legal or factual soundness of the agency's decision. Indeed, the facts and procedural history of Sprung v. Selbyville Cleaners are virtually identical to this case. In Sprung, the employee filed a pro se appeal of the Board's determination that she voluntarily quit without good cause; the employer failed to file an answering brief, as ordered by this Court. This Court held that, when an employer "has been afforded every opportunity to respond to this claim and has failed to do so," this Court is "left with no other alternative but to reverse the Board's decision." In reaching this conclusion, this Court noted:
See, e.g., Hunter v. First USA/Bank One, 2004 WL 838715, *5 (Del. Super. Ct. 2004) ("[I]n this case, the Court finds that there exists a significant violation of a statutory precept, in this instance, its own Civil Rule 107(e). Therefore, despite the formidable "substantial evidence" found to exist by the Board, the Court has no other alternative but to reverse the Board's decision due to Appellee's failure to diligently prosecute and file its brief pursuant to Rule 107(e).").
2007 WL 1218683 (Del. Super. Ct. 2007).
Id. at *1.
Id.
The efficiency and effectiveness of our judicial system relies heavily on the diligent actions of those involved in legal disputes. Filing deadlines are in place to promote such judicial efficiency. Because of this, the inexcusable failure of a party to respond when required to do so cannot be treated lightly by this Court.
Id.
It is true that "[u]pon the showing of good cause in writing, the Court may permit late filing of any of the aforesaid papers and pursuant to a written rule or order." However, Employer has made no efforts to properly appear before the Board or file any of the required submissions with this Court, despite being afforded notice of the relevant proceedings. Thus, this Court finds that Employer failed to respond this claim, without good cause, despite being "afforded every opportunity" to respond to Employee's claim. Although reversal of the Board's decision no doubt affects Employer's rights, Employer's due process rights were fully respected at every stage of this claim. Put simply, Employer's inexcusable failure to properly defend its interests in this case "is one of those rare instances when a party's unexplained inaction proves both disadvantageous to its cause, and results in a windfall for its adversary."
Super. Ct. Civ. Rule 107(e).
This Court notes that Employer's handling of the instant claim was so derelict that the available record is devoid of the identity of any administrative or legal personnel assigned to this case. As a result, this Court has addressed this opinion to Employer generally.
Hunter, 2004 WL at *6 ("Due process requirements mandate that in any appeal from an administrative agency, the Court must make certain that the agency action satisfies the constitutional requirements of due process. . . . The Court, and the Prothonotary's Office, have made considerable efforts to provide notice to the Appellee. Additionally, it is an undeniable fact that Appellee's representative did receive amended notice of the appeal. Thus, procedural due process has been aptly served.").
Id.; see also Cohen v. Allied Barton Security Servs., 2007 WL 2430062, *1 (Del. Super. Ct. 2007) ("This Court has held that `Rule 107(e) inextricably vests in the Court the power to reverse the Board's decision for failure of the Appellee to file its answering brief.' Despite adequate notice, Appellee has not filed an answering brief, nor has it provided any explanation for its inaction. Therefore, due to `Appellee's failure to diligently prosecute and file its brief pursuant to Rule 107(e)' the April 5, 2006 decision of the Board is reversed.") (quoting Hunter, 2004 WL at *4).