Opinion
C.A. No. 99A-10-008.
Date Submitted: May 26, 2000.
Date Decided: August 29, 2000.
UPON CLAIMANT'S APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD REVERSED and REMANDED
Deborah Wilson, 7 Garden Lane, New Castle, DE 19720, Claimant — Below, Appellant is pro Se.
Roger M. Levy, Esq., 500 Basin Road, New Castle, DE 19720. Attorney for Employer — Below, Appellee.
James Hanley, Esq., Department of Justice, Carvel State Office Building, 820 French Street, Wilmington, DE 19801. Attorney for UIAB — Below, Appellee.
MEMORANDUM OPINION
This 29th day of August, 2000, upon review of the documents filed by the parties and the record below, it appears to the Court that:
FACTS
This is an appeal filed by Deborah Wilson ("Appellant") after receiving an adverse decision from the Unemployment Insurance Appeal Board ("Board") on October 15, 1999. The Board, through incorporation of the decision by the Appeal's Referee, found that Appellant quit her job with Miller's Carpet One ("Employer") without good cause in connection with her work and was disqualified for unemployment benefits, affirming the Appeal's Referee's decision.
Appellant had worked full-time for Employer for approximately three and one-half years before she had a problem with Employer's work schedule. After Employer made some changes to the schedule, Appellant wrote a letter informing Employer that she was only able to work a limited schedule to the exclusion of nights and Saturdays due to problems with child care. In addition, Appellant had a medical restriction which limited her to work eight hours per day. While Employer was willing to accommodate Appellant's medical restrictions it would not accommodate Appellant's personal restrictions and Employer explained this to Appellant in a reply letter dated March 3, 1999. Employer maintains that its scheduling policy has always required employees to work evenings and weekends, though Employer typically gives employees every third weekend off Employer asserts that Appellant was made aware of the scheduling policy upon the offer of employment.
After receiving Employer's reply letter stating it could not accommodate Appellant's work schedule limitations, Appellant tried to discuss her situation with one of Employer's vice presidents to no avail. Appellant was supposed to report to work for a 2:00 p.m. to 9:00 p.m. shift however, she failed to report nor did she report on the following day to work the same shift. Appellant testified that after she failed to show, she assumed someone would call her to try to work something out.
Neither Employer or Appellant has indicated the date of the failure to report.
Although Appellant was aware of the scheduling policy. Appellant testified that Employer had accommodated other employees who needed certain days off or to work certain hours. Employer testified that it had in fact accommodated employees who needed a certain day off or could not work a particular evening. Employer asserted that it would have been willing to accommodate Appellant to some extent as well but not to the point that she would be allowed not to work Saturdays or evenings. Employer also testified that the schedule change with which Appellant had problems was posted at least two weeks in advance, if not more. Employer maintains that Appellant, like all employees, had at least two weeks to make any personal adjustments necessary to enable her to work the new schedule.
STANDARD OR REVIEW
When reviewing a decision of the Unemployment Insurance Appeal Board this Court is to determine whether the decision is supported by substantial evidence and whether the Board's proceedings are free from legal error. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Board is to solve any questions as to credibility and conflicts while the Court is to determine only whether there is satisfactory proof to support a factual finding. "Where a party with the burden of proof fails to convince the Board below, the resulting finding of fact can be overturned by this Court only for errors of law, inconsistencies, or a capricious disregard for competent evidence."
Unemployment Ins. Bd of Dep't. of Labor v. Duncan, Del. Supr., 337 A.2d 308, 309 (1975); Avon Products, Inc. v. Wilson, Del. Supr., 513 A.2d 1315, 1317 (1986).
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104 (1988).
Duncan, 337 A.2d at 309; Abex Corp. v. Todd, Del. Super., 235 A.2d 271, 273 (1967).
Ridings v. Unemployment Ins. Appeal Bd., Del. Super., 407 A.2d 238, 239 (1979); Hibble v. Timko Brothers, Inc., Del. Super., C.A. No. 96A-05-002, Carpenter, J. (Aug. 17, 1996) (ORDER).
DISCUSSION
Employer argues that Appellant fails to allege in her brief that the Board's decision was not supported by substantial evidence. Employer argues that there is substantial evidence in the record to support the Board's decision that Appellant voluntarily quit her job for personal reasons. Employer asserts that Appellant admitted at the hearing that she voluntarily quit her job and that testimony was accepted as fact. Employer argues that the record contains substantial evidence in support of the Board's decision. In addition, Employer argues that the Board's decision was not contrary to law and was rendered pursuant to 19 Del. C. § 3315 (1).Section 33 15(l) states in pertinent part that:
An individual shall be disqualified for benefits: (1) For the week in which the individual left work voluntarily without good cause attributable to such 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.
When an employee voluntarily quits, the burden of proof is on the claimant to establish an entitlement to unemployment compensation. In addition, "good cause for voluntarily quitting must be for reasons connected with the employment."
A situation similar to the one in the case sub judice was present in White v. Security Link. In White, the claimant was a mother of a two-year-old who was separated from her husband. The claimant worked for the employer for five years in which her hours were 7:30 a.m. to 4:00 p.m. The employer subsequently changed the claimant's hours twice. With the second change, the employer scheduled the claimant to work from 11:00 a.m. to 7:30 p.m. The employer informed the claimant of this change on a Friday and required the claimant to be at work for the changed shift on the following Monday. The claimant's sister had previously been providing child care for the claimant at no charge. When the claimant in White was advised of the new schedule she informed the employer that she did not have child care for those hours and could not afford to pay for child care at that time. The employer asked others to work the changed hours but all declined. The employer felt claimant was the most qualified and required her to work the schedule knowing the claimant would have a child care problem. The White Court held that "an employee who resigns from employment because a change in working hours creates a conflict with his or her parental obligations, under proper circumstances, may be considered to have quit for good cause attributable to employment under 19 Del. C. § 3315(1)." The White Court reasoned that:
In the context of a shift change which causes a conflict with parental obligations, the affected employee must make reasonable efforts to resolve the conflict. This requirement can be satisfied by advising the employer of the conflict in an effort to reach a mutually agreeable compromise and by making reasonable efforts to obtain suitable alternative child care. The reasonableness of the employee's efforts should be evaluated in light of the relevant circumstances, including the availability of suitable child care in the employee's area, the cost of such care and the amount of time that the employer affords the employee to arrange such care.
White v. Security Link, Del. Super., 658 A.2d 619, 622 (1994) (citing Longorbardi v. Unemployment Ins. Appeal Bd., Del. Super., 287 A.2d 690, 692 (1971), aff'd, Del. Supr., 293 A.2d 292 (1972)).
Id. (citing Brainard v. Unemployment Compensation Comm'n, Del. Super., 76 A.2d 126, 127 (1950)).
Id. at 624.
Id.
The central issue in White was whether quitting because a schedule change caused child care problems could be considered leaving voluntarily for "good cause attributable to work" as required by 19 Del. C. § 3515
(1) to receive unemployment benefits. In White it was clear that the claimant had quit. In the case sub judice, the Court finds that it is unable to properly review that issue because the record below is devoid of evidence as to whether Appellant resigned or was terminated. The only thing clear in the record is that at some point Appellant no longer worked for Employer. In its decision, which was incorporated by the Board, the Referee found that Appellant voluntarily left her job with Employer without good cause. However, Appellant testified at the hearing before the Referee that she did not quit. She stated that she wanted to try to work out a mutually acceptable compromise. At the hearing before the Board, Appellant testified again that she did not quit. During the hearing before the Referee, Employer's vice president testified that Appellant "[put] in her two weeks notice" because she could not work evenings and referenced a letter Appellant later gave her before Appellant left on her last day. The Referee referred to the letter as "[Appellant's] letter giving notice" and labeled it Exhibit
Hrg.Tr., Delaware Dept. of Labor Referee, Jul. 28, 1999 at 9.
Id.
Hrg. Tr., Unemployment Insurance Appeal Bd., Sept. 29, 1999 at 13.
Hrg.Tr., Delaware Dept. of Labor Referee, Jul. 28, 1999 at 29.
2. The Court has read this letter and does not find it to be a letter giving notice of resignation. Appellant's letter, in summary, simply explains that she has a problem with the hours because of her then current child care problems and advises Employer what hours and days she is able to work. Nor does the Court find that Employer's reply letter dated March 3, 1999 constitutes an acceptance of a resignation. Employer's letter merely explains that it can accommodate Appellant's medical restrictions of eight hour days but cannot accommodate her personal restrictions of no evening work hours and no Saturdays.
Id.
The Court finds that there is not substantial evidence in the record to support that Appellant voluntarily quit with or without just cause. But neither is there substantial evidence in the record to support that Appellant was terminated from her job for good cause or not for good cause. The Court finds that this case is very fact driven but there are many facts that seem to missing from the record. The record does not project clearly the timing of events. The schedule that caused the problems for Appellant was effective February 15, 1999; at some point Appellant informed Employer through discussions and a letter to the vice president that she could only work at limited times; on March 3, 1999 via a letter Employer informed Appellant it could not accommodate the personal schedule limitations; at some point Appellant did not show up for work for evening shifts. The date Appellant last worked for Employer is not in the record. It is not clear how much longer Appellant continued to work for Employer after the March 3, 1999 letter. Nor is it clear from the record how much time Appellant was actually given in order to obtain proper child care. In addition, it is not clear from the record whether it was Appellant or Employer that severed the working relationship. In order to determine whether Appellant is entitled to unemployment benefits the circumstances of her leaving must be determined. It appears that Appellant never actually refused to work under the new schedule. Rather, Appellant testified that she simply needed some time to obtain suitable day care and her letter to Employer indicates the same. Additionally, it is not clear from the testimony that the real problem was working evenings or weekends, since Appellant had previously worked both evenings and weekends, but perhaps that the schedule changed from week to week, i.e. it was not consistent.
See White, 658 A.2d at 624. The length of time a claimant is given to obtain child care after a scheduling change is of importance pursuant to the White decision, in determining whether the claimant has made reasonable efforts to resolve child care issues.
The Board must gather the facts and analyze them in accordance with the factors set forth in White.
Hrg.Tr., Delaware Dept. of Labor Referee, Jul. 28, 1999 at 8; Hrg. Tr., Unemployment Insurance Appeal Bd., Sept. 29, 1999 at 6-8, 18-19.
See Hrg.Tr., Delaware Dept. of Labor Referee, Jul. 28, 1999 at 8, 11; Unemployment Insurance Appeal Bd., Sept. 29, 1999 at 10.
CONCLUSION
The Court does not understand how the Referee and the Board reached their respective conclusions that Appellant voluntarily quit without just cause without having the answers to the basic questions discussed above. The Court simply does not find substantial evidence in the record before it to support the Board's decision. Therefore, the Board's decision is hereby REVERSED and REMANDED and the Board is instructed to conduct a hearing to determine the facts and decide the matter consistent with the law as outlined above.
IT IS SO ORDERED. ______________ ALFORD, J.
ORIGINAL: PROTHONOTARY'S OFFICE — CIV. DIV.