Opinion
C.A. No. 07A-04-002 WLW.
Submitted: December 18, 2007.
Decided: March 18, 2008.
Upon Appeal of a Decision of the Unemployment Insurance Appeal Board.
Reversed and Remanded.
Humberto Quinones, pro se.
Access Labor, pro se.
ORDER
On April 10, 2007, pro se Appellant Humberto R. Quinones ("Appellant") appealed to this Court to reverse the decision of the Division of Unemployment Insurance Appeal Board ("the UIAB" or "the Board") affirming the denial of unemployment insurance to Appellant by the Division of Unemployment Insurance ("the Division"). After reviewing the record, the Court finds that the Board has failed to sufficiently inquire into the facts and provide the necessary rationale that would allow the Court to find for substantial evidence that supports the Board's findings of fact and conclusions of law. Therefore, the Court reverses and remands the case back to the UIAB for further inquiry and analysis.
BACKGROUND
Appellant is a resident of Dover, Delaware and began working for Wyoming Concrete via the job placement agency, Access Labor, on March 5, 2006. Wyoming Concrete was very pleased with his work, and in turn, Access Labor was pleased with him as well. Wyoming Concrete wanted to hire Appellant for a full time position, but instead had to lay off its entire work force. As a result, Appellant ended his employment there on July 21 where he was earning $7.50 an hour. Appellant filed a claim for unemployment benefits the next day. Three days later, Access Labor offered Appellant new employment that was for full time work at $8.00 an hour with IDS, for which he would be working garbage pick-up in Felton. The shift would start at 5 a.m. and complete at 5 p.m, Monday through Friday — adding 10 hours more per week that he had worked previously. Appellant was excited, accepted the position and indicated that he would be there the following morning. The record is unclear as to whether Appellant conditioned his acceptance on whether his father being able to drive him to and from work. Appellant testified that he depends on his father for transportation since he does not hold a drivers license. He asserted that Access Labor knew this.
The next morning, Access Labor's agent, Edward Hawkins, learned that Appellant was not at work at 5 a.m. The events that led up to this time and soon thereafter are contested: who called whom and at what time; whether Mr. Hawkins hung up on Appellant; whether Appellant was informed that transportation could be provided to him; and whether the working conditions of trash pickup makes the position unfit due to Appellant's illness. On August 18, the Division Claims Deputy found that Appellant refused suitable work and was consequently disqualified from benefits.
Also known as "Chip."
Appellant appealed to the Division's Referee, and then to the UIAB, both of whom denied benefits. Hearings were held before each. At the first hearing, Mr. Hawkins represented Access Labor. Mr. Hawkins testified that on the morning Appellant was to start the IDS job, he called to inform Access Labor that his father could not drive him as Felton was too far. He also testified that Appellant was a good worker and that if Appellant were to call him tomorrow, he would offer him work. The issue for Appellant is that he failed to go to work. When Appellant applied for work through Access Labor he did not indicate that he had any restrictions with working that would impact his ability to accept any job offers.
Humberto R. Quinones v. Access Labor, No. 438805 (Appeals, Div. Of Unemployment Ins., September 12, 2006) (Candie M. Dibble, Appeals Referee). Upon reviewing the decision and transcript, the Court notes that it appears that one referee authored the decision (Ms. Dibble) while another appeared at the hearing (Ms. Stephanie K. Parker).
Regarding transportation, Mr. Hawkins testified that Access Labor provides transportation service to everyone, but made an exception for Appellant whose father drove him instead, and it seemed to work out just fine that way. Access Labor's transportation service is dependant upon getting to Access Labor's office for pick up and drop off and a deduction is taken from the pay. The record reveals that the opportunity for transportation was raised at the start of Appellant's relationship with Access Labor, back in March of 2006, but is silent as to whether the topic was ever raised again.
Mr. Hawkins testified that Appellant never called back the afternoon of the offer to say that he did not have transportation. He asserts later in his testimony that it was he, not Appellant, who made the phone call to Appellant in the morning that Appellant was to begin his job with IDS and that is how he found out there was a transportation issue. Appellant testified that he called Access Labor at 4 a.m., did not get through, no answering machine picked up to allow for him to leave a message and that he called later in the morning and connected with Mr. Hawkins. He then informed Mr. Hawkins that his transportation plans fell through. Appellant testified that he wanted to ask Mr. Hawkins about other possible employment opportunities but that Mr. Hawkins hung up on him before he could do so. Appellant further testified that Mr. Hawkins would not work with him regarding transportation.
He previously stated that Appellant called him that morning to tell him he could not arrange for transportation.
Later Appellant testified that this conversation actually occurred the afternoon before, after the office closed at 4 p.m. However, this fact does not align with the rest of the testimony, and therefore the Court agrees that this is not credible.
Appellant testified that he wanted to do the job, but since he was not informed of the offer to work the IDS job until about 2 or 3 in the afternoon of the 25th, and the office closes at 4 p.m., he was not able to confirm his transportation until much later that evening when his father came home. Therefore, it was too late to inform his contact that day that he would be unable to get to his new job the next morning at 5 a.m. He testified that in the conversation of the 25th, that he accepted the position but stated that he needed to talk to his father about transportation. It appears that without transportation, he had indicated that he would need to be picked up at his house. He asserts that Mr. Hawkins then indicated that none would be provided, but there was no further discussion along that line., Mr. Hawkins asserts that this portion of the conversation occurred on the 26th (the day Appellant was to begin the IDS job).
Appellant also testified that he actually did not know where Felton was at the time of the offer, that Mr. Hawkins had tried to explain the distance to him, and concedes that he never fully grasped the distance until he spoke with his father.
The testimony is somewhat confusing. For example, in one moment, Appellant testified that Mr. Hawkins hung up on him in the morning when he told him he could not get to the position because of transportation issues. In another moment, he testifies that this conversation occurred during the call where he accepted the position but then inquired about transportation opportunities. The Court finds that resolving these contradictions one way or another, by themselves, should not lead to Appellant's disqualification of benefits.
Appellant also testified that the position was unfit for him because of his illness. Appellant testified that he has Crohn's of the ileum (a type of Crohn's Disease) which requires him to have ready access to bathroom facilities. In contrast to the Wyoming Concrete position, riding on a garbage truck did not permit him emergency access to bathrooms. He testified that he did not communicate this immediate concern to Mr. Hawkins because he wanted to try the job first, and see if he could handle it. He said that everyone knew about his illness but that he did not want to bring it up specifically because he believes it is private and personal. Upon learning that his father would be unable to provide his transportation, he realized that he should face the fact that the job was not a proper fit.
Mr. Hawkins asked Appellant why he stopped coming to the office that morning or thereafter to learn of work opportunities, like he had previously. Appellant's reply indicated that he believed he was no longer invited to come to the office in the mornings since he could not take the job in Felton, Mr. Hawkins hung up on him and did not pick up the phone again when Appellant called back. Finally, Appellant explained that he had found other work three weeks prior to this hearing and therefore sought only a few weeks of unemployment claims.
The Referee cited Title 19 Delaware Code Section 3314(3) and found that Appellant had refused a suitable offer of employment. In the Referee's rationale, he stated:
The claimant argued that the offer was not suitable due to his illness and his lack of transportation. However, when he accepted the assignment the day prior, he never mentioned either of these reasons as a factor for not accepting the work. Instead, he informed the employer that he could perform the job. Further, since the claimant testified that he would have done the job if he had the transportation, this tribunal will not consider the claimant's illness as a bona fide reason for the assignment not being suitable for him. Lack of transportation is personal to the claimant and is not a valid reason for refusing to accept a suitable offer of work. Therefore, this tribunal finds the claimant failed to accept a suitable offer of employment and is disqualified from the receipt of unemployment benefits.
Thus, the Claims Deputy's decision was affirmed, and the Appellant remained disqualified from the receipt of benefits for refusing a suitable offer of employment pursuant to Title 19 Delaware Code Section 3314(3).
Appellant appealed to the UIAB who affirmed the decision. The Board reviewed the case on October 25, 2006 and found that, in addition to receiving an incomplete waiver form (it was not signed and dated), the Claims Deputy had been unclear as to whether there was "good cause" to disqualify Appellant from benefits. They remanded the matter sua sponte for the Deputy to confirm this finding. The Deputy seems to have backdated the waiver to August 18, 2006 and confirmed that there was good cause at the time she prepared the waiver.
Humberto R. Quinones v. Access Labor, No. 438805 (Appeal Board, Div. Of Inemployment Ins., March 20, 2007).
UC-119C Waiver, pursuant to 19 Delaware Code 3320.
19 Del.C. 3317(b).
At the second UIAB hearing, in addition to the evidence provided in the first one, Appellant testified that the 5 a.m. to 5 p.m. shift hours were substantially different from his previous job, which has been from 1 p.m. to 12 a.m. He was willing to switch shifts but asserted that he had told Access Labor that he had to check first on his transportation availability, and that Access Labor had suggested other alternatives on this issue. Appellant reasserted that when he called to communicate that he could not get to his new position and asked about other opportunities, the contact, Mr. Hawkins, hung up on him, and when Appellant tried to call back, no one picked up, and the answering machine did not pick up. This time he asserted that Mr. Hawkins also cursed him out and Appellant believed that he had been terminated. He asserted that on the day of the phone call, that he was feeling better (regarding his Crohn's Disease) but was concerned that the change in shifts would disrupt that trend.
Dino Uniaro, Access Labor's representative, appeared at the UIAB hearing instead of Mr. Hawkins because Mr. Hawkins had now left Access Labor. At the Board hearing, he testified that he is disadvantaged in his representation of this case since he was absent for a two month period during which the events of this action occurred. As a consequence, he was standing on the previous record. He testified that he has no personal knowledge of the matter before the Board. He said that Mr. Hawkins had not said anything to him about cursing at Appellant.
The transcript states the Company Representative, Dino Buinano, appeared.
The Board found that "Chris" had provided a valid offer and Appellant a valid acceptance with all the terms required to form a contract. That lacking medical confirmation of Appellant's Crohn's Disease and failing in his responsibility to arrange his own transportation, Appellant failed to meet his burden of leaving his position for good cause. On this basis, the Board affirmed the Referee's decision and denied Appellant benefits. Of note, the Board's findings of fact included that the position for which Appellant was reasonably fit was driving the trash truck, rather than picking up garbage.
The Board likely meant to state "Chip", also known as Mr. Hawkins.
In his opening brief, Appellant described further the difficulties of suffering from Crohn's Disease, the pain, weakness, and the daily medication and its side effects. He provided his doctor's name and telephone number. He also said that his employer did know about his illness and therefore provided false testimony during the hearing. Finally, he reiterated the fact that he does not have a driver's license and does not have a commercial driver's license, and therefore would be unable to driver a commercial vehicle such as a trash truck.
Appellant also stated in his opening brief that he believes it is unlawful for him to be a passenger of the garbage truck without a valid CDL drivers license. Title 21 Delaware Code § 2601 et seq. does not require passengers of commercial vehicles to hold a CDL drivers license.
STANDARD OF REVIEW
The scope of review for an appeal of an UIAB decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. Substantial evidence equates to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." On appeal, this Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. Instead, this Court reviews the case to determine if the evidence is legally sufficient to support the Board's factual findings.DISCUSSION
The Board has cited to a different provision of the statute to support its decision than the one cited by the Claims Deputy and the Referee, requiring a different burden that Appellant must meet. The Board cites to Title 19 Delaware Code § 3314(1), whereas the other two decisions were based on Title 19 Delaware Code § 3314(3). Section 3314(1) provides that an individual will be disqualified from benefits:
(1) For the week in which the individual left work voluntarily without good cause attributable to such work . . . However, if an individual has left work involuntarily because of illness, no disqualification shall prevail after the individual becomes able to work and available for work and meets all other requirements under this title, but the Department shall require a doctor's certificate to establish such availability . . .
19 Del.C. § 3314(1).
Thus, the issue is whether there is substantial evidence to support the Board's finding that there was a valid contract between Access Labor and Appellant for the IDS job, and if so, whether Appellant left for good cause.
To form a valid contract, there must be a "bargain in which there is manifestation of mutual assent to the ex change and consideration," also known as the "meeting of the minds." Delaware has adopted the mirror-image rule, requiring that the "acceptance be identical to the offer." Additionally, to be enforceable, the contract must contain all material terms. Here, Appellant testified that his acceptance was conditioned on his need to consult with his father regarding transportation and therefore was not a mirror image of the offer. Mr. Hawkins testified that Appellant simply stated that he would be there, which would satisfy the mirror image rule. The Board does not appear to have weighed this testimony. Regardless, the Court finds the evidence insufficient to establish that there was a meeting of the minds. Even if the Appellant unconditionally accepted, without a single day of work and nothing but an oral contract between a company experienced in job placement and a contractually inexperienced individual, the argument that the consideration requirement is satisfied is a stretch. Without consideration, no contract was formed, and therefore Appellant did not leave his job voluntarily without good cause. Based on the record, the Court does not find substantial evidence to support the findings of fact and conclusions of law by the Board. Of note, the Court has not found any precedence supporting the use of § 3314(1) when no day of work or portion of has been completed.,
Ramone v. Lang, 2006 WL 905347, *10 (Del.Ch., April 03, 2006) ( citing Wood v. State, 815 A.2d 350, 2003 WL 168544 at *2 (Del., January 27, 2003) ( citing Restatement (Second) of Contracts § 18 (1981))).
Ramone at *10 ( citing Friel v. Jones, 206 A.2d 232, 233-34 (Del. Ch. 1964), aff'd, 212 A.2d 609 (Del. 1965); PAMI-LEMB I Inc. v. EMB-NHC, L.L.C., 857 A.2d 998, 1015 (Del.Ch. 2004)).
Ramone at *10 ( citing In Matter of Beaty, 1996 WL 560183, at *7 (Del.Ch. Sept. 30, 1996) ( quoting M.F. v. F., 172 A.2d 274, 276 (Del. Ch. 1961))).
Even if there was a valid contract, neither the Referee nor the Board mentioned that Appellant should have provided a doctor's certification until the Board's decision, which cited § 3314(1) for the first time. Appellant was not given notice that the Board would be reviewing the decision under a different standard from the one under § 3314(3) and the Court finds that if the Board believes Appellant is disqualified under § 3314(1), it needs to provide a better basis for this new position and why it believes § 3314(3) does not apply.
For example, in Clark v. Loyal Order of Moose, 2007 WL 1519401 (Del.Super., April 9, 2007), claimant quit after 10 years on the job; in Bright v. Delaware River Stevedores, Inc., 2005 WL 2249597 (Del.Super., September 12, 2005), claimant had worked for 5 years; and in Bordley v. State Dept. of Labor, 1985 WL 635625 (Del.Super., September 04, 1985), claimant had worked for "many years." Bordley at *1.
Albeit, issuing unemployment insurance benefits is strictly statutory. Parsons v. Atlantis Industries, Inc., 2007 WL 1519529 *2 (Del.Super., May 7, 2007).
If Appellant did not voluntarily leave his job, then is he disqualified from benefits under Title 19 Delaware Code § 3314(3)? Section 3314(3), in relevant part, states that an individual will be disqualified from benefits:
The Board switched the provision on which to base its decision from § 3314(3) to (1) without providing an explanation. The burdens under subsections (3) and (1) differ.
(3) If the individual has refused to accept an offer of work for which the individual is reasonably fitted . . .
Section 3314(3) allows an illness to render a claimant unfit for the job and is silent as to whether claimant must provide a doctor's certificate as proof of the illness, unlike § 3314(1). For example, he testified in both hearings about his Crohn's Disease. Appellant's previous position at Wyoming Concrete allowed him ready access to bathroom facilities, whereas the IDS job, for which he would be picking up trash, would not have the same immediate access, making him unfit for the new job. The statute is silent as to whether Appellant had a duty to disclose this information before claiming that he is unfit for a position. His previous position gave him no reason to broadcast his condition. Furthermore, Appellant testified that his employer knew about his illness, as well as everyone else. This area of the record is too sparse for the Court to find substantial evidence to support the Board's findings of facts and conclusions of law.
From the decisions of the Claims Deputy and the Referee, Appellant knew the reasons for which he was disqualified and provided relevant testimony to support his burden under § 3314(3). Granted, Appellant could have provided a doctor's certificate or a witness to support his argument to meet this burden too, but given that he is pro se, a hint from the Claims Deputy, Referee or UIAB that this is what they wanted to see seems fair. The "Court may exhibit some degree of leniency toward a pro se litigant in order to see that his case is fully and fairly heard." Jackson v. Unemployment Ins. Appeal Bd., 1986 WL 11546, *2 (Del.Super., September 24, 1986).
Appellant also testified that because the new job was located farther away and during different shift times (5 a.m. to 5 p.m. compared to 1 p.m. to 12 a.m.) that he was now unable to provide his own transportation. He testified that he brought this up with his employer and that his employer was unwilling to work with him on this issue. Section 3314(3)(c) provides that an individual may not be disqualified from benefits if
The work is at an unreasonable distance from the individual's residence, having regard to the character of the work the individual has been accustomed to do, and travel to the place of work involves expenses substantially greater than that required for the individual's former work.
19 Del.C. § 3314(c).
Mr. Hawkins testified that Access Labor provides transportation as a service, which is deducted from the employees' paychecks. No evidence was presented as to the amount of the deduction and whether Access Labor had given notice to Appellant that this was an option. Felton is farther from Appellant's residence of Dover than Wyoming, and Access Labor knew that Appellant was always dropped up and picked up by his father. The Court finds the facts on this issue insufficient.
Finally, the Board found that Appellant had accepted an offer to drive the trash truck. Appellant does not have a driver's license. The Court believes this finding of fact is in error as there is no testimony to support it. The Court finds that there is no substantial evidence to support the Board's findings of fact as to the characterization of Appellant's job offer.
CONCLUSION
Based on the foregoing, the Court reverses and remands for a full and proper hearing, in conformity with this decision.IT IS SO ORDERED.