Opinion
C.A. No. N10A-08-011 RRC.
Submitted: May 17, 2011.
Decided: July 21, 2011.
On Appeal from a Decision of the Unemployment Insurance Appeal Board.
REVERSED and REMANDED.Steve Elder, Wilmington, Delaware, Appellant.
Careers USA ATTN: Lisa Mendelsohn, Boca Raton, FL.
Dear Mr. Elder and Ms. Mendelsohn:
INTRODUCTION
Appellant Steve Elder ("Employee") filed Notice of Appeal from the November 22, 2010 decision of the Unemployment Insurance Appeal Board (the "Board") dismissing the appeal because Appellant failed to appear before the Board at the hearing he had requested.
This decision arose from Employee's appeal from the Delaware Department of Labor Appeals Referee's decision of September 29, 2010 reversing the Claims Deputy's determination that Employee was discharged from work without just cause and was entitled to the receipt of unemployment benefits. Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Joseph P. Kania, Appeal Docket No. 10155405 (November 22, 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 11, 2011, the Department of Justice indicated that it would not be filing an Answering Brief on behalf of the Division of Unemployment Insurance because Employee failed to appear at a previous appeal and thus failed to exhaust his administrative remedies. However, Employer has inexplicably failed to file an Answering Brief in this Court, despite this Court's issuance of a "Final Delinquent Brief Notice" on June 10, 2011. Accordingly, this Court will reverse the determination of the Board due to Employer's failure to respond, in violation of Superior Court Civil Rule 107.
Letter from Dep. of Justice May 17, 2011
FACTS AND PROCEDURAL HISTORY
This case arises from Employee's July 30, 2010 release from employment by Employer. Employee had been employed with Employer since September 15, 2008; at the time of his discharge, Employee was a customer service representative and earned $13.00 per hour. Employee was working a part-time, and was informed that he would have to pass a criminal background check and have good credit in order to be eligible for full-time employment. Employee originally had only credit issues to resolve, and he accordingly filed for bankruptcy. However, during the time he was remedying his credit, Employee was arrested; though charges were ultimately dropped, Employee had until July 2010 to get the charges expunged from his record before he could assume full-time employment. Employee failed have the charges expunged, and he was consequently ineligible for full-time hire; because the Employer needed a full-time employee for the position, Employee was discharged.
Division of Unemployment Appeals Referee's Decision at 2.
Id.
Id.
Id.
Id.
Id.
Employee knew from the start of his employment that he would have to pass a background check to Employer's satisfaction in order to be eligible for full-time employment. At the administrative hearing, Employee testified that he knew of his credit issue and made the necessary arrangements to remedy his poor credit by filing for bankruptcy. Employee then explained that he had been arrested, but he not convicted; Employee testified that Employer had insisted that the arrest be expunged from Employee's record before he could be employed full time. Employee testified that he was unable to get the arrest expunged by the deadline set by Employer because of financial and timing constraints.
Division of Unemployment Appeals Referee's Decision at 2.
Transcript of Administrative Hearing of June 16, 2010 at 7.
Id. at 7.
Id. at 9.
The Appeals Referee determined that Employer was able to establish by a preponderance of the evidence that Employee was discharged for just cause. The Appeals Referee noted that Employee knew that he would have to pass a background check and was given six months to take care of any problematic findings on his background check. When Employee failed to have his criminal charge expunged from his record by the six month deadline, as required by Employer, Employer had just cause to terminate employment. The Board affirmed the Appeals Referee's decision; the Board further noted that Employee had failed to appear, and dismissed his appeal.
Division of Unemployment Appeals Referee's Decision at 3.
Id.
Id.
Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Joseph P. Kania, Appeal Docket No. 10155405 (Nov. 10, 2010) at 2.
On appeal to this Court, Employee filed a brief alleging his dismissal was based on "personal opinion," and that his employment information should have been presented to other parties for review. Employer did not respond to this letter; rather, Employer filed a letter with the Court indicating that it had unilaterally decided that it was not going to file an answering brief because it believed Employee had not adequately exhausted the necessary administrative remedies.
See Employee's Br. of Apr. 5, 2011 at 1.
See Letter from Careers USA to the Court (May 17, 2011).
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(2), an employee who is discharged is disqualified from receiving unemployment compensation benefits unless he or she can establish lack of "just cause" for his or her discharge. The employer bears the burden of establishing, by a preponderance of the evidence, that an employee was terminated for just cause. The determination of whether there is "just cause" for termination exists if employee participated in a "willful or wanton act," in violation of either Employee's interests or duties, or the expected standard of conduct. Conduct is "wanton" if it is heedless, malicious, or reckless, but not done with intent to cause harm; conduct is willful, is that which implies actual, specific or evil intent.
"An individual shall be disqualified for benefits: [] For the week in which the individual was discharged from the individual's work for just cause in connection with the individual's 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." § 3314(2).
See, e.g., Neal v. Caldwell Temporary Servs., Inc., 1993 WL 331078, at *3 (Del. Super. Ct. 1993) ("The employer has the burden of proving `just cause' by a preponderance of the evidence before the employee well be disqualified from benefits.") (citations omitted).
Tuttle v. Mellon Bank of Delaware, 659 A.2d 786, 789 (Del. Super. Ct. 1995) (citations omitted).
Id. (citations omitted).
DISCUSSION
Ordinarily, the resolution of this appeal would turn on the purely legal question of whether Employee's termination was supported by just cause. While there may have been some factual dispute with respect to Employee's treatment by Employer, the operative fact is undisputed, viz., that Employee failed to satisfy Employer's requirement that he sufficiently complete a background check. Employee's testimony to the Appeals Referee makes clear that he was terminated based on his inability to get a criminal charge expunged from his record, which resulted in his inability to be hired full-time, and, in turn, his discharge from employment. Therefore, all that would have remained is the purely legal determination of whether there was just cause for discharge of Employee.In this case, Employee was given prior notice of Employer's background check requirement and an opportunity to cure any subsequently discovered issues; the Appeals Referee reviewed the record and determined that Employee was made aware of the need to have a clean background check, and was given a sufficient amount of time to comply with this requirement. Employee's appeal of this decision was dismissed by the Board, and, under the facts of this case, would likely have been affirmed by this Court. There is no dispute that Employee failed to meet the requisite conditions of employment, although he was provided an adequate amount of time to resolve the issue. Thus, there was "just cause" for Employee's discharge.
See generally Tuttle v. Mellon Bank of Del., 659 A.2d 786, 789 n. 4 (Del. Super. Ct. 1995) ("One factor utilized in determining `just cause' is whether an employee received a prior warning.") (citation omitted).
Division of Unemployment Appeals Referee's Decision at 3.
Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Joseph P. Kania, Appeal Docket No. 10155405 (Nov. 10, 2010) ("As the Claimant failed to appear to prosecute its appeal, the appeal is dismissed).
Division of Unemployment Appeals Referee's Decision at 3.
See supra text accompanying notes 25-26.
However, notwithstanding Employer's explanation, set forth in a letter to the Court, that it did not intend to comply with the scheduling order, its failure to comply with this Court's scheduling order is inexcusable, and, accordingly, the Court must reach 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 a sufficient explanation for its procedural default.
See supra note 18.
See Letter from Careers USA to the Court (May 17, 2011) (indicating that Employer "does not intend to file an Answering Brief . . . [because] employee failed to exhaust his administrative remedies" by not showing up to the Board's hearing).
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 likely 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. This Court has previously 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, at *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).").
Sprung v. Selbyville Cleaners, 2007 WL 1218683 (Del. Super. Ct. 2007).
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 specifically indicated that it will not 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 appeal, 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. The Court recognizes that Employer's inexcusable failure to properly defend its interests in this case "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, at *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); Crews v. Sears Roebuck Co., 2011 WL 2083880 (Del. Super. Ct. 2011) (Accord).
CONCLUSION
Accordingly, for all the reasons stated above, the decision of the Unemployment Insurance Appeal Board is REVERSED. This case is REMANDED to the Unemployment Insurance Appeal Board, for further proceedings not inconsistent with this opinion.