Opinion
C.A. NO. 99A-10-013-NAB
Submitted: July 14, 2000.
Decided: August 3, 2000.
Appeal From a Decision of the UIAB. Affirmed.
Herbert G. Feuerhake, Esquire, Wilmington, Delaware, for Claimant.
James J. Hanley, Esquire, Deputy Attorney General, Wilmington, the Board.
Michael F. Foster, Esquire, Deputy Attorney General, Wilmington, Department of Correction.
ORDER
Having reviewed the parties' submissions, as well as the record of the proceedings below, the Court finds and concludes as follows:
1. Posture. Claimant Cindy Scala worked for the Department of Corrections (DOC or Employer) from June 1, 1994, through August 14, 1998, when she voluntarily left her job. Her subsequent petition for unemployment insurance benefits was granted, a decision which was appealed to this Court by the DOC. This Court remanded the matter to the Unemployment Insurance Appeal Board (Board) for further findings. A factual chronology of the events leading up to Claimant's decision to quit her job is included in this Court's remand decision. After conducting a hearing on remand, the Board concluded that Claimant voluntarily left her job without good cause related to her work and that she was therefore disqualified from receiving unemployment benefits. Claimant appealed the decision to this Court. Briefs having been submitted, the issues are ripe for decision.
See Dept. of Correction v. Unemployment Ins. Appeal Bd., Del. Super., C. A. No. 98A-12-015, Barron, J. (Aug. 23, 1999) (ORDER).
2. The Board's decision. In sum, the Board found that Employer had attempted to work out a solution to Claimant's various employment problems (including but not limited to her lack of fitness to carry a weapon, her desire for a less stressful position, and several instances of alleged sexual harassment) and that Claimant did not have good cause to quit her job. For review purposes, the Court includes the Board's chronology of events and findings of facts:
The Board finds that the claimant did not have good cause to quit her employment. Although the history of claimant's complaints starts with her salary at time of hire, the Board considers the issues presented in the claimant's last seven months because this is the period specified in her letter of resignation in July, 1998. The claimant was working in a light duty position following her transfer to the intake position. In February, 1998, the employer and the claimant's attorney attempted to agree on a permanent position because Departmental policy precluded a permanent light duty assignment. The employer offered to assign the claimant to a new position after obtaining "prior approval from the State Personnel Office for retention of salary." The claimant refused this offer and was involuntarily reassigned with a pay reduction. The union grieved this demotion in March 1998. This matter continued in the grievance process, and the claimant voluntarily quit on July 17, 1998. There had not been a change in work conditions since March and there was no evidence of ongoing harassment or retaliation. There had been a cause for quitting [sic]. The employer had attempted to accommodate the employee with a less stressful work situation. The only demand had been for a further psychological in July, 1998, but this request apparently resulted from an issue in the grievance procedure.
Appendix to Answering Brief of Employer/Appellant Department of Correction, at B-5.
3. Issues on appeal. Claimant argues that DOC violated her rights under the Americans with Disabilities Act of 1997 (ADA). In so arguing, she asserts that there was substantial evidence to support a finding that she had good cause to quit her job. She also argues that the Board violated her procedural due process rights at the hearing by limiting the time her attorney had to make his closing remarks. Employer responds that there was substantial evidence on the record to support the Board's factual findings and that the Board hearing conformed to the requirements of procedural due process.
See 42 U.S.C. § 12101-12213. State courts have concurrent jurisdiction over ADA cases. Krouse v. American Sterilizer Co., W.D.Pa. 872 F. Supp. 203, 205 (1994) (citing Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 821 (1990).
4. The ADA claims. The gist of Claimant's argument is that DOC intentionally chose not to follow ADA guidelines in retaliation for the Title VII gender discrimination complaints Claimant filed against DOC with the Equal Employment Opportunity Commission. Specifically, Claimant argues that DOC perceived her as disabled but failed to accommodate her, and is therefore liable for a "regarded as disabled" claim under ADA guidelines. The Court notes that she does not attempt to meet the very specific threshold requirements for an ADA claim.
The Court notes that the ADA retaliation provisions are similar to Title VII retaliation provisions and are analyzed under the same framework. Krouse v. American Sterilizer Co., 3d. Cir., 126 F.3d 494, 500 (1997). To make a prima facie case of retaliation under the ADA, an employee must show (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. Id. If this showing is made, the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its adverse employment action. Id. This is a relatively light burden which is met if the employer articulates any legitimate reason for adverse action. Id. If this showing is made, the burden shifts back to the employee to show that the employer's proffered explanation is false and that retaliation was the actual reason for the adverse employment action. Id. at 501. "It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Sheridan v. E.I. DuPont de Nemours Co., 3d Cir., 100 F.3d 1061, 1067-68 (1996) (en banc) (explaining how plaintiff may satisfy burden), cert. denied, 521 U.S. 1129 (1997).
The Court notes that, in general, an employer's perception that an employee cannot perform a wide range of jobs suffices to make a "regarded as [disabled] claim." Taylor v. Pathmark Stores, Inc., 3d Cir., 177 F.3d 180, 188 (1999) (citing Dipol v. New York City Transit Authority, E.D.N.Y., 999 F. Supp. 1102, 1114 (1998) (concluding that plaintiff had proved a "regarded as disabled" claim when, after receiving information from plaintiff's doctor, employer immediately placed plaintiff on no-work status, excluding him from all jobs).
See Taylor v. Phoenixville School District, 3d. Cir., 184 F.3d 2996, 305 (1999).
5. Even more germane is the fact that Claimant has not filed an ADA suit in either state or federal court. Nor can she raise ADA issues for the first time on appeal of a Board decision. For these reasons, the Court concludes that the ADA argument is not properly before the Court. The Court will address the factual questions which Claimant raises, albeit without regard to her assertion that they are evidence of DOC's "retaliatory animus" under the ADA.
6. Fact question. Claimant challenges the Board's factual findings regarding (1) her transfer and emotion; (2) the question of salary; and (3) the third psychological evaluation required by DOC. On each of these questions, Claimant asserts that there is substantial evidence to support her preferred version of the facts and that, taken together, these questions support her position that "[t]here was substantial evidence in support of `good cause' for Officer Cindy Scala's `voluntary quit.'" However, this is a misstatement of the appellate standard. When seeking to overturn the Board's factual findings, a claimant must show that the Board's findings are not supported by substantial evidence. Substantial evidence is such relevant evidence that a reasonable mind could accept as adequate to support a conclusion.
Opening Brief at 25.
General Motors v. Freeman, Del.Supr., 164 A.2d 686 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del.Supr., 636 A.2d 892 (1994).
7. Claimant argues that the dimotion to Social Service Specialist was an unjustified act of retaliation. She also argues that the Board erred in finding that she was on light duty between December 19, 1997 (date of transfer to the intake unit), and March 16, 1998 (date of emotion to social Service Specialist). The record shows that, on February 19, 1998, Alan Machinger, Director, Human Resources Development, described Claimant's duties in the intake unit and stated that "[t]o continue her current assignment as a Probation and Parole Officer II would constitute permanent light duty which is in violation of Department Policy and is inherently unreasonable." Thus, the Board's finding that Claimant was on light duty is supported by substantial evidence.
See Record of First Bd. Hrg. at 00039-00040. Letter also included in Appendix to Ans. Br. at B-76.
8. The Board also found that "there was no evidence of ongoing harassment or retahation . . . [and that] the employer had attempted to accommodate the employee with a less stressful work situation." The Board also found that Claimant's treating psychologist, Dr. Reubin, requested that Claimant be transferred to a less stressful unit, and that DOC honored this request when it reassigned Claimant to the intake unit. The record shows that Dr. Reuben made such a request in writing, and that DOC transferred Claimant to the intake unit precisely because it was a less stressful environment. The Court concludes that there is substantial record evidence to support the Board's finding that Claimant's transfer and demotion were not acts of retaliation.
App. at B-3.
9. Claimant also reargues the fact question of whether the DOC guaranteed that her salary would remain the same if she accepted the reassignment to the position as Social Service Specialist. The Board found that Employer "offered to assign the claimant to a new position after obtaining `prior approval from the State Personnel Office for retention of salary.'" The record supports this finding. On February 19, 1998, Mr. Machinger put the offer in writing, as follows: "Ms. Scala may continue in her current assignment as a Social Service Specialist II or accept a Social Service Specialist II position in the New Castle Office. . . . I will obtain prior approval from the State Personnel Office for retention of salary."
See Record of First Bd. Hrg. at 00039-00040. Letter also included in Appendix to Ans. Br. at B-76.
9. In her Reply Brief, Claimant states that the salary issue is immaterial and that the "real affront" is that she was forced into the position of Social Service Specialist regardless of salary. Claimant then asserts that she had "no performance shortcomings and [that] Dr. Hullinger's conclusions were wrong." Here a gain, instead of showing that the Board's findings are unsupported by the evidence, Claimant simply contradicts the evidence. This approach does not meet the appellate standard.
Reply Br. at 10.
Id
10. Claimant also argues that her unwillingness to undergo a third psychological evaluation on an "unfairly prejudiced and polluted record" was reasonable and that her decision to resign based on this alleged unfairness was "eminently reasonable." Although these statements may accurately reflect Claimant's state of mind, they do not meet the appellate standard. In regard to the third psychological evaluation, the Board found that "[t]he employer had attempted to accommodate the employee with a less stressful work situation. The only demand had been for a further psychological in July 1998, but this request apparently resulted from an issue in the grievance procedure. Implicit in these statements is the conclusion that the third evaluation, and its attendant circumstances, did not provide Claimant with good cause to quit her job.
Opening Brief at 37.
App. at B-5.
11. Claimant herself does not object to the evaluation but rather to Employer's insistence that the third evaluator be provided with the reports from previous evaluators. This argument raises no cognizable legal issue and provides no basis for reversal or further review of the Board's decision.
12. Procedural due process. Finally, Claimant argues that her due process rights were violated at the Board hearing when her attorney was told he had used up his time and that he was not providing the Board with any new information. The record shows that, when these comments were made, counsel was covering ground thoroughly explored both in that hearing and in the first hearing. Claimant was not prevented from presenting witnesses, evidence, or legal argument. The Court finds no violation of Claimant's due process rights.
For all these reasons, the decision of the Board denying Claimant Cindy Scala's petition for unemployment insurance benefits must be and hereby is AFFIRMED .
It Is So ORDERED .