Opinion
C.A. No. 10A-01-015 JRS.
Submitted: September 21, 2010.
Decided: December 10, 2010.
Upon Consideration of Appeal From the Unemployment Insurance Appeal Board. Affirmed.
ORDER
This 10th day of December, 2010, upon consideration of the pro se appeal of Berneda A. Gilmore from the decision of the Unemployment Insurance Appeal Board (the "Board") denying her claim for unemployment benefits against her former employer, the Delaware Art Museum ("the Museum"), it appears to the Court that:
1. As of June 2006, Ms. Gilmore was working roughly 15 hours per week at the Museum. Her supervisor was A.J. Schwander, the Chief of Security at the Museum.
Record ("R." at ___) R. at 18.
2. Ms. Gilmore testified that, upon hire, she was promised 14-20 hours per week by both Mr. Schwander and Diane Nangle (the human resources manager at the Museum). Ms. Gilmore asserts that she also informed Mr. Schwander that she experiences back problems and, further, that she needed certain times off from the Museum because of scheduled singing performances. Mr. Schwander assured Ms. Gilmore that she could have time off on those days.
Id. Ms. Gilmore did not offer any other testimony or documentation to show that she was promised 14-20 hours per week. R. at 7.
Op. Br. At 2.
R. at 18, 29. See also Op. Br. at 2.
3. Mr. Schwander provided weekly hours to the security officers, including to Ms. Gilmore, which were determined based on the various events at the Museum. Ms. Gilmore's hours generally ranged from 14 to 30.5 per week although at times she worked less than 14 hours per week. She was compensated at the rate of $11.78 per hour. Various emails between Ms. Gilmore and Mr. Schwander established her weekly schedule and confirmed that she was able to work around her singing performances.
R. at 43-117.
Id. The Court notes that Ms. Gilmore worked more than 30.5 hours for only five weeks out of 18 months.
R. at 10.
R. at 28-39.
4. Beginning December 27, 2008, Ms. Gilmore's hours were reduced to approximately four hours per week. On February 15, 2009, Ms. Gilmore filed for partial unemployment benefits with the Delaware Department of Labor ("DOL") on the basis that she was guaranteed full-time hours and was being scheduled just four hours per week. The DOL denied that claim on May 12, 2009, finding that Ms. Gilmore was hired to work on an as-need basis with no guarantee of hours per week and that she continued to work the hours for which she was hired. Pursuant to 19 Del. C. § 3302(17), this finding disqualified Ms. Gilmore from receiving partial unemployment compensation.
R. at 89-117.
R. at 1.
Id.
5. Ms. Gilmore filed an appeal of the Claims Deputy's decision to the Appeals Referee on May 20, 2009, and a hearing was scheduled for June 23, 2009. The Appeals Referee found that Ms. Gilmore did not produce sufficient evidence to show that she was guaranteed full-time hours and thus affirmed the decision of the Claims Deputy.
R. at 11.
6. On June 28, 2009, Ms. Gilmore submitted her resignation because she was not getting sufficient hours and also because she was scheduled to undergo a back fusion surgery that would keep her out of work for six to eight weeks.
R. at 118.
7. Ms. Gilmore filed an appeal of the Referee's decision with the Board on June 30, 2009. The hearing was initially scheduled for September 9, 2009 but, per request of the Museum, was postponed to October 14, 2009. As a result of the October hearing, the Board affirmed and modified the decision of the Appeals Referee. The Board noted that an employee cannot be considered partially unemployed if she was a "part time employee who does not have normal customary full-time hours." The Board found that Ms. Gilmore was not guaranteed full-time hours. Rather, by Ms. Gilmore's own testimony, she was only supposed to work 14-20 hours per week. As such, Ms. Gilmore was ineligible to receive partial unemployment benefits from the period in February 2009 until her resignation in June 2009. The Board further found that Ms. Gilmore bore the burden of showing "good cause" for voluntarily ending her employment in June of 2009 and that she failed to meet that burden.
R. at 13.
R. at 14, 17. The hearing was postponed due to the illness of Ms. Nangle.
R. at 20.
R. at 19 (citing Valentin v. Salon, 2008 WL 73706 (Del. Super. Jan. 4, 2008).
R. at 19.
R. at 19.
R. at 19-20 (citing Longobardi v. Unemployment Ins. Appeal Bd., 287 A.2d 690 (Del. Super. 1971)).
8. On appeal to this Court, Ms. Gilmore challenges the Board's finding that she is not entitled to unemployment compensation on the basis that she resigned from her position for good cause because her hours had been diminished to four hours per week.
Op. Br. at 3.
9. The Court's standard of review of the Board's decision is well settled. The Court must determine whether the Board's factual findings are supported by substantial evidence and free from legal error. Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court does not weigh evidence, assess credibility, or make independent factual findings. And legal determinations by the Board are reviewed for abuse of discretion.
Morgan v. Anchor Motor Freight, Inc., 506 A.2d 185, 188 (Del. Super. 1986).
Oceanport Indus. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
10. The Court is satisfied that the Board's determination is supported by substantial evidence in the record and can find no abuse of discretion. Pursuant to 19 Del. C. § 3315(1), "a[n] individual shall be disqualified for benefits: (1) For the week in which he left work voluntarily without good cause attributable to such work." While good cause can be established though substantial reduction in wages or work hours, working part-time without any guarantee of set hours per week, and voluntarily leaving due to a reduction in unguaranteed work hours, does not meet the burden imposed by the statute.
R. at 19.
R. at 19. (Citing Hopkins Constr. v. Unemployment Ins. Appeal Bd., 1998 WL 960713 (Del. Super. Dec. 17, 1998)).
11. Based on the foregoing, the Court is satisfied that the Board applied the correct legal standards and that its decision is supported by substantial evidence. Accordingly, the decision of the Board denying Ms. Gilmore's application for unemployment compensation must be AFFIRMED.
IT IS SO ORDERED.