Opinion
C.A. No. N10A-05-014 MMJ.
Submitted: March 1, 2011.
Decided: May 9, 2011.
Appeal from the Unemployment Insurance Appeal Board.
Laurie Hervey, Pro Se, Wilmington, DE.
CCRES, Pro Se, Downingtown, PA.
Katisha Fortune, Esquire, Department of Justice, Wilmington, DE, Attorney for the Unemployment Insurance Appeal Board.
MEMORANDUM OPINION
FACTUAL AND PROCEDURAL CONTEXT
Claimant Laurie Hervey was employed by Chester County Regional Education Services ("CCRES"), a non-profit organization that assigns therapeutic support staff to children with special needs. Hervey joined CCRES as a therapeutic support staff member on September 2, 2009. Hervey's employment contract provided, in part, that she would not be required to lift more than ten pounds.
CCRES places a staff member with a child based on the staff member's availability and the child's needs. Upon placement, a staff member becomes a paid employee of CCRES. Hervey completed training in September and October 2009. CCRES placed Hervey in early November 2009.
CCRES placed Hervey with a child who weighed approximately 95 pounds. It was necessary that Hervey lift the child from her wheelchair onto an "EZStander" — a device that assists handicapped children with standing. Hervey experienced difficulty lifting the child and, as a result, suffered back problems. After working with the child for several days, Hervey believed that, due to these problems, she could not continue.
On November 16, 2009, Hervey worked with a physical therapist in an effort to learn how to lift the child. Hervey testified that the physical therapist "realized that she wasn't going to be able to [lift the child]." Later that day, Hervey called her supervisor at CCRES to express her concerns about working with the child.
On November 17, 2009, Hervey resigned from her placement, but did not resign from CCRES. As of November 17, Hervey was no longer a paid employee of CCRES. Hervey did not provide CCRES with any medical documentation regarding her back.
Subsequently, Hervey contacted several CCRES case managers in an effort to obtain another placement. Hervey testified that she was unsuccessful because either the case manager did not respond to her inquiry or all suitable placements were filled.
On December 14, 2009, Hervey applied to work for Red Clay School District in Wilmington, Delaware. Hervey explained that she "couldn't wait around forever for CCRES to have available cases. . . ." Hervey started at Red Clay in early January 2010, working three days a week as a para-information and mentoring coordinator.
On December 27, 2009, Hervey applied for unemployment benefits. On January 15, 2010, a Claims Deputy denied Hervey's application. The Deputy found that Hervey voluntarily quit, and therefore, was disqualified from receiving unemployment benefits. Hervey appealed the Deputy's decision to an Appeals Referee.
On February 17, 2010, the Referee affirmed the Deputy's decision, finding that Hervey voluntarily left her job without good cause. The Referee held that Hervey failed to give CCRES adequate time to correct any employment-related conditions that affected her health. Further, the Referee noted that Hervey did not provide documentation by her physician to show that she could not perform her job due to medical reasons or that she was advised by her physician to resign from the placement. Hervey appealed the Referee's decision to the Board.
On May 10, 2010, the Board affirmed the Referee's decision. The Board found that Hervey's resignation from her placement amounted to quitting her employment. The Board held that Hervey was obligated to inform CCRES of her concerns before resigning from her placement. Because she failed to do so, the Board found that Hervey did not exhaust her administrative remedies and is not entitled to unemployment benefits.
On June 4, 2010, Hervey filed a pro se appeal of the Board's decision to this Court.
STANDARD OF REVIEW
On appeal from the Unemployment Insurance Appeal Board, the Superior Court must determine if the Board's factual findings are supported by substantial evidence in the record and free from legal error. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court must review the record to determine if the evidence is legally adequate to support the Board's factual findings. The Court does not "weigh evidence, determine questions of credibility or make its own factual findings." If the record lacks satisfactory proof in support of the Board's finding or decision, the Court may overturn the Board's decision. On appeal, the Superior Court reviews legal issues de novo.DISCUSSION Hervey's Contentions
Hervey argues that the Board erred by finding that Hervey did not notify CCRES about her concerns with her placement. Hervey asserts that she "notified her employer CCRES of the lifting requirement made by the school and her difficulty meeting this requirement on several occasions in-person and on the telephone." She explains that, because of her complaints, CCRES "arranged administrative remedies" for her, including the physical therapy session. Because the Board did not consider this evidence, Hervey contends, its decision was not supported by substantial evidence. Hervey also asserts that, after she resigned from her placement, there were "virtually no viable cases to take," despite her diligence with contacting CCRES case managers.Analysis
An employee is not entitled to unemployment benefits if she voluntarily quits her job without good cause. "The good cause for voluntarily leaving employment must be for reasons connected with the employment and not for personal reasons." Good cause, for example, would be a "substantial reduction in wages, work hours or a substantial deviation in the working conditions from the original agreement of hire to the employee's detriment." However, an employee must "do something akin to exhausting [her] administrative remedies" before quitting.
Baaden v. Amer Indus., 2010 WL 1854133, at *2 (Del. Super.).
Miller v. Mattress Warehouse, Inc., 2008 WL 3892208, at *2 (Del. Super.) (quoting Weathersby v. Unemployment Ins. App. Bd., 1995 WL 465326, at *5 (Del. Super.)).
O'Neal's Bus Serv., Inc., v. Employment Sec. Comm'n, 269 A.2d 247, 249 (Del. Super. 1970).
It is undisputed that Hervey voluntarily quit on November 17, 2009 when she resigned from her placement and ceased to be a paid employee. Therefore, the Court must determine whether Hervey had good cause to quit by examining the circumstances before she tendered her resignation. Whether Hervey diligently sought another placement with CCRES after she quit — and whether CCRES was receptive to Hervey's requests — is irrelevant.
It is also undisputed that, when she joined CCRES, Hervey signed an employment contract that provided she would not be required to lift more than ten pounds. CCRES placed Hervey in a position where it was necessary that she lift a 95 pound child, which she was unable to do. This amounts to a "substantial deviation in the working conditions from the original agreement of hire to the employee's detriment." Therefore, the Court must decide whether Board's determination that Hervey did not exhaust her administrative remedies is supported by substantial evidence.
Miller, 2008 WL 3892208, at *2 (quoting Weathersby, 1995 WL 465326, at *5).
Hervey had a physical therapy session on November 16, 2009, notified her supervisor that she was experiencing difficulty lifting the child later that evening, and the following morning, tendered her resignation to CCRES. Hervey claims that she "notified her employer CCRES of the lifting requirement made by the school and her difficulty meeting this requirement on several occasions in-person and on the telephone." Hervey did not, however, substantiate these claims. The record reflects that the first time she expressed her concerns to CCRES was on November 16, 2009, after her physical therapy session and immediately prior to her resignation the following morning. A reasonable mind would accept this evidence as adequate to support the conclusion that she did not exhaust her administrative remedies. Therefore, the Board's decision is supported by substantial evidence.
CONCLUSION
The Board's determination that Hervey did not do "something akin to exhausting [her] administrative remedies" before quitting is supported by substantial record evidence. Hervey voluntarily quit her employment with CCRES without good cause. The Court finds that the Board's decision is free from legal error.
O'Neal's Bus Serv., 269 A.2d at 249.
THEREFORE, the Court hereby AFFIRMS the Board's decision in its entirety.
IT IS SO ORDERED.