Kazongo v. J&J Staffing Resources, Inc. ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMES K. KAZONGO, )
)
Appellant, )
)
v. ) C.A. No. N18A-02-003 VLM
)
J&J STAFFING RESOURCES, INC.,)
and THE UNEMPLOYMENT )
INSURANCE APPEAL BOARD, )
)
Appellees. )
ORDER
Date Submitted: August l, 2018
Date Decided: October 24, 2018
Upon Consz'deration of Appellant ’s Appeal ofthe Decisz``on of the Unemployment
Insurance Appeal Boarq’, AFFIRMED.
J ames K. Kazongo, Wilmington, DE. Pro Se Appellant.
Daniel Mulveny, Esquire, and Victoria W. Counihan, Esquire, Wilmington, DE.
Attorneys for Appellee Unemployment Insurance Appeal Board.
MEDINILLA, J.
INTRODUCTION
This is an appeal from the Unemployment Insurance Appeal Board (“Board”).
Appellant J ames K. Kazongo (“Employee”) timely appeals the Board’s January 30,
2018 decision that Employee voluntarily left his employment therefore disqualifying
him from the receipt of unemployment benefits.] Upon consideration of the facts,
arguments, and evidence set by the parties; statutory and decisional law; and the
entire record in this case,2 the Court hereby finds as follows:
1. Employee Was employed as an Assembly Worker and Laborer on an
“as needed” basis at J&J Staffing Resources, Inc. (“Employer”) from April 28, 2017
until June 26, 2017.3
2. Employer has a company policy that was included within Employer’s
“Temporary Services Employment Agreement - DE” and the employee handbook.4
lt provides that when an assignment is complete, an employee must contact
' The decision was mailed on January 30, 2018 and became final on February 9, 2018. Mr.
Kazongo filed this appeal on February 9, 2018. A party may file an appeal within 10 days of the
Board’s decision becoming final, therefore Mr. Kazongo’s appeal is timely. 19 Del. C. § 3323(a).
2 Appellant James Kazongo filed an opening brief on April 17, 2018. The Unemployment
Insurance Appeal Board filed a letter with this Court on April 25, 2018 stating that it would not be
filing an answering brief because Mr. Kazongo only raises challenges to the Board’s decision on
the merits. Appellee J&J Staffing Resources, lnc. did not flle an answering brief. On July 20,
2018, the Court ordered that pursuant to Rule 107(f), it will make a determination of the issue
based on the papers that have been filed.
3 See Opening Br. at 1; R. at 20, 87.
4 R. at 57-60, 87.
Employer to request placement in a new position within 48 hours after the end of the
assignment and every day thereafter that the employee is available for work.5 lt is
considered a voluntary quit if an employee does not contact Employer according to
the policy.6 Employee was presented with and signed a copy of both the “Temporary
Services Employment Agreement - DE” and the Handbook Acknowledgement Form
on April 26, 2017.7 Employee testified that he did not read the Employer’s policy
when he signed it because he was presented with multiple papers to sign upon
hiring.8
3. The Board found that Employee’s assignment ended on June 26, 2017.9
Employee claimed that he called Employer two days after his assignment ended, and
proceeded to call weekly after that point to ask about available work.]° Employer
asserted that Employee did not contact Employer, as per the employment policy,
until October 2017 and therefore considered him to have voluntarily quit.
5 R. 3157-60, 87.
6 Id.7 Id. 57, 60.
8 R. at 75.
9 Ia’. at 87.
10 Appellant’S Opening Br. at 1.
4. Employee filed a claim for unemployment benefits with the Division of
Unemployment Insurance on October l, 2017.ll On October 26, 2017, a Claims
Deputy found that Employee voluntarily left his employment and was disqualified
from the receipt of benefits pursuant to 19 Del. C. §§ 3314(1) and 3327.12
5. On November 1, 2017, Employee filed an appeal of the Claims
Deputy’s decision to an Appeals Referee.13 A hearing de novo was held on
November 16, 2017, where the Appeals Referee heard testimony from Employee
and Employer’s Representative Kim Sharp (“Sharp”).'4 During the hearing, Appeals
Referee admitted two documents into evidence, which included the “Temporary
Services Employment Agreement - DE” signed by Employee and “J&J Staffing
Resources’ Tips for Success” with a Handbook Acknowledgement Form signed by
Employee.15 The Appeals Referee reversed the Claims Deputy’s decision that
Employee voluntarily quit his position of employment16 The Appeals Referee held
ll R. at 1.
12 ld. at 8.
13 Id. at 16.
14 Ia'. at 24-48.
15 Ia'. at 57-60.
'6 R.at19-21.
that Employee Was not disqualified from benefits pursuant to 19 Del. C. §§ 3314(1)
and 3327.17
6. On November 29, 2017, Employer appealed the Appeals Referee’s
decision to the Board.18 A hearing was held on December 27, 2017. On January 30,
2018,19 the Board reversed the Appeals Referee’s decision and found that Employee
voluntarily left his employment and was disqualified from receiving benefits
pursuant to 19 Del. C. § 3314(1).20
7. Employee filed this appeal of the Board’s decision on February 9, 2018
and his opening brief on April 17, 2018. He contends that he “was misrepresented,
mischaracterized [b]y J&J staffing...and [he] was never voluntarily quit [his] job.”21
He also asserts that he called two days after his assignment ended “to request a new
assignment[.]”22 Having considered all submissions, the matter is now ripe for
review.
17 R. ar 21.
1814 at61-62.
19 The Decision of the Board Was mailed on January 30, 2018 and became final on February 9,
2018.
20 R. at 86-88.
21 Appellant’s Opening Br. at 1.
22 Id
Standard of Review
8. On an appeal from the Board, this “court 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.”23 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
”24 The Superior Court does not “weigh the evidence or make
conclusion.
determinations based on credibility or facts.”25 Absent an abuse of discretion by the
Board, this Court will uphold the Board’s determination26
Discussion
9. Pursuant to 10 Del. C. § 3314(1), a person is disqualified from receiving
benefits if that individual leaves “work voluntarily without good cause attributable
to Such work....”27 The employee has the burden “to establish good cause
attributable to the employment that justifies voluntarily leaving work.”28 If an
23 Wilson v. Unemployment Ins. Appeal Ba'., 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. Um``tea' States Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. §
3323(a)).
24 Byrd v. Westajjf USA, Inc., 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting
Oceanporl Ina'ustrl'es, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)).
25 Byra’, 2011 WL 3275156, at *1 (citing Johnson v. Chrysler Corp. , 203 A.2d 64, 66 (Del. 1965)).
26 See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
2719Del. C. § 3314(1).
\
28 Walker v. Unemployment Ins. Appeal Ba'., 2015 WL 1542034, at *2 (Del. Super. Mar. 12, 2015).
6
employee is a temporary employee at a temporary help firm, he or she “will be
deemed to have voluntarily quit employment if the employee does not contact the
temporary help firm for reassignment upon completion of an assignment.”29
Additionally, the employee must have “been advised of the obligation to contact the
firm. . .and that unemployment benefits may be denied for failure to do so” in order
for the failure to contact to be considered a voluntary quit.30
10. Employee argues he did not voluntarily quit because an employee of
J&J Staffing Resources told him that they would “call [him] if something comes up”
after he called to request a new assignment two days after his assignment had
ended.31 He further asserts that he could not have quit where the Employer called
on October 4, 2017 to ask if he Was available, arguing if “an employee voluntarily
quit, why would you call[] him and ask him if he or she is available?”32
11. Employee raised these same issues at the Appeals Referee hearing.33
After reviewing all of the evidence and testimony presented to the Board, including
29 19 Del. C. § 3327(b).
30 Id
31 Appellant’s Opening Br. at 1.
32 lar
33 R. at 33-34, 42-45.
what was presented to the Appeals Referee,34 the Board ultimately found in favor of
Employer.
12. The Board found that Employee only called Employer after his
assignment ended on June 26, 2017 when he returned a phone call from Employer
on October 4, 2017 and when he called on C)ctober 19, 2017 to state he was
available35 The Board found that these calls were his only contact with Employer
after his assignment ended and that Sharp’s testimony about when Employee called
was substantiated by the phone records.36 The evidence to support Employer’s
position that Employee had not called was provided through notes from Employer’s
old and new computer systems that tracked employees’ phone calls to Employer’s
office.37 The Board ultimately found that Employee did not comply with Employer’s
policy by not maintaining contact and therefore he voluntarily quit without good
cause.38
13. This Court finds that there is substantial evidence to support the Board’s
findings and conclusions that Employee voluntarily left his employment without
34 R at 68.
33 Id. at 87.
36 Id,
37 Id. at 86.
38 R. at 87.
good cause by not maintaining contact with Employer as was required per its policy.
The findings and conclusions of the Board are without legal error. The Board did
not abuse its discretion in determining that Employee is disqualified from the receipt
of unemployment benefits.
NOW, WHEREFORE, this 24th day of October, 2018, the January 30, 2018
decision of the Unemployment Insurance Appeal Board is hereby AFFIRMED.
IT IS SO ORDERED.
Vivian L. Medinilla
Judge
oc: Prothonotary
cc: J ames K. Kazongo
All Counsel of Record (Via File&Serve)