COLE v. GHR ENTERPRISES, K10A-08-008 (RBY)

Full title: LETITIA COLE, Appellant, v. GHR ENTERPRISES, INC., Appellee

Court: Superior Court of Delaware, Kent County

Date published: May 11, 2011

C.A. No. K10A-08-008 (RBY) (Del. Super. Ct. May. 11, 2011)

Opinion

C.A. No. K10A-08-008 (RBY).

Submitted: March 16, 2011.

Decided: May 11, 2011.

Upon Consideration of Appeal from the Decision of the Unemployment Insurance Appeal Board.

AFFIRMED.

Letitia Cole, pro se.

GHR Enterprises, Inc., pro se.

OPINION AND ORDER

YOUNG, J.Page 2

SUMMARY

Appellant Letitia Cole ("Cole") appeals from the Unemployment Insurance Appeal Board's ("UIAB or the Board") decision which held that her appeal before the Board was untimely, and, therefore, the Board did not have jurisdiction to hear the merits of her case. For the reasons set forth below, the Board's decision is AFFIRMED.

FACTS

This action arises out of a determination by the Claims Deputy on March 17, 2010, that Cole was reduced from full-time employment to partial unemployment. Cole filed a timely appeal and a hearing was scheduled before an Appeals Referee on May 13, 2010. Notice of the hearing was mailed to the parties' addresses. No mail was returned to the Department of Labor as "undeliverable" by the United States Postal Service. On May 19, 2010, the Appeals Referee reversed the Claims Deputy's determination, finding that Cole was not a partially unemployed person and was ineligible for the receipt of benefits.

The decision was mailed to Cole's last address of record. It was not returned as undeliverable. The final day to appeal to the UIAB was May 29, 2010. Cole did not file her appeal to the UIAB until July 13, 2010, when she personally delivered the appeal. The Board held that Cole appeal was approximately seven weeks late. It, therefore, declined to accept the late appeal. 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.¹ Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."² On appeal, the court does not weigh evidence, determine questions of credibility, or make its own factual findings.³ If there is substantial evidence and no mistake of law, the Board's decision must be affirmed.⁴

Pursuant to 19 Del. C. § 3314(2) ⁵, an employee is ineligible to receive unemployment benefits if he or she has been terminated for just cause.⁶ 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."⁷ 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."⁸ 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."⁹

5 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 . . ."

6 See also Jackson, 2008 WL 555918, at *2 (citing 19 Del. C. § 3314(2)).

7 Jackson, 2008 WL 555918, at *2 ( quoting Krouse v. Cape Henlopen Sch. Dist., 1997 WL 817846, at *3 (Del. Super. Oct. 28, 1997)).

8 MRPC Fin. Mgmt. LLC v. Carter, 2003 WL 21517977, at *4 (Del. Super. Jun. 20, 2003).

9 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 Cole's appeal was untimely. The Court's review is twofold: (1) whether 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.¹⁰

On August 31, 2010, Cole filed this appeal pro se, seeking review from this Court on three grounds: (1)her letter was sent to the wrong address and she never received notice of when to appeal; (2) she has evidence and a witness who can support the contention that she was hired full time; (3) she deserves a chance now to show further that she was hired full time. The employer and appellee, GHR Enterprises, Inc., did not hire an attorney for this appeal. It rests on the record.

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."¹¹ 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 in those cases where the interest of justice would not be served by inaction."¹²

11 19 Del. C. § 3318(c); 19 Del. C. § 3220.

12 19 Del. C. § 3318 (c).

In this case the Board declined to consider Cole's appeal of the Appeals Referee's decision denying her unemployment benefits. The Board noted that the Referee's decision was mailed to Cole's address on May 19, 2010, and was not returned as undeliverable. Cole did not appeal to the UIAB until July 13, 2010, seven weeks too late, as determined by the receipt for personal delivery signed by an Agency Representative. The Board concluded that Cole had adequate notice and opportunity to be heard in satisfaction of her due process requirements, making the appeal was untimely. Thus, the Appeals Referee's decision was final.

Cole's contention that she did not receive notice in the mail is vague and uncorroborated by evidence. The record reflects that the Referee's decision was properly mailed on May 19, 2010. It was not returned as "undeliverable." Furthermore, there is no evidence of any departmental error by an employee. "Properly addressed mail is presumed to be received by the addressee."¹³ Cole has not presented any basis for reversing the UIAB's decision.

13 Robledo v. Stratus and Unemployment Insurance Appeal Board, 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

Based on the above findings, the Board's determination that notice was properly mailed to Cole, and that the appeal was untimely, was based on substantial evidence. The Board properly held that 10 Del. C. § 3318 c) created a jurisdictional bar of Cole's untimely appeal. Furthermore, the Board correctly found that the facts in this case do not involve circumstances so severe as to require it to assume jurisdiction pursuant to 10 Del. C. § 3320. For the foregoing reasons, the Board's decision is AFFIRMED.

SO ORDERED.