Opinion
C.A. No. 03A-09-003 RRC.
Submitted: February 25, 2004.
Decided: April 5, 2004.
UPON APPEAL FROM A DECISION OF THE UNEMPLOYMENT INSURANCE APPEALS BOARD.
AFFIRMED.ORDER
Upon this 5th day of April, 2004 it appears to the Court that:
1. Claimant Tara Hartman ("Hartman") has filed a pro se appeal to this Court from a decision of the Unemployment Insurance Appeals Board (the "UIAB") that had affirmed the Appeal Referee's decision that Hartman's appeal from a decision of the Division of Unemployment Insurance's Claims Deputy ("Claims Deputy") was untimely. The Claims Deputy had determined that Hartman was not eligible for unemployment benefits.
2. Hartman was employed by Wireless Castle, Inc. ("Wireless") from May 19, 2002 to May 31, 2003. Hartman filed for unemployment benefits June 6, 2003 claiming that she had been fired and "told not to come back." Wireless claims that Hartman voluntarily quit because her request for vacation was not approved. It is uncontested that the dispute between Hartman and Wireless occurred over her desire to take two weeks vacation.
Record at 7 (hereinafter "R at ___").
R at 6.
R at 2.
Hartman claims that in May 2003 her family "surprised" her with a vacation but when she requested the time off, Nodien Evans-Smith ("Evans-Smith"), president of Wireless, denied her request and "wanted her to resign." Hartman claims that she told Evans-Smith that she "wanted to keep her job" and that she "never voluntarily left her job." When she refused to resign, Hartman claims that Evans-Smith became "very angry with [Hartman] and told her [her] that [she] couldn't work there anymore."
R at 9.
R at 9.
R at 9.
Evans-Smith testified that she denied the request in part because Hartman had taken a "surprise" vacation in April. Evans-Smith further testified that after denying Hartman's request for vacation time, Hartman told her that "she would be going [on vacation] anyway no matter what and `Should she leave now'." Evans-Smith said that she took Hartman's words as an intention to resign and after discussing the terms of her resignation with her she expected a letter of resignation from Hartman on June 2, 2003. On June 2, Evans-Smith claims, Hartman told her that Wireless "were the ones who wanted her to resign so [they] should fire her."
R at 4.
R at 4.
R at 4-5.
R at 5.
3. The Claims Deputy reviewed the facts of this case and issued a notice of determination on June 7, 2003. The question before the Claims Deputy was whether Hartman voluntarily resigned because her request for vacation was denied, or whether Wireless tried to force her to resign over her request for vacation time and then terminated her when she refused to resign. The Claims Deputy determined that Hartman had caused her own termination by insisting on taking an unapproved vacation. The determination was designated, by statute, to become final on June 27, 2003 unless a written appeal was filed on or before that date.
R at 7.
19 Del. C. § 3318(b) provides as follows:
DECISION ON CLAIM BY DEPUTY; NOTICE; APPEAL;
(b) Unless a claimant or a last employer who has submitted a timely and complete separation notice in accordance with Section 3317 of this title files an appeal within 10 calendar day after such Claims Deputy's determination was mailed to the last known address of the claimant and the last employer, the Claims Deputy's determination shall be final and benefits shall be paid or denied in accordance therewith.
Hartman filed her appeal with the Appeals Referee on July 7, 2003, ten days after the appeal deadline. Hartman asserts that she filed her appeal late because she "was on a family vacation for two weeks, and by the time [she] got back and went through the mail it was already too late to file the appeal." Hartman states that she had her mail held at the Post Office while she was on vacation and she did not pick up her mail until July 5.
R at 23.
R at 25.
The Appeal Referee determined that the decision of the Claims Deputy, "based on the merits of the case, is final and binding due to claimant's failure to file a timely appeal." The Appeal Referee also determined that an appeal could be taken solely to consider the issue of timeliness.
R at 11.
The Appeals Referee held a hearing on the issue of the claimant's timeliness of appeal on July 29, 2003. The Appeal Referee determined that under 19 Del. C. § 3318(b) Hartman had to file her appeal within the statutorily defined time, which is within 10 calendar days after the determination was mailed, or the decision of the Claims Deputy would become final. The Appeal Referee determined that there was no administrative error on the part of the Department of Labor to excuse the untimeliness of Hartman's appeal. The Referee also determined that Hartman's reason for not getting the decision until July 5, her family vacation, did not "excuse the filing of a late appeal." Because the appeal was filed after the statutorily defined deadline and Hartman's reason for not filing on time did not constitute good cause, the decision of the Claims Deputy was affirmed.
R at 15.
R at 15.
A review of the Appeal Referee's decision was taken to the Division of Unemployment Insurance's Appeal Board ("UIAB"). On August 13, 2003, the UIAB affirmed the Appeal Referee's decision and denied Hartman's request for a further hearing. The UIAB found that `there was no error on the part of the Department [of Labor] which might have delayed [Hartman's] response." The UIAB held that the Department had "properly fulfilled its responsibility by mailing the determination to [Hartman's] address of record." The UIAB further held that Hartman's admitted reason for filing the appeal late, her vacation, was personal choice and it agreed with the Appeal Referee that the reason did not constitute good cause for waiving the timeliness requirement. The UIAB concluded that the Appeal Referee had correctly held that Hartman's late appeal of the Claims Deputy's determination constitutes a "jurisdictional bar to further proceeding" pursuant to 19 De. C. § 3318(b).
R at 25.
R at 25.
R at 25.
R at 25.
R at 25.
4. When this Court reviews a procedural decision of the UIAB, which in this case is a discretionary decision (as opposed to a factual decision of the UIAB that would require a substantial evidence review), the Court must consider whether the UIAB abused its discretion in rendering its decision. A procedural decision by an administrative agency is not an abuse of discretion "unless it is based on clearly unreasonable or capricious grounds" or "the Board exceeds the bounds of reason in view of the circumstances and had ignored recognized rules of law or practice so as to produce injustice." Absent an abuse of discretion, the Court must affirm the judgment of the UIAB.
Funk v. UIAB, 591 A.2d 222, 225 (Del. 1991).
K-Mart, Inc. v. Bowles, Del. Super., C.A. No. 94A-10-007, Cooch, J. (March 23, 1995).
Funk, 591 A.2d at 225.
5. In Lively v. Dover Wipes Co. this Court held that under 19 Del. C. § 3318(b) if an employee fails to file an appeal of a disqualification determination within 10 days, then that determination becomes final. The Lively court also held that "[t]he time for filing an appeal is an express statutory condition of jurisdiction that is both mandatory and dispositive." Where the lateness of the appeal is due to the claimant's unintentional or accidental actions, and not due to an administrative error, the Claims Deputy's determination will become final and § 3318(b) will jurisdictionally bar the claim from further appeal.
Lively v. Dover Wipes Co., 2003 Del. Super. LEXIS 193 *5 (Del.Super.Ct.).
Lively, 2003 Del. Super. LEXIS 193 *5 (quoting Duncan v. Delaware Dep't of Labor, 2002 del. Super. LEXIS 242, *4 (Del.Super.Ct.).
Meacham v. UIAB, 2002 Del. Super. LEXIS 75 (Del.Super. Ct) (holding that § 3318(b) jurisdictionally bars further proceedings when an appeal of a Referee's determination is filed late because of inadvertence on the part of the claimant.)
In Funk v. UIAB, the Supreme Court held that the UIAB did not abuse its discretion in refusing to consider the substance of an untimely appeal sua sponte, which the UIAB may do pursuant to 19 Del C. § 3320. The UIAB had explained in its letter opinion denying benefits to the claimant in Funk that it was "extremely cautious in assuming jurisdiction [ sua sponte when an appeal is filed late] and it does so only in those cases where there has been some administrative error on the part of the Department of Labor . . . or in those cases where the interests of justice would not be served by inaction" and that "such cases are far and few between."
See also Martin v. Pachulski, Stang, Zieht, Jones, Young Weintraub P.C., Del. Super., C.A. No. 03A-08-002, Cooch, J. (February 25, 2004) (ORDER) (holding that the UIAB did not abuse its discretion in not hearing an untimely appeal sua sponte pursuant to 19 Del. C. § 3320 because there was no administrative error on the part of the Department of Labor, nor did the circumstances of the situation rise to the level "where the interests of justice would not be served" if the UIAB did not act on its own).
Id.
6. This Court affirms the UIAB's decision affirming the Appeal Referee's decision that Hartman's appeal of the Claims Deputy's determination was jurisdictionally barred because it was filed late to the UIAB pursuant to 19 Del. C. § 3318(b). Hartman in her appeal to the UIAB conceded that her appeal of the Claims Deputy's determination was filed late because she was away on vacation and that her mail was held at the post office. Hartman, as the claimant, chose the timing of filing the claim and she therefore had control over the timing of when an appeal would be due. Hartman chose to file her claim before she left for vacation and thereby assumed the risk that an adverse decision could be entered against her. There is no evidence, nor has Hartman asserted, that there was any administrative error on the part of the Department of Labor in mailing the Claims Deputy's determination to her and there were no circumstances that would require the UIAB to act in "interests of justice."
7. The Court finds that the Unemployment Insurance Appeal Board did not abuse its discretion when it affirmed the determination of the Claims Deputy because Hartman's appeal was filed late pursuant to 19 Del. C. § 3318(b). The Court also finds that the UIAB did not abuse its discretion when it declined to act sua sponte pursuant to 19 Del. C. § 3320 to consider the substance of the appeal because there were no circumstances that would require the UIAB to act in "interests of justice." The decision of the UIAB is AFFIRMED.