Brittingham v. Delmar Pizza & Pasta Restaurant, Inc.

• Court: Superior Court of Delaware
• Decided: January 4, 2023
• Docket: S22A-07-001 MHC
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SAMANTHA BRITTINGHAM, ) ) Appellant, ) ) v. ) ) DELMAR PIZZA & PASTA ) RESTAURANT, INC. ) C.A. No. S22A-07-001 MHC ) ) AND ) ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD, ) ) Appellees. )

ORDER Submitted: November 1, 2022 Decided: January 4, 2023

On the Decision of the Unemployment Insurance Appeals Board, AFFIRMED.

Samantha Brittingham, Pro Se Appellant.

Victoria E. Groff, Esquire, Assistant Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee Unemployment Insurance Appeal Board.

Victoria W. Counihan, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Delaware Division of Unemployment Insurance.

James D. Griffin, Esquire, Parkowski Guerke & Swayze, Rehoboth Beach, Delaware, Attorney for Appellee Delmar Pizza and Pasta Restaurant, Inc.

Conner, J. This 4th day of January 2023, upon consideration of the appeal of Samantha

Brittingham (“Brittingham”) from the decision of the Unemployment Insurance

Appeal Board (the “Board”), it appears to the Court that:

Factual and Procedural History

1. Brittingham has been employed by Delmar Pizza and Pasta Restaurant Inc.

(“Employer”) since August 6, 2017. Brittingham is employed as a part-time

server earning $2.23 an hour plus tips.

2. On December 23, 2021 Brittingham filed for unemployment benefits because her

hours were reduced.

3. On January 27, 2022 the Division Claims Deputy determined that Brittingham

was not eligible for unemployment benefits because she was not guaranteed a

minimum number of hours by the Employer and is not considered an

“unemployed individual” pursuant to 19 Del. C. § 3302 (17).1

1 19 Del. C. § 3302 (17) states:

“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 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. 1 4. Brittingham appealed the Claims Deputy’s decision. A telephonic hearing

occurred on April 4, 2022 before an Appeals Referee. Brittingham claimed that

since October 2021 the Employer has decreased her hours from approximately

30-40 per week to 3.5-10 hours per week. Brittingham testified that she was hired

at full time hours in 2017 and that she was verbally guaranteed to be scheduled

40 hours per week.

5. Applying 19 Del. C. § 3302 (17), the Appeals Referee concluded Brittingham

did not meet the definition of a partially unemployed or unemployed person and

was therefore ineligible to receive unemployment benefits.2 The Appeals Referee

further found that Brittingham was hired as a part-time server on an as needed

basis with no guaranteed number of hours per week.3 The Employer testified that

Brittingham is working a reduced number of hours because she is not available

to work evenings and there are a limited number of day shift hours available.4

Although evening shifts are available, Brittingham is working all available hours

that she is willing to work.5 The Appeals Referee concluded Brittingham’s

reduction in hours due to her limited availability is not something that can be

attributed to the Employer.6

2 Referee’s Decision at 3, Apr. 6, 2022. 3 Id. 4 Id. 5 Id. 6 Id. 2 6. On April 8, 2022 Brittingham appealed the Referee’s decision to the Board.7 At

the May 18, 2022 Board hearing Brittingham testified that she has three separate

unemployment claims and that each should be heard individually.8 After

determining what claim was being discussed Brittingham explained her

application for benefits dated December 23, 2021 was filed due to her hours being

reduced from 20-30 hours weekly to 8-10 hours weekly.9 Brittingham further

explained she felt the Employer was reducing her hours as retaliation for her

previous claims.10

7. The Board affirmed the Referee’s decision that Brittingham did not meet the

definition of “unemployed” pursuant to 19 Del. C. § 3302 (17) at the time of

filing her claim.11 The Board explained that Brittingham did not submit any

evidence establishing that she worked regular full-time hours with the

Employer.12 Additionally, the Board added that “[a]lthough [Brittingham] may

7 Brittingham Appeal Request, April 8, 2022. 8 The issue is not addressed further in the Board’s decision but is discussed briefly in the transcript of the hearing with the Appeals Referee. In that hearing Brittingham states she has three separate claims all combined under one case and asks the Appeals Referee which claim is being addressed. The Referee stated she can only address what has been appealed, which was Appeals Docket Number 77074941. The Referee explained the cases are not consolidated. The only appeal to be addressed is whether Brittingham qualified as an unemployed individual. Id. at 1; see also Transcript of Referee’s Hr’g at 6-8. 9 This testimony is slightly inconsistent with the testimony given in front of the Appeals Referee. Id. at 1-2. 10 Brittingham suffered a work-related injury on August 9, 2021 and was out of work until October 9, 2021. Due to her being unable to work, she filed for both Workers’ Compensation benefits and Unemployment benefits. Id. at 2. 11 Id. at 3. 12 Id. 3 have worked more hours prior to her claim for unemployment benefits, she was

not guaranteed a minimum number of hours, and, therefore, does not meet the

definition of ‘unemployed.’”13 On July 19, 2022 Brittingham appealed the

Board’s decision.

Standard of Review

8. The Court’s appellate review is limited to determining whether the Board’s

findings and conclusions are supported by substantial evidence and free from

legal error.14 Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”15 Discretionary

decisions of the Board will be upheld unless the Board “exceeds the bounds of

reason in view of the circumstances and has ignored recognized rules of law or

practice so as to produce injustice.”16 The Court may not weigh evidence, decide

questions of credibility, or engage in fact-finding upon review of the Board’s

decision.17

13 Id. 14 Toribio v. Peninsula United Methodist Homes, Inc., 2009 WL 153871, at *2 (Del. Super. Jan. 23, 2009). 15 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981). 16 Nardi v. Lewis, 2000 WL 303147, at *2 (Del. Super. Jan. 26, 2000). 17 Toribio, 2009 WL 153871, at *2. 4 Discussion

9. Brittingham advances two arguments in supporting her appeal.18 First,

Brittingham argues her three unemployment claims should not have been

consolidated.19 However, the only issue addressed by the Claims Deputy,

Appeals Referee, and the Board pertains to the reduction of hours filed on

December 23, 2021. Therefore, this Court is limited to deciding the issues

relevant to the December 2021 unemployment benefits claim and associated

appeal.

10. Brittingham’s second argument is without merit. She has not submitted any

evidence she ever worked regular full-time hours. A review of the pay stubs

attached to Brittingham’s Opening Brief establishes she never worked a specific

number of hours.20 Due to the lack of evidence that Brittingham was guaranteed

a minimum number of hours from the Employer, the appeal must fail. The Board

did not err in concluding Brittingham was ineligible to receive unemployment

benefits under 19 Del. C. § 3302 (17).

18 Brittingham Opening Br., September 29, 2022. 19 Id. § Issues Presented for Review. 20 Id. Attached Paystubs. See also Referee’s Decision, April 6, 2022, Claimant’s Ex. 1. 5 Conclusion

11. The record supports the Board’s decision that Brittingham was not unemployed

within the meaning of 19 Del. C. § 3302 (17). No error of law or abuse of

discretion exists in the Board’s decision. Accordingly, the Board’s decision is

AFFIRMED.

IT IS SO ORDERED.

/s/Mark H. Conner______________ Mark H. Conner, Judge

cc: Prothonotary