Opinion
C.A. No. 01A-06-003
Date Submitted: November 20, 2001
February 28, 2002
Ellen Marie Cooper, Esquire, Wilmington, DE.
Brian E. Lutness, Esquire, Wilmington, DE.
Dear Counsel:
Pending before the Court is an appeal of a decision of the Unemployment Insurance Appeal Board ("Board") granting claimant Gloria Clausen ("claimant") benefits after finding that she quit her job with Lowell Scott, M.D. ("employer") for good cause. This is my decision on the appeal.
PROCEDURAL HISTORY
Claimant left her employment effective January 19, 2001. She filed a claim for unemployment benefits. The claims deputy denied those benefits. She appealed therefrom. After a hearing before an Appeals Referee ("Referee"), the Referee denied benefits, also. Claimant then appealed to the Board. The Board took more testimony. It granted benefits, concluding she left her job for good cause. This appeal followed.
FACTS
The facts are undisputed unless otherwise noted.
The testimony from the hearings before the Referee and Board establishes the following.
Claimant began working in employer's new pediatric practice as a full-time registered nurse on December 4, 2000. At the job interview, she was told that employer was beginning a new practice; they would be very busy; the normal work hours were 8:30 a.m. to 5:00 p.m. and claimant occasionally would have to work late; and she would be able to take lunch and other breaks.
There is a factual dispute as to whether claimant was hired as an hourly or salaried employee. There is no dispute that she was to be paid $36,000.00 year and her hourly rate was $17.30.
Claimant was forced to work more than she was told she would be working because the practice was much busier than was anticipated when she was hired. That is because employer brought previously existing patients to his new practice and then acquired more new ones than he thought he would, employer was on call a number of times, and influenza struck during this time period. Employer also had thought, when he hired claimant, that he would be able to hire more employees to ease the workload. However, he later learned that because his office was located in a residential district, he was limited in the number of employees he could hire.
It is not clear exactly how many overtime hours claimant was working. She was working later than 5:00 p.m.; however, on Fridays the office closed early and on two other afternoons the doctor left the office before 5:00 p.m. to work at a clinic. In any case, claimant was not taking breaks, she was missing some lunches, she often remained at work after 5:00 p.m., and she would have to do her paperwork at home. Claimant approached employer and suggested a number of ways of easing the workload. Employer either discounted those suggestions for what employer considered to be valid reasons or adopted them. In one particular case, employer acted upon her suggestion to hire part-time help. That extra worker has worked out very well, but claimant left employment before that person had worked long enough to ease claimant's burden.
Claimant testified that the office was chaotic and disorganized and there was a problem with the telephones. The chaos, disorganization, phone problem, long hours and fact they mistakenly scheduled her to work on a day when they had said she would be off made her decide it was time to resign. She resigned effective January 19, 2001.
Employer told her to go ahead and take that day off due to its mistakenly scheduling appointments for that day. She chose to take off only part of the day.
The Board found and concluded as follows:
The Board finds that employer represented to claimant that she would be working a 40 hour week at the time of hire and then substantially changed the working hours. While this was necessary due to the volume of employer's practice, it was not the same terms of employment that had been represented to claimant when she was hired. An employee who voluntarily terminates her employment will be disqualified from receiving benefits unless she can show that she had good cause for leaving related directly to the work. Good cause may include circumstances such as substantial reduction in hours, wages or a substantial deviation in the working conditions from the original agreement of hire to the employee's detriment. [Citation omitted.] The Board finds that, by increasing the number of hours claimant was required to work, without offering extra compensation, employer substantially deviated from the original agreement of hire to claimant's detriment. Thus, the Board finds that claimant voluntarily terminated her employment for just cause in connection with the work.
DISCUSSION
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Johnson v. Chrysler Corporation, 213 A.2d 64, 66-7 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp, 517 A.2d 295, 297 (Del.Super. 1986), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corporation, 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d).Under 19 Del. C. § 3315(1), an individual who is otherwise eligible for benefits may be disqualified if he or she "left work voluntarily without good cause." Good cause for voluntarily leaving a job has been defined as reason to "justify one in voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." O'Neal Bus Service, Inc. v. Employment Security Commission, 269 A.2d 247, 249 (Del.Super. 1970). Good cause may exist where there is a substantial reduction in wages or hours of employment, or a substantial deviation from the original employment agreement. Harris v. Academy Hearing Air, Del. Super., C.A. No. 93A-10-001, Graves, J. (June 6, 1994). However, even though an employee does not have to exhaust all potential remedies with an employer before quitting, "an employee does have an obligation to inform an employer of resolvable problems and to make a good faith effort to resolve them before simply leaving." Sandefur v. Unemployment Insurance Appeals Board, Del. Super., C.A. No. 92A-01-002, Goldstein, J. (August 27, 1993) at 10.
The burden of establishing good cause for leaving employment is on the claimant. Longobardi v. Unemployment Ins. App. Bd., 287 A.2d 690 (Del.Super. 1971), aff'd, 293 A.2d 295 (Del. 1972).
In this case, the Board never addressed claimant's obligation to resolve the problems. Specifically, the Board failed to make factual findings and reach legal conclusions as to whether an opportunity was provided for the parties to work out those problems. The testimony established there were several reasons why claimant stopped working: the extended hours, the chaos in the office, the phone problem, and the confusion about working a day she took off. Employer explained that he hired an extra worker, but claimant quit working before she could determine if that would ease the workload and chaos problems. He also fixed the phone situation. Finally, employer told her to take off on the day she thought the office was closed. The matter is remanded for the Board to address this issue.
On remand, the Board also should make a factual determination as to whether claimant was an hourly or salaried employee and whether she proved she actually was working more than forty hours per week. Also since this matter is being remanded, the Board should take evidence on and decide whether claimant was eligible to receive benefits pursuant to 19 Del. C. § 3314 before it addresses the qualification issue. Division of Unemployment Insurance v. Unemployment Insurance Appeal Board, Del. Super., C.A. No. 89A-MY-2, Ridgely, J. (April 11, 1990) at 5. ("First the Department must determine if the individual is eligible. If the individual is eligible, the Department must determine if the individual is disqualified.")
Employer first raised this issue on appeal. In normal circumstances, the Court would not consider it because it has been waived. However, since the Court is remanding the matter for other proceedings, it instructs the Board to address the issue on remand.
CONCLUSION
The matter is reversed and remanded for proceedings consistent with this decision. This Court does not retain jurisdiction.
IT IS SO ORDERED.