Opinion
C.A. No. 99A-10-003 WTQ.
Date Submitted: January 25, 2000.
Date Decided: January 28, 2000.
Letter Opinion and Order on Appellee Visiting Nurse Association's Motion to Affirm Pursuant to Super. Ct. Civ. R. 72.1 — Motion GRANTED
Catherine E. Robinson, 54 Martine Court, Newark, DE 19711
David H. Williams, Esquire Ellen Marie Cooper, Esquire Morris, James, Hitchens Williams 222 Delaware Avenue P.O. Box 2306 Wilmington, DE 19899
James J. Hanley, Esquire Unemployment Insurance Appeals Board Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801
Dear Ms. Robinson, Mr. Williams, Ms. Cooper and Mr. Hanley:
This is the Court's Letter Opinion and Order on the Christiana Care Visiting Nurse Association's ("VNA") Motion to Affirm a decision of the Unemployment Insurance Appeals Board ("UIAB"). For the reasons stated herein, the VNA's Motion to Affirm is GRANTED.
FACTS
Catherine Robinson ("Robinson") is a pro se litigant appealing a decision of the UIAB. Robinson was employed as a billing analyst from March 15, 1999 through April 2, 1999 by the VNA. She earned approximately $12 per hour during her employment. She was allegedly discharged form her employment for giving false information on her application. It was the policy of the employer to dismiss individuals for falsification of a job application (Transcript, Dkt. No. 5, at 22.)
On her job application, Robinson answered "no" to the question of have you ever been convicted of a crime. On the employer's "consent or waiver to conduct a criminal background check" form, Robinson again answered "no" to the question of whether she has been arrested or charged with any violation, including traffic but excluding parking tickets. Robinson has been arrested for felony theft (she pled guilty to a misdemeanor), was arrested and convicted of a DUI, and was arrested but nolle prossed for an incident concerning forgery and misdemeanor theft.
Initially, Robinson was awarded benefits by a Claims Deputy. Then, Robinson had her case heard by an Appeals Referee. The Referee found for VNA and disqualified Robinson from benefits. (Referee Decision, Dkt. No. 5, at 10). Robinson appealed the decision of the Referee to the UIAB, claiming that she did not know that she was going to be subject to a criminal background check and if she thought that she had a criminal record, she would not have left her other job.
Robinson's first appeal hearing was scheduled for June 30, 1999, which was postponed at her request. The second appeal hearing was scheduled for August 18, 1999, which was again postponed by Robinson. At the third hearing, scheduled for September 15, 1999, Robinson failed to appear and the appeal was dismissed.
Robinson now appeals the dismissal of her case to this Court, explaining the circumstances of her convictions, and arguing that she did not knowingly or intentionally falsify any information on her employment application.
STANDARD OF REVIEW
Pursuant to Superior Court Civil Rule 72.1, a Motion to Affirm may be granted where it is manifest on the face of the appellant's brief that the appeal is without merit because: (1) the issue on appeal is clearly controlled by settled Delaware law; (2) the issue on appeal to this Court is factual, and clearly there is sufficient evidence to support the jury verdict or findings of fact below; (3) the issue on appeal from a commission or board is factual, and there is substantial evidence to support the findings of fact below; or (4) the issue on appeal is one of judicial or administrative discretion and clearly there was no abuse of discretion. Super. Ct. Civ. R. 72.1; Wallace v. Alberici Construction Co., Del. Super., C.A. No. 98A-11-007, Quillen, J. (Apr. 22, 1999); Rodel, Inc., v. Johnson, Del. Super., C.A. No. 97A-04-014, Carpenter, J. (May 1, 1998).
DECISION
The first issue to consider in this case is whether the Board committed error in dismissing Robinson's claims. First, Robinson does not address in her brief why she did not appear before the Board. Robinson simply chose not to show up at the UIAB hearing and brought her claims before this Court. Robinson has not established sufficient reasons or evidence in the record for this Court to reverse a decision of the Board that dismissed the appeal of the Claimant from the Appeals Referee on the ground that the Claimant did not appear for the hearing. Salgado v. Chi-Chi's USA, Inc., Del. Super., C.A. No. 94A-03-020, Bifferato, J. (Mar. 14, 1995). While this Court may exhibit some degree of leniency to a pro se litigant, it cannot excuse a litigant for failing to appear without explanation. See Jackson v. UIAB, Del. Super., C.A. No. 85A-NO-9, Bifferato, J. (Sept. 24, 1986). Here, the Board ACTED within its authority in dismissing the Claimants appeal, especially considering the fact that Robinson had been granted two continuances of her appeal at her request, and there was no allegation that she did not receive notice of the appeal. On that ground alone, the decision of the Board is AFFIRMED.
The Claimant argues that she did not knowingly or intentionally falsify any information on her employment application and she would not have left her old job if she knew that her criminal history would have effected her position with VNA. "Generally, a false statement on an employment application is treated like any other kind of misconduct. That is, if made willfully, it constitutes just cause for discharge." Bressi v. Eckerds Corp., Del. Super., C.A. No. 92A-09-012, Goldstein, J. (Sept. 19, 1994). One can readily understand why a fact finder would be skeptical of the truth of Claimant's assertions, and the decision of the Appeals Referee certainly appears well within a fact finder's province. In normal course, one would expect an affirmance on the record in this case. The Claimant may have been given an opportunity to present evidence before the UIAB. 19 Del. C. § 3320. Here, however, the question of willfulness of Robinson's false answers was not reached before the Board, the last administrative level, because she did not even show up for her appeal before the Board. She certainly cannot get judicial relief here under these circumstances. The Motion to Affirm is GRANTED. IT IS SO ORDERED.
Sincerely,
William T. Quillen