Opinion
C.A. No. 99A-03-004-JOH.
Submitted: September 16, 1999.
Decided: December 13, 1999.
Appeal from a Decision of the Unemployment Insurance Appeal Board — AFFIRMED .
Ms. Jacqueline L. Brown, New Castle, DE.
H. Garrett Baker, Esq., Elzufon Austin, P.A., Wilmington, DE.
Dear Ms. Brown and Mr. Baker:
Jacqueline Brown has appealed the decision of the Unemployment Insurance Appeal Board denying her claim for benefits. The Board heard only from Brown but adopted the findings of the appeals referee, who had also found against her. The Court has determined that there is substantial evidence in the record to support the Board's and appeals referee's decisions
FACTUAL BACKGROUND
Brown worked for Staff Management, a temporary employment agency. From October 6, 1998 to November 17, 1998, she was assigned to work full time at the Sears Distribution Center near Newport. She claims she telephoned Staff Management on November 18th to indicate she could not come in due to a sick child.
Staff Management, however, offered a computer record to the appeals referee which, instead, stated, "[Brown] called today to find out if there was any work available, let us know she had another job." Brown denied saying this. According to the Staff Management witness testifying before the appeals referee, the employee who took the call and generated this computer record had no independent recollection of it. That employee did not testify in front of the appeals referee. Brown also denied saying anything on November 18th to anyone else at Staff Management that she had another job. This denial came up in connection with a letter of another Staff Management employee which was read to the appeals referred indicating Brown told that employee that she was getting another job.
Brown testified she telephoned over the next several days to indicate her child was still too ill for her to report to work. She told the appeals referee and Board that after her child was no longer ill, she called for several days inquiring if there was work for her. She testified she was told there was none. After a while, based on being told that and because Staff Management had laid off her brother, she thought she was laid off, too. This prompted her to file for unemployment benefits.
Staff Management's witness said, on the other hand, that there was work for Brown. Its representative said that on each day Brown claimed she called in and was told there was no work at Sears, there was work. Staff Management was never able to supply the number of workers Sears requested. Once she said Brown was on another job, she was put on an inactive status. Staff Management stated that she was not laid off. The appeals referee was told also that Staff Management considered her a good employee.
After hearing all of this evidence, the appeals referee found that there was continuing work for Brown and that Staff Management had shown it had work for her. The appeals referee found Brown had voluntarily left her job without good cause related to her work. This act disqualified her from benefits.
Brown appealed the appeals referee's decision to the Board. She testified but no one from Staff Management appeared at the hearing. After hearing her and reviewing the record before the appeals referee and his decision, the Board upheld the appeals referee's decision.
STANDARD OF REVIEW
On an appeal from the Board, this Court's role is to determine whether the Board's conclusions are supported by substantial evidence and are free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Questions of conflict in testimony and witness' credibility are resolved by the fact finder, be it the Board or the appeals referee, and not the Court. When the Board affirms the appeals referee's decision after taking additional evidence, the Court relies upon the appeals referee's determination for the findings of fact and conclusions of law.
General Motors v. Jarrell, Del.Super., 493 A.2d 978, 980 (1985).
Histed v. E.I. duPont De Nemours Co., Del.Supr., 621 A.2d 340, 342 (1993).
Air Mod Corp. v. Newton, Del.Supr., 215 A.2d 434, 438 (1965).
Boughton v. Division of Unemployment Ins., Dep't. of Labor, Del.Super., 300 A.2d 25, 26 (1972).
DISCUSSION
Brown's first argument is that the Board's decision should be reversed because Staff Management's witness had no recollection of her terminating her employment and the Staff Management employee making the computer record had no recollection of the conversation that was documented. Brown contends that the system was mistakenly documented. Furthermore, she argues that an answering machine message terminating employment would be more significant than typical messages and, thus, likely to be remembered. Therefore, she claims the employee's recollection indicates a likelihood that perhaps the resignation did not occur and that a mistake was made in documenting this conversation on the computer system. This is an argument for the fact finder, in this case the Board and the appeals referee, and not the Court, as they address credibility issues.Brown's second argument revolves around the testimony before the appeals referee regarding available employment with Sears. The Staff Management representative testified that for the week beginning Monday, November 16, 1998, it was unable to supply the number of workers Sears requested. Brown says, however, that she made her inquiries for employment during the week of November 23, 1998, when she was available for work, not the week of November 16th. She argues that the information provided by Staff Management regarding work availability was for the week that she was unavailable for work due to her child's illness. The Staff Management representative, however, testified that Sears needed workers for the week of November 23rd and thereafter. Again, this is an argument addressed to the fact finder, not this Court.
Next Brown questions the authenticity of the letter written by another Staff Management employee which was read into the record at the hearing before the appeals referee. That letter states, "[i]n November of `98 [Brown] approached me about another job she was offered and that she would be leaving Staff Management soon. It was shortly after this conversation that [Brown] stopped coming to work." Brown suggests that the letter was not written by a Staff Management employee but was written by someone else to bolster Staff Management's case. There is no evidence indicating this letter was not written by an employee of Staff Management. Once again, this contention is not reviewable on appeal.
The Court is troubled, however, by an apparent reliance of the fact finder on hearsay evidence. The appeals referee and the Board are cautioned again not to give too much weight in their decisions to such evidence covering central issues in a case. Barbour v. Unemployment Ins. App. Bd., Del.Super., C.A. No. 89A-MR-4, Herlihy, J. (October 26, 1990).
Brown's fourth argument is that she should receive unemployment compensation because, due to Staff Management's mistake, she was wrongly placed on "inactive" status and, thus, was not considered available for employment. Staff Management's witness stated that when an employee voluntarily quits, "inactive" is the correct designation, therefore, because she voluntarily quit, there was no mistake made by documenting her as "inactive." Whether it was a correct or erroneous entry is for the fact finders who, in this case, chose to accept the computer entry as more credible.
Brown's final and probably strongest argument that she did not voluntarily resign on November 18th is the fact that she continued to call her employer daily after that date. She contends that calling and continuing to request employment contradicts any notion that she voluntarily resigned. This, she says, should indicate conclusively to this Court that she did not voluntarily resign and this was a mistake made by Staff Management. Furthermore, Brown argues that if she were documented in the computer system as voluntarily resigning, but she continued to call in to request work, why did Staff Management not notify her of available work. Because it failed to do this, the fault lies with Staff Management. This arguable inconsistency was known to the appeals referee and the Board. Both chose to accept Staff Management's testimony, however, that there was work at Sears for her for which she did not show up supporting the conclusion she had quit. This Court finds there is substantial evidence to support the decision of the appeals referee and the Board which determined that Brown voluntarily left her employment for reasons unrelated to her job.
CONCLUSION
For the reasons stated herein, the appeal from a decision of the Unemployment Insurance Appeal Board is AFFIRMED.
IT IS SO ORDERED.