Opinion
C.A. No. N10A-03-008 MMJ.
Submitted: April 14, 2011.
Decided: June 21, 2011.
Appeal from the Unemployment Insurance Appeal Board.
Lucille Johnson, Pro Se, New Castle, DE, Appellant.
Wendy K. Voss, Esquire, Lindsay O. Clizbe, Esquire, Potter Anderson Corroon, LLP, Attorneys for Appellee Regal Heights Healthcare.
Katisha Fortune, Esquire, Department of Justice, Attorney for Unemployment Insurance Appeal Board.
MEMORANDUM OPINION
FACTUAL AND PROCEDURAL CONTEXT
Claimant Lucille Johnson was employed by Regal Heights Healthcare from September 2004 to August 2009 as a Certified Nursing Assistant.
On January 16, 2009 and March 11, 2009, Regal issued written warnings to Claimant concerning eleven instances of tardiness between November 2008 and February 2009.
Before June 2009, Claimant worked two double shifts — sixteen hours per shift — every weekend. On June 6, 2009, Claimant requested that her hours be reduced to two double shifts every other weekend. Because Claimant's requested schedule was not available, Regal assigned her two single shifts — eight hours per shift — every other weekend.
As a result, on July 5, 2009, Claimant applied for partial unemployment insurance benefits.
On July 6, 2009, following several additional instances of tardiness in May and June 2009, Regal informed Claimant that she would be suspended for three days. Regal suspended Claimant on July 18, July 19, and August 1, 2009.
On August 2, 2009, Claimant called off of work. On August 4, 2009, Regal terminated Claimant.
Also on August 4, 2009, a Claims Deputy ruled on Claimant's July 5, 2009 application for partial unemployment benefits. The Deputy found that Claimant is not unemployed pursuant to 19 Del. C. § 3302(17) because she requested that her hours be reduced. Claimant appealed to an Appeals Referee.
On September 15, 2009, the Referee affirmed the Deputy's decision. The Referee found that, because Claimant requested that her hours be cut back, she cannot claim that she is unemployed. Claimant appealed to the Unemployment Insurance Appeal Board ("Board").
On November 4, 2009, the Board affirmed the Referee's decision. The Board found that, "[b]ecause [] Claimant was working reduced hours at her own request and had been suspended due to her own misconduct, and the employment relationship had not been severed, . . . Claimant was not an unemployed person . . ." under Section 3302(17).
On December 24, 2010, Claimant filed a pro se appeal of the Board's decision to this Court. Claimant argues that she did not request that her hours be cut to the extent that they were, and therefore, she is entitled to partial unemployment benefits.
STANDARD OF REVIEW
On appeal from the Unemployment Insurance Appeal Board, the Superior Court must determine if the Board's factual findings are supported by substantial evidence in the record and free from legal error. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court must review the record to determine if the evidence is legally adequate to support the Board's factual findings. The Court does not "weigh evidence, determine questions of credibility or make its own factual findings." If the record lacks satisfactory proof in support of the Board's finding or decision, the Court may overturn the Board's decision. On appeal, the Superior Court reviews legal issues de novo.ANALYSIS
"`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. . . ."Claimant was not unemployed pursuant to Section 3302(17). Claimant requested that her employment be limited to every other weekend. Regardless of whether Regal afforded Claimant two double shifts every other weekend or two single shifts every other weekend, there was twelve-day periods where Claimant would not perform services for Regal. Under other circumstances, this twelve-day period might constitute "unemployment" pursuant to Section 3302(17). However, because working every other weekend became Claimant's customary schedule at her request, she was not unemployed. Regal's decision to assign Claimant two single shifts every other weekend, rather than two double shifts every other weekend, does not render her unemployed.
See Spicer v. Spicer Unlimited, 2005 WL 914469, at *1 (Del. Super.) (The claimant, who worked just one day per week, was not unemployed, because she was "working her customary hours for that time of the year.").
CONCLUSION
Claimant was not unemployed pursuant to Section 3302(17) because she requested that her employment be limited to every other weekend, and therefore, she is not entitled to partial unemployment benefits. THEREFORE, the Court hereby AFFIRMS the Board's decision in its entirety.
Because Claimant filed for partial unemployment benefits on July 5, 2009, the Court need not consider whether Claimant was unemployed when Regal suspended her on July 6, 2009.
IT IS SO ORDERED.