Opinion
C.A. No. 03A-09-004 WLW.
Submitted: January 9, 2004.
Decided: April 30, 2004.
Upon Appeal of Decision of the Unemployment Insurance Appeal Board. Reversed and Remanded.
Roger O. Schneider, pro se.
Ray E. Calloway Bus Service, pro se.
ORDER
Introduction
Before this Court is Roger Schneider's appeal of a decision of the Unemployment Insurance Appeal Board ("UIAB") finding that Mr. Schneider was not eligible to receive unemployment benefits because he was not unemployed. Ray Calloway Bus Service, Inc. ("REC") answered the appeal.
Background
Roger Schneider has been employed by REC since September 2, 2002 as a school bus driver. Originally he was hired as a substitute bus driver earning $68.00 per day, but due to budget cuts within the state, his pay was reduced to $60.00 per day for the same work. When he began working for REC, he was receiving unemployment benefits due to the loss of a previous job in the construction business. In April 2003, he was offered a position as a permanent bus driver for a route in Clayton, Delaware. Although his pay would be reduced to $39.00 per day, it was an easier route than his previous assignments and he was told that he would be able to make up the difference by driving on extra trips, earning $10.00 per hour. He had the option of continuing as a substitute bus driver at a pay rate of $60.00 per day, but instead chose to accept the permanent driver position at the lower pay rate. At the time of the UIAB hearing, Mr. Schneider was still employed by REC as a driver on the Clayton bus route.
On December 1, 2002, while employed with REC, Mr. Schneider filed for unemployment benefits. According to his opening brief, he was told he was eligible for 26 weeks of benefits at $314.00 per week. However, on April 29, 2003, a claims deputy concluded that he was ineligible for benefits because he was not "unemployed" as defined in 19 Del. C. § 3302(17). The claims deputy concluded that Mr. Schneider was ineligible for benefits beginning with the week ending December 14, 2002, because he was employed as a bus driver for 30 hours per week. However, the claims deputy did award benefits for the weeks during which school was closed.
19 Del. C. § 3302(17) (2004) provides:
"Unemployment" exists and an individual is "unemployed" in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to such week are less than the individual's weekly benefit amount plus whichever is the greater of $10 or 50% of the individual's weekly benefit amount. . . .
Mr. Schneider appealed the denial of benefits and the matter was then heard by Joseph Julian, Jr., an Appeals Referee, on May 28, 2003. The Appeals Referee concluded, after hearing from Mr. Schneider and Phyllis Poore, a representative of REC, that Mr. Schneider was employed as a full-time driver with REC when he applied for benefits and thus was not eligible for unemployment benefits. In addition, the Appeals Referee found that Mr. Schneider voluntarily accepted the lower paying position as a permanent driver. Therefore, the Appeals Referee affirmed the decision of the claims deputy.
Mr. Schneider appealed this decision as well as a decision by the Appeals Referee that he repay benefits improperly received, and a hearing was conducted on July 16, 2003 before the Unemployment Insurance Appeals Board. The Board heard testimony from Mr. and Mrs. Schneider regarding the two decisions from which Mr. Schneider was appealing: (1) the requirement that he pay back improperly paid unemployment benefits from September 2002, and (2) the denial of unemployment benefits for which Mr. Schneider filed in December 2002. Mr. Schneider contended that he was eligible for unemployment benefits because his weekly pay was less than his unemployment benefits. The Board, however, concluded that because Mr. Schneider was working full-time and receiving wages, he was not unemployed as defined in 19 Del. C. § 3302(17). In addition, the Board agreed with the Appeals Referee in finding that Mr. Schneider voluntarily accepted the lower paying job. Therefore, the Board affirmed the decision of the Appeals Referee finding the Mr. Schneider was ineligible for benefits. While the Board heard testimony regarding Mr. Schneider's allegedly improper receipt of benefits in September 2002, this issue was not specifically addressed in their decision.
Mr. Schneider appealed the Board's decision to this Court contending that he is eligible for unemployment benefits because he earns less than his weekly benefit amount and was employed only part-time until April 2003. In addition, Mr. Schneider contends that he should not be required to refund the benefits he received in September 2002, because he did not obtain them through fraud. REC mailed a letter to the Court indicating that it did not oppose Mr. Schneider's appeal.
While Mr. Schneider pursued this appeal through the Division of Unemployment Insurance, he did not include the appeal docket number 427649 on his notice of appeal to this Court. In his opening brief, Mr. Schneider states that it was an oversight on his part due to his inexperience filing an appeal in the Superior Court. Although this was not raised in his notice of appeal, the Court will still consider this issue.
REC's letter was apparently to serve as an Answering Brief. However, REC is a corporation and must be represented by an attorney when appearing before the Court. Therefore, because REC was not represented by counsel in this appeal, the Court must disregard the letter. See Transpolymer Industries, Inc. v. Chapel Main Corp., 582 A.2d 936 (Del. 1990) and Hubble v. Delmarva Temporary Staffing, 2003 WL 1980811 (Del.Super.Ct.).
Discussion
On appeal from a decision of the Unemployment Insurance Appeals Board, the Court must determine whether the Board's conclusions are free from legal error and supported by substantial evidence. "Substantial evidence is evidence which affords a substantial basis of fact from which the fact in issue can be reasonably inferred." The factual findings of the Board, "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 issue before this Court is whether the Board properly concluded that Mr. Schneider was employed full-time with REC. Although the term "full-time work" has not been defined in the Delaware Code, the Courts have interpreted this to mean not only full-time hours, but also full-time pay. In Weeraratne v. Unemployment Insurance Appeal Board, the Court concluded that although the claimant was working 40 hours per week on a commission basis, the fact that he earned only $1,000 in one year of work was overriding in determining that he was not a full-time employee. In Weathersby, the Court affirmed the Board's decision that the claimant was employed full-time when he was working a total of 37.75 to 38.5 hours per week between two part-time employers. The Board in that case made reference to the merit rules for the State of Delaware, which provide that state employees are considered full-time if they work at least 37.5 hours per week. However, the Court noted that this was not dispositive of what constitutes full-time work.
Based upon this determination, the Board found that Mr. Schneider was not unemployed as defined in 19 Del. C. § 3302(17).
1994 WL 164564, *3 (Del.Super.Ct.).
Id. at *3.
1995 WL 465326, *3 (Del.Super.Ct.).
Id. at *3.
The testimony before the Board indicated that Mr. Schneider was working 30 hours per week for REC, initially earning $340.00 per week. After state budget cuts, Mr. Schneider's pay was reduced to $300.00 per week. Originally Mr. Schneider was hired as a substitute bus driver, but then became a permanent driver in April 2003. However, even when he was a substitute driver, he worked five days a week, according to the testimony of the REC representative. Currently, he works five days a week, making bus runs in the morning and in the afternoon. He also has an opportunity to drive on extra trips, earning additional money, but the opportunity for trips has not arisen often.
The Board's decision does not clearly set forth its reasons for concluding that Mr. Schneider was employed full-time. After reviewing the record there does not appear to be substantial evidence establishing that Mr. Schneider was performing full-time work for REC at the time he applied for unemployment benefits. Full-time work means full-time pay and full-time hours. This Court finds that working 30 hours per week does not qualify as full-time work. Therefore, Mr. Schneider is not working full-time and the Board erred in reaching this conclusion.
Because Mr. Schneider is not working full-time, whether he is "unemployed" must be determined by using the formulation set forth in 19 Del. C. § 3302(17), which states that one is unemployed if he or she is working less than full-time and the wages payable are less than the weekly benefit plus the greater of $10 or 50% of the weekly benefit. Here, Mr. Schneider's weekly benefit amount is $314.00 and his weekly wages were $300.00. His weekly benefit plus 50% of the weekly benefit totals $471.00. In sum, because $300.00 is less than $471.00, Mr. Schneider meets the test of unemployment. Based upon the record before this Court, the Board erred as a matter of law in finding that Mr. Schneider was not unemployed.
However, pursuant to 19 Del. C. § 3314, an unemployed individual still must meet additional requirements in order to be eligible for benefits. The Board did not receive evidence nor hear testimony regarding the other eligibility requirements or the factors which would result in disqualification from benefits set forth in 19 Del. C. § 3315. Therefore, this case must be remanded to the Board for a determination regarding Mr. Schneider's eligibility to receive unemployment benefits.
Mr. Schneider also appeals the Board's decision that he must repay benefits he received improperly during the weeks of September 7, 14, and 21, 2002, pursuant to 19 Del. C. § 3325. Mr. Schneider contends that because he did not receive the benefits as the result of fraud, but rather mistake, he should not be required to refund the payments. The Board's decision does not specifically address this issue, although the Board heard testimony regarding Mr. Schneider's repayment of benefits received. Presumably, the Board intended to address the issue in its decision when it affirmed the decision of the Appeals Referee. However, the record provided to the Court by the Board contains a transcript of a proceeding before the Appeals Referee in which Mr. Schneider attempted to address the issue but was told by the Referee, "I don't want to hear about that one now." The decision of the Referee dated June 12, 2003, also does not address this issue.
On March 9, 2004, the Court mailed a letter to the Board requesting the full record for Docket No. 427649. On April 29, 2004, the Court was told that the full record was already provided.
Transcript of Schneider v. Ray Calloway Bus Service, Appeal Docket No. 427640, Hearing before Appeals Referee, June 4, 2003, pp. 14-15.
According to 19 Del. C. § 3325, if unemployment benefits are received improperly, whether as the result of mistake or fraud, the person who received those benefits must repay them. It appears from the testimony before the Board that Mr. Schneider acknowledged that he failed to disclose income he was receiving in September 2002 when he filed for unemployment benefits. Therefore, he would have received an amount in excess of what he was supposed to receive. Based upon § 3325, Mr. Schneider is responsible for repaying any amounts he received improperly, even if he simply made a mistake completing the forms. However, because the record does not have a transcript of the proceeding before the Appeals Referee addressing this issue, and the Board apparently did not hear testimony regarding the amount Mr. Schneider must refund, the matter must be remanded to the Board to make a determination of the amount of improper benefits Mr. Schneider received in September 2002 and the amount he is required to repay.
Conclusion
Based upon a review of the transcript of the proceeding below, this Court finds that Mr. Schneider did meet the test for unemployment. Therefore, the Board's decision finding that Mr. Schneider was not unemployed is reversed and the matter is remanded to the Board to make a determination with respect to the additional requirements for eligibility. In addition, the Board's decision requiring Mr. Schneider to repay the improper benefits he received in September 2002 is affirmed, but the matter is remanded to the Board to make findings regarding the amount Mr. Schneider must repay.
IT IS SO ORDERED.