Dowlin v. Kelly Services

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
DEBRA DOWLIN )
)
v. ) N13A-10-003 MJB
)
KELLY SERVICES and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD )
Submitted: July 9, 2014
Decided: August 5, 2014
Upon Petitioner’s Appeal from the Unemployment Insurance Appeal Board’s Decision.
AFFIRMED.
OPINION
Debra Dowlin, pro se, Appellant.
Kelly Services, Appellee
Catherine Damavandi, Esquire, Deputy Attorney General, Wilmington, Delaware,
Attorney for Appellee Unemployment Insurance Appeal Board
BRADY, J.
I. STATEMENT OF FACTS
Debra Dowlin (“Petitioner”) worked for Wilmington Trust 1, through Kelly Services. Her
expectation was that the job was that of a trust assistant, an individual who “supports…the trust
officers and helps out with customers…and doing paperwork.” 2 When she began work, she was
assigned the responsibility of “three years of back filing.” 3 She acknowledged that she was
informed that “when people start there, they usually help out with the filing.” 4 She contends she
was told the filing duties would last a few weeks, but after a month, she was still assigned to file,
and her duties included moving large boxes of files, as a result of which she claimed “[her] back
finally went out.” 5 Petitioner then approached her supervisor and discussed the difference
between her duties and the “agreed upon role...a Trust Administrator with the possibility of full
time employment at M&T Trust Associates.” 6 The director told Petitioner she would continue to
do her job as a filing clerk, at which time Petitioner said that she “did not want to be a full-time
file clerk.” 7 Petitioner alleges that the director became upset when she told him that she was not
interested in full-time employment as a file clerk. 8 Petitioner contends she asked the director if
he wanted her to leave, 9 the director said “yes” and Petitioner left. 10
1
The record is unclear precisely which entity employed the Petitioner. She refers to the employer as Wilmington
Trust in her testimony before the Board and Appeals Referee, and as M&T Trust Associates in her brief. Compare
R. at 18, Dowlin v. Kelly Srvs. (C.A. No. N13A-10-003) (stating that the employer was Wilmington Trust); and
Pet’r’s Opening Br. at 1, Dowlin v. Kelly Srvs. (C.A. No. N13A-10-003) (stating that the Petitioner was employed
with M&T Trust Associates).
2
Rawle at 38, Dowlin v. Kelly Srvs. (C.A. No. N13A-10-003).
3
Id.
4
Id.
5
Id.
6
Pet’r’s Opening Br., at 1 Dowlin v. Kelly Srvs. (C.A. No. N13A-10-003).
7
Id. at 2.
8
R. at 20, Dowlin v. Kelly Srvs. (C.A. No. N13A-10-003)
9
Id.
10
Id.
1
The Petitioner filed for unemployment benefits, which were denied, and the Appeals
Referee affirmed. 11 The Petitioner then appealed to the Unemployment Insurance Appeal
Board (“U.I.A.B.”), which denied Petitioner’s request for unemployment benefits, finding
that Petitioner voluntarily left her employment. 12 Petitioner appeals the U.I.A.B.’s decision
in order to receive unemployment benefits and avoid having to reimburse benefits received
prior to the U.I.A.B.’s decision.
II. PETITIONER’S CONTENTIONS
Petitioner asserts that she “did not quit,” 13 but was asked to leave, and should not be
denied benefits. Petitioner also presented “new” evidence consisting of email correspondence
with Gigi Traynor, an employee of Kelly Services. 14 Petitioner also notes that she is unable to
pay back the money she already received prior to the U.I.A.B.’s ruling.
III. STANDARD OF REVIEW
The standard under which a court reviews a decision of the Board is deferential. 15 The
Board’s decision is only to be disturbed in very limited circumstances. 16 In reviewing a decision
on appeal from the Board, the Court must determine if the decision is supported by substantial
evidence and is free from legal error. 17 Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 18 Further, a showing of
substantial evidence requires less than a preponderance of the evidence, but “more than a mere
11
Id. at 1-9, 27-30.
12
Id. at 43 (“[T]he Board finds that [Petitioner] voluntarily left her employment without good cause connected to
her work.”).
13
Id. at 51, , Dowlin v. Kelly Srvs. (C.A. No. N13A-10-003) (claiming the Petitioner did not quit her job).
14
The Court notes that it cannot consider evidence that was not presented to the U.I.A.B. Hubbard v. Unemployment
Ins. Appeal Bd., 352 A.2d 761, 763 (Del. 1976) (“[T]he Superior Court is limited to the record which was before the
administrative agency). The substance of the emails was a part of the record before the hearing officer through
testimony of both Petitioner and Traynor.
15
29 Del. C. § 10142.
16
Delaware Transit Corp. v. Roane, 2011 WL 3793450, *6 (Del. Super. Ct. Aug. 24, 2011).
17
Unemployment Ins. Appeal Bd. of Dept. of Labor v. Duncan, 337 A.2d 308, 309 (Del. 1975).
18
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. Super. Ct. 1994) (citing Olney v. Cooch, 425
A.2d 610, 614 (Del. 1981); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
2
scintilla.” 19 If there is substantial evidence supporting the Board’s decision and no error of law
exists, the Court must affirm. 20 The court does not weigh evidence, determine questions of
credibility, or make its own factual findings. 21 The court’s role is merely to determine if the
evidence is legally adequate to support the agency’s factual findings. 22
IV. DISCUSSION
Petitioner’s sole argument is a continued and persistent disagreement with the findings of
fact by the Board and those who previously reviewed her claim. Petitioner claims the Board
incorrectly found that she voluntarily left her position. 23 Petitioner’s assertion asks the Court to
reexamine the factual findings of the U.I.A.B, and substitute a different finding, one consistent
with her contentions. The reexamination of the U.I.A.B.’s findings of fact is not for this Court.24
It is for the Board to make findings of fact, weigh credibility and, absent an error of law, if the
facts, as the Board finds them to be, are substantiated by the evidence, the decision must be
affirmed. 25
Indeed, there is substantial evidence to support the Board’s finding that the Petitioner
voluntarily left her employment. By her own account, she was dissatisfied with the position.26
The job no longer appeared to have the same opportunity for advancement that she had once
thought. 27 She felt heavy work was unfairly assigned to her. 28 Further, she specifically advised
19
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988); Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 477 (1951) (“Accordingly, it must do more than create a suspicion of the existence of the fact to be
established. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal of a directed verdict when the
conclusion sought to be drawn is one of fact for the jury.”).
20
City of Newark v. Unemployment Ins. Appeal Bd., 802 A.2d 318, 323 (Del. Super. Ct. 2002).
21
Id. at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. Super. Ct. 1986).
22
Keim v. Greenhurst Farms, 2001 WL 1490060, *2 (Del. Super. Ct. Nov. 19, 2001) (citing 19 Del. C. § 3323(a)).
23
Rawle at 51
24
Mathis v. Delaware River & Bay Auth CIV.A. N11A10002MJB, 2012 WL 5288757, at *2 (Del. Super. Ct. Aug.
22, 2012).
25
Id. (“The Court does not weigh evidence, determine questions of credibility, or make its own factual findings.”)
(citations omitted).
26
Rawle at 19-20
27
Id.
3
the employer that she did not want to do the work that the employer indicated was the job
available. 29 Further, the record reflects that if Petitioner wished to stay on the job 30, there was
work available, at the paid rate of $20 per hour. 31
Finally, the correspondence between Petitioner and Ms. Traynor cannot be considered
since, by the Petitioner’s own admission, 32 it is outside the record. 33
V. CONCLUSION
The U.I.A.B. made findings of fact that are supported by the evidence before it. The
Court finds no legal error. The decision of the Board is AFFIRMED.
IT IS SO ORDERED.
______________/s/_________________
M. Jane Brady
Superior Court Judge
28
Rawle at 6 (“I am 59 years old and was being ‘used’ while younger women sat at their desk all day [without]
helping.”).
29
Rawle at 20 (“I let him know I would really not like to file everyday… [a]nd he says well the job is now a file job.”).
30
R at 22 (“She was in as an administrative assistant.”).
31
R at 23-4.
32
Petitioner states in her Opening Brief that this communication “was left out of [her] previous paperwork.”
33
Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761, 763 (Del. 1976).
4