IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALICIA ANDERSON, ) ) Claimant-Appellant, ) ) v. ) C.A. No. N20A-05-007 VLM ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD and PAINTING ) WITH A TWIST, ) ) Employer-Appellees, )
ORDER
Submitted: February 4, 2021 Decided: May 13, 2021
Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment Insurance Appeal Board, AFFIRMED.
Alicia Anderson, Pro Se.
Daniel C. Mulveny, Esquire, Department of Justice, Wilmington, DE. Attorney for Appellee Unemployment Insurance Appeal Board.
Victoria W. Counihan, Esquire, Department of Justice, Wilmington, DE. Attorney for Delaware Division of Unemployment Insurance.
MEDINILLA, J.
1 I. INTRODUCTION
Appellant, Alicia Anderson (“Anderson”) appeals a decision of the
Unemployment Insurance Appeal Board (“Board”) that found because she was not
unemployed, she was disqualified from receiving unemployment insurance benefits
under 19 Del. C. § 3302(17). Upon consideration of the arguments, submissions of
the parties, and the record in this case, the Court hereby finds as follows:
1. Anderson was a part-time senior artist at Painting with a Twist
(“Employer”) after she was hired in April 2016. 1 When Anderson first started
working, she would work between 20-30 hours a week.2 Although Anderson began
at 20-30 hours per week, hours were reduced soon after. 3 Eventually, Anderson’s
hours fell to 0-4 per week.4
2. Employer did not commit to giving Anderson a set number of hours,
nor was there any guarantee that she would receive a certain number of hours in her
offer letter of employment.5 While it is unclear from the record when issues with
Anderson began, by 2018, Employer had received emails from other employees
stating they did not wish to work with Anderson because she was creating a hostile
work environment.6 As a result, Employer had difficulty providing Anderson with
1 Record, at 27, 29 [hereinafter R.]. 2 Id. at 30. 3 Id. at 32-33. 4 Id. at 30. 5 Id. at 34, 37-38, 133-34. 6 R. at 18-19, 51-52. 2 hours.7 Employer provided both verbal and written communications for
improvement.8 Anderson’s conduct failed to improve, however, and in April 2019,
Employer sent her a final warning, indicating if there was another complaint,
Anderson would be terminated.9
3. Due to the reduced hours, Anderson filed a claim for unemployment
benefits with the Division of Unemployment Insurance on August 4, 2019. On
August 30, 2019, a Claims Deputy found that Anderson was not unemployed, thus
disqualifying her from unemployment benefits under 19 Del. C. § 3302(17).10
Anderson timely appealed to an Appeals Referee. 11 During the pendency of the
appeal, Employer terminated Anderson’s employment. 12 On September 26, 2019,
following a hearing, the Appeals Referee affirmed the Claims Deputy’s decision that
Anderson was not unemployed when she filed her claim.13 Anderson appealed the
decision to the Board.14
7 Id. at 55. 8 Id. at 16, 55. 9 Id. at 20, 63. 10 Id. at 4-5. 11 Id. at 1-2. 12 Id. at 54. 13 Id. at 9-11. 14 Id. at 82. The Board initially denied Anderson’s appeal as untimely, which Anderson appealed to this Court. On January 8, 2020, the parties jointly requested that the Court remand the case to the Board after an investigation revealed a processing error caused Anderson’s appeal to be improperly considered untimely. The Court granted the request and remanded the case to the Board. 3 4. On February 5, 2020, the Board heard Anderson’s appeal. Anderson
argued she was unemployed since she had intended to utilize her job as an artist as
her main job.15 This argument failed. On April 7, 2020, the Board upheld the
Referee’s decision finding that Anderson was not unemployed,16 primarily because
the evidence established no guarantee of hours in her employment contract.17
5. On June 16, 2020, Anderson appealed the Board’s decision.18 On
December 7, 2020, Anderson filed her opening brief. The Division of
Unemployment Insurance filed a December 22 letter in lieu of an answering brief.
On December 23, 2020, the Board filed its answering brief. On January 21, 2021,
Anderson filed her reply brief. This Court was assigned the matter on February 4,
2021 and the matter is now ripe for review.
II. STANDARD OF REVIEW
6. On an appeal from the Board, this “[C]ourt must determine whether the
findings and conclusions of the Board are free from legal error” and whether they
are “supported by substantial evidence in the record.” 19 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
15 R. at 133-34. 16 Id. at 143-48. 17 Id. at 145. 18 Opening Brief, D.I. 10, at XV [hereinafter Opening Br.]. 19 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. July 7, 2011) (citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del. 1981); Pochvatilla v. United State Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. § 3323(a)). 4 conclusion.”20 The Court does not “weigh the evidence or make determinations
based on credibility or facts.”21 Absent an abuse of discretion by the Board, this
Court will uphold the Board’s determination.22
III. DISCUSSION
7. Anderson raises multiple reasons for why she believes the Board
erred.23 Her contentions can be summed up into two main arguments: (1) that the
Board did not have substantial evidence to support its findings; and (2) that she was
denied due process throughout the proceedings. The Court addresses each argument
in turn.
A. The Board’s Findings are Supported by Substantial Evidence
8. Under 19 Del. C. § 3302(17) a person is considered unemployed during
any week where the individual provides no services and no wages are payable to that
person, or “in any week of less than full-time work if the wages payable to the
individual with respect to such week are less than the individual’s weekly benefit
amount plus whichever is the greater of $10 or 50% of the individual’s weekly
benefit amount.”24 In interpreting the definition of unemployment, the Court has
20 Byrd v. Westaff USA, Inc., 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting Oceanport Industries, Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)). 21 Id. (citing Johnson v. Chrysler Corp., 203 A.2d 64, 66 (Del. 1965)). 22 See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991). 23 See Opening Br. at XV-XX. 24 19 Del. C. § 3302(17) (“‘Unemployment’ exists and an individual is ‘unemployed’ in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the 5 held that “an employee may be eligible for unemployment benefits when [s]he is
working fewer hours than [s]he normally works.”25 Anderson therefore claims that
she is eligible for unemployment benefits as a result of her reduced hours.
9. However, the record supports the Board’s finding that Anderson was
never guaranteed a set number of hours in her employment contract.26 In fact, at
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALICIA ANDERSON, ) ) Claimant-Appellant, ) ) v. ) C.A. No. N20A-05-007 VLM ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD and PAINTING ) WITH A TWIST, ) ) Employer-Appellees, )
ORDER
Submitted: February 4, 2021 Decided: May 13, 2021
Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment Insurance Appeal Board, AFFIRMED.
Alicia Anderson, Pro Se.
Daniel C. Mulveny, Esquire, Department of Justice, Wilmington, DE. Attorney for Appellee Unemployment Insurance Appeal Board.
Victoria W. Counihan, Esquire, Department of Justice, Wilmington, DE. Attorney for Delaware Division of Unemployment Insurance.
MEDINILLA, J.
1 I. INTRODUCTION
Appellant, Alicia Anderson (“Anderson”) appeals a decision of the
Unemployment Insurance Appeal Board (“Board”) that found because she was not
unemployed, she was disqualified from receiving unemployment insurance benefits
under 19 Del. C. § 3302(17). Upon consideration of the arguments, submissions of
the parties, and the record in this case, the Court hereby finds as follows:
1. Anderson was a part-time senior artist at Painting with a Twist
(“Employer”) after she was hired in April 2016. 1 When Anderson first started
working, she would work between 20-30 hours a week.2 Although Anderson began
at 20-30 hours per week, hours were reduced soon after. 3 Eventually, Anderson’s
hours fell to 0-4 per week.4
2. Employer did not commit to giving Anderson a set number of hours,
nor was there any guarantee that she would receive a certain number of hours in her
offer letter of employment.5 While it is unclear from the record when issues with
Anderson began, by 2018, Employer had received emails from other employees
stating they did not wish to work with Anderson because she was creating a hostile
work environment.6 As a result, Employer had difficulty providing Anderson with
1 Record, at 27, 29 [hereinafter R.]. 2 Id. at 30. 3 Id. at 32-33. 4 Id. at 30. 5 Id. at 34, 37-38, 133-34. 6 R. at 18-19, 51-52. 2 hours.7 Employer provided both verbal and written communications for
improvement.8 Anderson’s conduct failed to improve, however, and in April 2019,
Employer sent her a final warning, indicating if there was another complaint,
Anderson would be terminated.9
3. Due to the reduced hours, Anderson filed a claim for unemployment
benefits with the Division of Unemployment Insurance on August 4, 2019. On
August 30, 2019, a Claims Deputy found that Anderson was not unemployed, thus
disqualifying her from unemployment benefits under 19 Del. C. § 3302(17).10
Anderson timely appealed to an Appeals Referee. 11 During the pendency of the
appeal, Employer terminated Anderson’s employment. 12 On September 26, 2019,
following a hearing, the Appeals Referee affirmed the Claims Deputy’s decision that
Anderson was not unemployed when she filed her claim.13 Anderson appealed the
decision to the Board.14
7 Id. at 55. 8 Id. at 16, 55. 9 Id. at 20, 63. 10 Id. at 4-5. 11 Id. at 1-2. 12 Id. at 54. 13 Id. at 9-11. 14 Id. at 82. The Board initially denied Anderson’s appeal as untimely, which Anderson appealed to this Court. On January 8, 2020, the parties jointly requested that the Court remand the case to the Board after an investigation revealed a processing error caused Anderson’s appeal to be improperly considered untimely. The Court granted the request and remanded the case to the Board. 3 4. On February 5, 2020, the Board heard Anderson’s appeal. Anderson
argued she was unemployed since she had intended to utilize her job as an artist as
her main job.15 This argument failed. On April 7, 2020, the Board upheld the
Referee’s decision finding that Anderson was not unemployed,16 primarily because
the evidence established no guarantee of hours in her employment contract.17
5. On June 16, 2020, Anderson appealed the Board’s decision.18 On
December 7, 2020, Anderson filed her opening brief. The Division of
Unemployment Insurance filed a December 22 letter in lieu of an answering brief.
On December 23, 2020, the Board filed its answering brief. On January 21, 2021,
Anderson filed her reply brief. This Court was assigned the matter on February 4,
2021 and the matter is now ripe for review.
II. STANDARD OF REVIEW
6. On an appeal from the Board, this “[C]ourt must determine whether the
findings and conclusions of the Board are free from legal error” and whether they
are “supported by substantial evidence in the record.” 19 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
15 R. at 133-34. 16 Id. at 143-48. 17 Id. at 145. 18 Opening Brief, D.I. 10, at XV [hereinafter Opening Br.]. 19 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. July 7, 2011) (citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del. 1981); Pochvatilla v. United State Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. § 3323(a)). 4 conclusion.”20 The Court does not “weigh the evidence or make determinations
based on credibility or facts.”21 Absent an abuse of discretion by the Board, this
Court will uphold the Board’s determination.22
III. DISCUSSION
7. Anderson raises multiple reasons for why she believes the Board
erred.23 Her contentions can be summed up into two main arguments: (1) that the
Board did not have substantial evidence to support its findings; and (2) that she was
denied due process throughout the proceedings. The Court addresses each argument
in turn.
A. The Board’s Findings are Supported by Substantial Evidence
8. Under 19 Del. C. § 3302(17) a person is considered unemployed during
any week where the individual provides no services and no wages are payable to that
person, or “in any week of less than full-time work if the wages payable to the
individual with respect to such week are less than the individual’s weekly benefit
amount plus whichever is the greater of $10 or 50% of the individual’s weekly
benefit amount.”24 In interpreting the definition of unemployment, the Court has
20 Byrd v. Westaff USA, Inc., 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting Oceanport Industries, Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)). 21 Id. (citing Johnson v. Chrysler Corp., 203 A.2d 64, 66 (Del. 1965)). 22 See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991). 23 See Opening Br. at XV-XX. 24 19 Del. C. § 3302(17) (“‘Unemployment’ exists and an individual is ‘unemployed’ in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the 5 held that “an employee may be eligible for unemployment benefits when [s]he is
working fewer hours than [s]he normally works.”25 Anderson therefore claims that
she is eligible for unemployment benefits as a result of her reduced hours.
9. However, the record supports the Board’s finding that Anderson was
never guaranteed a set number of hours in her employment contract.26 In fact, at
both hearings, Anderson testified that she was never guaranteed any hours from
Employer nor was a certain number promised to her in her offer of employment
letter.27 Although Anderson’s version of her allocated hours included a belief that
she would work 20-30 hours per week in the beginning of her employment,28 she
offered conflicting testimony—that set hours were afforded yet a later admission
that her hours were constantly changing.29
10. Though Anderson may have been under the impression that she “was
going to be given hours as a top priority[,]”30 the record supports the finding that
there was no guarantee. Thus, the Court finds that there was substantial evidence to
individual with respect to such week are less than the individual's weekly benefit amount plus whichever is the greater of $10 or 50% of the individual's weekly benefit amount. The Department shall prescribe regulations applicable to unemployed individuals making such distinctions in the procedures as to total unemployment, part-total unemployment, partial unemployment of individuals attached to their regular jobs and other forms of short-time work as the Department deems necessary.”). 25 Annand v. Division of Unemployment Ins. Appeal Bd., 2011 WL 2698620, at *2 (Del. Super. July 1, 2011) (emphasis added). 26 See R. at 145. 27 See id. at 34, 37-38, 133-34. 28 See id. at 30. 29 See id. at 32-33, 36. 30 Id. at 38. 6 support the Board’s decision that Anderson was not unemployed under 19 Del. C. §
3302(17).
B. Anderson was not Denied Due Process
11. “The fundamental requirement of due process is the opportunity to be
heard ‘at a meaningful time and in a meaningful manner.’” 31 The formality and
procedure required will vary on the nature of the case.32 In terms of a claim before
the Board, due process requires that a party receive notice and a hearing.33 Anderson
does not claim that she did not receive notice or a hearing. Instead, she takes issue
with the conduct of the Department of Labor and the Board. 34 Both claims are
without merit.
i. Anderson’s Claims Against the Department of Labor
12. First, the Court finds no support for Anderson’s claims that the Claims
Deputy and Appeals Referee mischaracterized her statements and made false
statements to the Board.35 The Court has thoroughly reviewed the record in this
case, and finds no evidence that either the Claims Deputy or the Appeals Referee
made any false or misleading statements in their decisions. Further, even if such
31 Schweizer v. Board of Adjustments of City of Newark, 980 A.2d 379, 385-86 (Del. 2009) (quoting Matthews v. Eldridge, 424 U.S. 319, 336 (1976)). 32 Turkey’s Inc. v. Peterson, 2002 WL 977190, at *5 (Del. Super. May 13, 2002) (citing Morris v. Southern Metals Processing Co., 530 A.2d 673 (Del. 1987)). 33 PAL of Wilm. v. Graham, 2008 WL 2582986, at *4 (Del. Super. June 18, 2008) (citation omitted). 34 See Opening Br. 35 Id. at XIII, XXII. 7 allegations were true, Anderson was presented with an opportunity, when she
appeared before the Board, to present evidence or rectify any alleged
mischaracterizations. Anderson failed to do so.36
13. Second, Anderson argues she was not provided due process because the
Claims Deputy failed to explain her decision and that the Department of Labor did
not advise Anderson on how to file an appeal.37 The Claims Deputy was under no
obligation to explain her decision nor provide legal advice. Notably, the Department
of Labor did provide Anderson with the steps necessary to file an appeal of both the
decisions of the Claims Deputy and the Appeals Referee; providing notice of the
right and the process by which to institute an appeal.38 And she did so exercise her
right. Thus, it cannot be said she was denied due process.
ii. Anderson’s Claims Against the Board
14. As to the claims against the Board, they are equally without merit.
First, Anderson claims the Board refused to allow her an opportunity to explain why
she believed the Appeals Referee’s decision was wrong.39 The record suggests
otherwise. The Board expressly asked Anderson what part of the Appeals Referee’s
decision she disagreed with and was given an opportunity to make any final
36 See R. at 129-138. 37 Opening Br. at III, XIII, XVI. 38 R. at 5, 9. 39 Opening Br. at XIV. 8 statements at the conclusion of the hearing.40 Additionally, following the Board’s
questions regarding her hours of work, Anderson was permitted to explain, clarify,
and fully establish the record.41 At no time did she explain why she should be
considered unemployed even though she had no guaranteed hours. 42
15. Anderson’s second claim is that the Board’s questions were biased.43
The Court disagrees. The Board’s questions were directed to the issue at hand:
whether Anderson had a certain guaranteed number of hours that would allow the
Board to determine whether she could be considered unemployed. 44 The Board’s
questions to ascertain facts that would either weigh in favor or against Anderson
does not amount to bias. And where Anderson testified that she was never
guaranteed a certain number of hours of work, the Board was certainly free to
consider such fact.45
16. Anderson’s final arguments involve evidentiary issues, primarily the
Board’s consideration of hearsay and the time allocated to present her case.46 As to
40 R. at 133, 137. 41 Id. at 134. 42 See id. at 129-138. 43 Opening Br. at V-VI. 44 See R. at 133-34. 45 See id. 46 Anderson argues that she was not allowed to submit evidence and was given a limited time to make her case. See Opening Br. at VI-VII, XXV. Anderson also argues the Board improperly considered hearsay evidence. See Opening Br. at VII. 9 the latter, “[t]he Board has a busy docket and needs to move cases expeditiously.”47
Time constraints are the nature of the beast in legal proceedings. Where Anderson
and Employer were provided with an opportunity to be heard sufficient for the Board
to make its determination, any claim regarding limited time constraints does not rise
to a denial of due process.
17. As to the hearsay issue, in Delaware, it is well-settled law that “hearsay
evidence is permissible in certain instances in administrative hearings, although the
administrative board may not rely upon such evidence as the sole basis for its
decision.”48 Here, while the Board may have properly considered hearsay evidence
in support of its decision, it is clear that the critical finding that she was not
unemployed was established by Anderson’s own admission that she was not
guaranteed hours by Employer.49 She simply failed to present any evidence to the
contrary despite several opportunities to do so.
18. The record supports the Board’s decision that Anderson was not
unemployed within the meaning of 19 Del. C. § 3302(17), nor was Anderson denied
due process throughout the proceedings. There is no error of law. For the foregoing
reasons, the Board’s decision is AFFIRMED.
47 Matthews v. Don-Lee Margin Corp., 2015 WL 4719837, at *2 (Del. Super. Aug. 5, 2015) (citation omitted). 48 Connell v. New Castle Cty., 2000 WL 707105, at *3 (Del. Super. Mar. 23, 2000). 49 See R. at 145. 10 IT IS SO ORDERED.
/s/ Vivian L. Medinilla Vivian L. Medinilla Judge