Opinion
C.A. No. 06A-10-009-FSS.
Submitted: April 25, 2007.
Decided: May 10, 2007.
Upon Appeal from the Unemployment Insurance Appeal Board — AFFIRMED
ORDER
This is an Appeal from the Unemployment Insurance Appeal Board's denial of benefits to Sandra Vitelli, who was employed by DuPont for seventeen years. Basically, Vitelli failed to report for work in May 2006, because she was arrested. After DuPont did not hear from her for eightee n days, it sent a wa rning notice requiring h er to contac t DuPon t. When Vitelli did not respond, DuPont sent a termination letter. Then, almost a month after she went absent, Vitelli contacted DuPont.
Claiming she was fired without cause, as she was incommunicado while imprisoned, Vitelli filed for unemployment insurance benefits. When a referee and then the Board denied her claim, she filed this Appeal. Vitelli argues that the Board erred by deciding that she was to blame for failing to report for work or contact DuPont for at least eighteen days. In her letter supporting her Appeal, Vitelli explains why she was unable to contact DuPont sooner. Sh e conclud es that, under the circumstanc es, DuPont w as not entitled to fire her. Thus, she is entitled to benefits.
On Appeal, the court's role is limited. The court is only allowed to consider whether there was substantial evidence in the record supporting the B oard's factual findings and whether the Board's decision is supported by the law. The court is not entitled to reconsider and re-weigh the evidence in order to reach its own factual conclusions. Although there is room for Vitelli to disagree with its factual findings, the Board considered the arguments Vitelli raised in her Appeal. Actually, during the Board's proceeding it heard additional evidence, including Vitelli's testimony.
Unemployment Ins. Appeal Bd. of Dep't of Labor v. Duncan, 337 A.2d 308, 309 (1975). See also Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238 (Del.Super.Ct. 1979).
The Board found that DuPont has a policy that after an employee is absent for sixteen consecutive days, without a leave of absence, the employee "will be dropped from the roll." Similarly, DuPont has a policy against misconduct, including unauthorized absence from work, "unless the cause of absence prevents giving notice." It is beyond reasonable dispute that Vitelli was away for more than sixteen consecutive days. It also is beyond dispute that Vitelli neither notified DuPont personally, nor did she obtain a leave of absence. The question for the Board, therefore, was whether the reason for Vitelli's absence prevented her from notifying DuPont.
As to that, although it was disputed, the Board implicitly found that Vitelli could have notified DuPont, but she did not. That finding was supported by the fact that Vitelli attempted to notify DuPont indirectly, which means that she was not, in fact, incommunicado while in cu stody. For example, she testified that she was able to contact her boyfriend and also write and send mail after one week. It also is unclear as to when Vitelli, in fact, actually was released from prison.
The court will assume without deciding that had she actually been held incommunicado, that would establish, as a matter of law, cause for her failure to contact DuPont. That assumption is debatable. In any event, as mentioned, there was evidence in the record from which the Board could reasonably conclude that Vitelli was to blame for not contacting DuPont until after she had be en term inated. At most, she indirectly asked DuPont for a couple of vacation days. She did not tell DuPont why she had stopped coming to work, and she did not directly or indirectly request a leave of absence.
The court is sensitive to the fact that Vitelli worked for seventeen years and, pres uma bly, has contributed to the unemployment insurance program. Nevertheless, to keep a job, typically, the first requirement is that the employee show up. Failing that, it is reasonable to expect the employee to explain her absence, especially if it is prolonged.
Panzer v. Unemployment Ins. Appeal Bd., 1994 WL 318792, *2 (Del.Super.).
DuPont's forbearance for over sixteen days was reasonable, as a matter of law. Moreover, the Board was within its authority to consider the evidence and decide that, under the circumstances, Vitelli's failure to notify DuPont and request a leave of absence was unreasonable. Thus, Vitelli's failing to come to work and ask for leave amounted to willful misconduct and cause for termination. In other words, there is no basis upon which the court can reject the Board's fact-finding and legal conclusions.
For the foregoing reasons, the September 13, 2006 decision of the Board affirming the Referee's denial of benefits is AFFIRMED .
IT IS SO ORDERED.