Opinion
C.A. No. K09A-12-003(RBY).
Submitted: February 2, 2011.
Decided: April 28, 2011.
Upon Consideration of Appellant's Appeal of the Decision of the Unemployment Insurance Board. AFFIRMED.
Mileonce Cherazard, pro se.
Laurence V. Cronin, Esq., and Stephanie S. Habelow, Esq., Smith, Katzenstein Furlow, LLP, Wilmington, Delaware for Appellee. Young, J.
SUMMARY
Appellant Mileonce Cherazard ("Cherazard") appeals the Unemployment Insurance Appeal Board's ("UIAB or the Board") denial of his unemployment benefits on the basis of his wrongful termination from Perdue Farms. For the reasons set forth below, the Board's decision is AFFIRMED.
FACTS
Cherezard was hired by Perdue on February 9, 2009 to work in Perdue's chicken deboning department. As part of his employment retention, Cherezard filled out two medical questionnaires regarding his health on February 3, 2009.
The first form was titled "Post offer Employment Medical History and Physical Examination." Cherezard indicated on this form that he had never been injured at work and had never experienced a work-related illness. By signing this form, Cherezard certified that "all medical information supplied verbally and in writing will be true in all aspects." Additionally, by signing he understood that, if after he was hired, any of the information he provided on the medical questionnaire was found to be false, he could be suspended and/or dismissed.
On the second form "Employment Medical History Questionnaire," Cherezard indicated that he had no prior injury or pain to his hands or wrist, swelling or surgery and that he has no prior tendon laceration. At the hearing before the Appeals Referee, two Perdue representative employees, Chris DelCastillo ("DelCastillo") and Barbara Jester ("Jester") testified. The testimony presented at the hearing recited the facts below.
On May 13, 2009, Cherezard complained of pain in his left index finger during his shift. Cherezard's team leader took him to Perdue's Wellness Center for treatment. While at the Wellness Center, Cherezard revealed to the staff there that he had a previous injury to his left hand from previous employment. This was not disclosed on the two medical questionnaires which were executed by Cherezard. Cherezard contends that the translator never asked him any questions relating to his prior injuries.
While Cherezard was at the Wellness Center he allegedly stated that he could not work in cold temperatures, due to his injury to his left index finger previously caused while cutting sugar cane at a previous place of employment. Cherezard allegedly admitted that the tendon in his left index finger was cut. Furthermore, Cherezard told Jester that he was employed elsewhere since his days cutting sugar cane, but that those other jobs had always been in warm environments.
On May 13, 2009, Cherezard was suspended for two days pending investigation into the failure to disclose a prior injury. Cherezard signed a form entitled "Disciplinary Record", indicating that he was being suspended from work from May 14, 2009 to May 16, 2009. The reason for the suspension, as indicated on the form, was for "failure to report injury to left index finger during physical process."
Cherezard returned to work at Perdue on May 18, 2009. Perdue completed its investigation, determining that Cherezard falsified the medical questionnaires he filled at the start of his employment. On that same day, May 18, 2009, Perdue terminated Cherezard. Cherezard was given a second disciplinary record form stating that he had been terminated, explaining the reason for his termination which he refused to sign. Perdue terminated Cherezard in accordance with the policy outlined on the company's medical questionnaire that, if hired, employees may be suspended and/or terminated if the information they provide in the medical questionnaires is later found to be false.
On September 9, 2009, an Appeals Referee for the Department of Labor's Division of Unemployment Insurance Appeals reversed the claims deputy's decision which had found that Cherezard was entitled to unemployment benefits. The Appeals Referee found that Perdue had just cause to terminate Cherezard, and that he had falsified the medical questionnaires.
On November 11, 2009, the UIAB considered Cherezard's appeal of the Appeals Referee's decision. The UIAB did not hold a hearing, declining to consider Cherezard's appeal as it was filed two weeks after the deadline to make a timely appeal. As such, the Board found any right to a hearing to be barred. This appeal followed.
STANDARD OF REVIEW
The scope of review of findings of the Unemployment Insurance Appeal Board is limited to a determination of whether there was substantial evidence sufficient to support the Board's findings. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." On appeal, the Court does not weigh evidence, determine questions of credibility, or make its own factual findings. If there is substantial evidence and no mistake of law, the Board's decision must be affirmed.
Unemployment Ins. Appeal Bd. of Dep't of Labor v. Duncan, 337 A.2d 308, 308-09 (Del. 1975).
Majaya v. Sojourners' Place, 2003 WL 21350542, at *4 (Del. Super. June 6, 2003).
Id.
City of Newark v. Unemployment Ins. Appeal Bd., 802 A.2d 318, 323 (Del. Super. 2002).
Pursuant to 19 Del. C. § 3314(2) , an employee is ineligible to receive unemployment benefits if he or she has been terminated for just cause. The term "just cause" is defined as a "willful or wanton act in violation of either the employer's interests, or of the employee's duties, or of the employer's expected standard of conduct." Willful or wanton conduct is "that which is evidenced by either conscious action, or reckless indifference leading to a deviation from established and acceptable workplace performance." Just cause exists where "an employee has violated an employer's policy or rule, particularly where the employee received prior notice of the rule through a company handbook or other documentation."
The statute provides: "An individual shall be disqualified for benefits . . . [f]or the week in which the individual was discharged from the individual's work for just cause in connection with the individual's work and for each week thereafter until the individual has been employed in each of 4 subsequent weeks . . ."
See also Jackson, 2008 WL 555918, at *2 (citing 19 Del. C. § 3314(2)).
Jackson, 2008 WL 555918, at *2 ( quoting Krouse v. Cape Henlopen Sch. Dist., 1997 WL 817846, at *3 (Del. Super. Oct. 28, 1997)).
MRPC Fin. Mgmt. LLC v. Carter, 2003 WL 21517977, at *4 (Del. Super. Jun. 20, 2003).
Toribio, 2009 WL 153871, at *2 (citing Mosley v. Initial Sec., 2002 WL 31236207, at *2 (Del. Super.Oct. 2, 2002)).
DISCUSSION
The issue before this Court is whether the Board had substantial evidence to determine that Cherezard's appeal was untimely. The Court's review is twofold: (1) if there are facts to support the finding that the appeal was untimely; (2) whether the Board abused its discretion by not exercising, sua sponte, its power to review the record despite the untimely appeal.On August 31, 2010, Cherezard filed this appeal pro se, seeking review from this Court on three grounds: (1) he was wrongfully discharged and can perform the job; (2) he did not receive the mail timely; (3) three months have passed without receiving benefits.
Under Delaware law, a decision of the Appeals Referee affirming, modifying or reversing a decision of the claims deputy becomes final "unless within 10 days after the date of notification of mailing of such decision further appeal is initiated pursuant to § 3220 of this title." The UIAB in its discretion may hear an untimely appeal if "there has been some administrative error on the part of the Department of Labor which deprived the claimant of the opportunity to file a timely appeal, or where the interest of justice would not be served by inaction."
19 Del. C. § 3318(c); 19 Del. C. § 3220.
In this case the Board declined to consider Cherezard's appeal of the Appeals Referee's decision denying him unemployment benefits because it was untimely. The Board noted that the Referee's decision was mailed to Cherezard's address, and was not returned as undeliverable. Additionally, the Board found that the Referee's decision indicated the last day to file an appeal was September 19, 2009, and that Cherezard had until Monday, September 21, 2009 to file a timely appeal. The Board concluded that Cherezard had adequate notice and opportunity to be heard in satisfaction of due process requirements, and as such the appeal was untimely, which makes the Appeals Referee's decision final.
Cherezard's contention that he did not receive the mail timely is unsupported and uncorroborated by evidence. The record reflects that the Referee's decision was mailed on September 9, 2009. Hence, Cherezard had until September 21, 2009 to file an appeal. The Board found that Cherezard had not alleged he did not receive the Referee's decision or any other departmental error that would cause delay in filing his appeal. "Properly addressed mail is presumed to be received by the addressee." Cherezard has not presented any basis for reversing the UIAB's decision.
Robledo v. Stratus and Unemployment Ins. Appeal Bd., 2001 WL 428684, at *1 (Del. Super. Jan. 25, 2001) (citing Brown v. City of Wilmington, 1995 WL 653460, at *3 (Del. Super. Sept. 21, 2001); see also Moore v. Creative Home Solutions, 2010 WL 2977985, at *1 (Del. Super. May 11, 2010); Ramney v. Wal-Mart Stores East LP, 2009 WL 2507173, at *1 (Del. Super. July 7, 2009).
CONCLUSION
In the case at hand the Board found that Cherezard's appeal was untimely. The record supports this finding as the appeal was filed past the deadline. The issues Cherezard raises are not sufficient to demonstrate that the Board lacked sufficient evidence to deny his appeal for the denial of unemployment benefits. The UIAB did not err in denying Cherezard's appeal, and the decision is supported by substantial evidence.
For the foregoing reasons, the Board's decision is AFFIRMED.
SO ORDERED.