Berry v. Mayor and Council of Middletown, Delaware

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE
LAWRENCE BERRY, JR.,
Claimant-Appellant,
V. C.A. No. N19A-12-004 VLM
MIDDLETOWN, DELAWARE and
THE UNEMPLOYMENT
)
)
)
)
:
MAYOR AND COUNCIL OF )
)
INSURANCE APPEAL BOARD )
)
)
Employer-Appellees.
ORDER
Submitted: December 31, 2020
Decided: March 4, 2021
Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment
Insurance Appeal Board, AFFIRMED.
Lawrence Berry, Jr. Pro se.
Scott E. Chambers, Esquire, Schmittinger & Rodriguez, P.A., Dover, DE.
Attorney for Appellee Mayor and Council of Middletown, Delaware.
Daniel Mulveny, Esquire, Department of Justice, Wilmington, DE.
Attorney for Appellee Unemployment Insurance Appeal Board.
MEDINILLA, J.
I. INTRODUCTION
Appellant, Lawrence Berry, Jr. (“Berry”), appeals a decision of the
Unemployment Insurance Appeal Board (the “Board”) that found that Berry’s
Appeal from an Appeals Referee’s (the “Referee”) decision was filed untimely,
resulting in the denial of insurance benefits under 19 Del. C. § 3318(c). For the
following reasons and upon consideration of the arguments, submissions of the
parties, and the record in this case, the Court hereby affirms:
Ih Berry was employed as a full-time municipal worker for the Mayor and
Council of Middletown, Delaware (“Employer”), between October 2018 and June
2019.! On June 12, 2019, Berry suffered a work-related injury and filed an accident
report with Employer the following day.* After filing the report, Berry, in
conformance with Employer’s policy, reported for a drug screening.’ The screening
came back positive.‘
yah After receiving the drug screening results, Berry met with Employer’s
Human Resources Director Theresa Berry.” During this meeting, Berry admitted
that he had smoked marijuana.® Employer had a zero-tolerance policy for drug and
"Rat 15.
2 Id. at 16.
3 Id.
4 Id.
> Id. at 30-31. Theresa Berry has no relationship to Appellant Lawrence Berry, Jr.
°R. at 30.
alcohol abuse.’ On June 19, 2019, Berry was terminated for violation of the zero-
tolerance policy.
ar Berry filed a claim for unemployment benefits with the Division of
Unemployment Insurance.’ On July 19, 2019, a Claims Deputy found that Employer
discharged Berry for just cause disqualifying him from unemployment benefits
pursuant to 19 Del. C. § 3314(2).? Berry timely appealed to an Appeals Referee.!°
On August 6, 2019, following a hearing, the Referee affirmed the Claims Deputy’s
decision that Employer met its burden of proof that Berry’s termination was for just
cause.'! Berry had until August 16, 2019, to file a timely appeal.'? He failed to do
SO.
4. On October 29, 2019, Berry filed his untimely appeal to the Board."
Berry argued that he had received the August 6 mailing of the Referee’s decision,
sent a timely appeal on August 11, 2019, but never heard back from the Board so he
filed again.'* The Board could not find a record of his August filing. On November
26, 2019, the Board upheld the Referee’s decision finding that (1) Berry had failed
to provide proof that he had filed a timely appeal; (2) no evidence had been provided
1 Id. at 38.
8 Td. at 1-2.
9 Id. at 2.
10 See id. at 1-6.
"Td. at 47-48.
12 See id. at 47.
13 Td. at 65.
\4 Td. at 66.
that a Departmental error had occurred; and (3) there were no “severe circumstances
sufficient to justify the exercise of the Board’s discretion to hear the appeal in the
interest of justice”.!°
5 On December 13, 2019, Berry appealed the Board’s decision. On
March 10, 2020, Berry, acting pro se, filed his opening brief. On March 27, 2020,
Employer filed its response. On April 7, 2020, the Board filed its response. On
August 27, 2020, Berry filed his Reply brief and this Court was assigned the matter
on December 31, 2020. The matter is now ripe for decision.
Il. 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.”'® Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”'’ The Court does not “weigh the evidence or make determinations
'SR. at 69.
'6 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 States Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. §
3323(a)).
'7 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)).
3
based on credibility or facts.”!® Absent an abuse of discretion by the Board, this
Court will uphold the Board’s determination.’
II. DISCUSSION
7. Pursuant to 19 Del. C. § 3318(c), an Appeal’s Referee’s decision “shall
be deemed to be final unless within 10 days after the date of notification or mailing
of such decision further appeal is initiated pursuant to [19 Del. C.] § 3320... .”%°
The statutory limit is jurisdictional in nature and failure to comply with this statutory
requirement will prohibit the Board from accepting an appeal.”!
8. In cases of severe circumstances, however, the Delaware Supreme
Court has found that the Board itself may exercise its discretion under 19 Del. C. §
3320 to accept an untimely request for appeal.”’ It is rare that the Board will find
such circumstances exists and choose to exercise its power.”? In cases where the
Board has exercised its discretion, typically there is a showing of administrative
error or the Board finds that the interests of justice requires the Board to take action.”4
18 Td. (citing Johnson v. Chrysler Corp., 203 A.2d 64, 66 (Del. 1965)).
'9 See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
20 19 Del. C. § 3318(c).
2! Chrysler Corp. v. Dillon, 327 A.2d 604, 605 (Del. 1974).
22 Funk, 591 A.2d at 225.
23 Flowers-Nichols v. Tri-State Waste Solutions, 2011 WL 2176515, at *3 (Del. Super. May 31,
2011) (citing George v. Unemployment Ins. Appeal Bd., 2008 WL 4147350, at *2 (Del. Super.
Sept. 9, 2008)).
4 Flowers-Nichols, 2011 WL 2176515, at *3 (citing Funk, 591 A.2d at 225; George 2008 WL
4147350, at *2).
When reviewing whether the Board should have used its authority to take an
untimely appeal, the Court must consider whether the Board abused its discretion.”
A. Berry’s Appeal Was Untimely Under 19 Del. C. § 3318(c)
9. Berry claims that he had submitted an appeal to the Board on August
11, 2019, but for some reason it never arrived.*° In Berry’s Opening Brief he
presents a hand written letter dated August 11, 2019, which he appears to offer in
support of his claim that he timely filed his appeal.”’ The Board responds that this
letter was never provided to it as there is no evidence to support that it was mailed
on August 11, 2019.78 Employer similarly argues that the record was devoid of any
evidence to support Berry’s claim that he timely mailed his appeal.”
10. The Board had nothing in the record to support Berry’s claim that he
mailed a timely appeal on August 11, 2019, despite his concession that he had
received the Referee’s August 6 mailing.*° The record reflects that the only appeal
filed was on October 29, 2019, through the Department of Labor (“DOL”) Portal.!
11. Any evidence of Berry’s August 11, 2019, appeal is first noted in his
Opening Brief. There is no evidence that he mailed the letter on that date or before
23 See Funk, 591 A.2d at 225-26.
26 See Notice of Appeal, D.I. 1.
27 See Opening Brief, D.I. 10, at P#2.
28 Letter to the Court Serving as Board’s Answering Brief, D.I. 12, at 2.
2° Answering Brief of Mayor and Council of Middletown, D.I. 11, at 6.
39 See R. at 66.
3! See id. at 65-67.
the August 16, 2019, deadline.*” There is no postmark on the letter nor is there any
receipt of mailing. This letter was also not provided to the Board prior to its decision.
Thus, the Court finds that there was substantial evidence to deny Berry’s appeal as
untimely under 19 Del. C. § 3318(c) on the above procedural grounds.
B. No Severe Circumstances Exist Under 19 Del. C. § 3320
12. The Board considered and found no administrative errors that occurred
with DOL, nor was any evidence provided showing such errors.*? After so finding,
the Board further declined to consider sua sponte the substance of Berry’s appeal,
deciding it would not be in the interest of justice to do so. ** Although not raised by
Berry here, the Court further considers whether the Board abused its discretion when
it made this decision, and finds it did not.
13. Even ifthe Board had heard the appeal, there was substantial evidence
to uphold the Referee’s decision on the merits. Berry admitted at the hearing that he
had smoked marijuana in violation of Employer’s zero-tolerance drug and alcohol
policy.3> Yet Berry’s challenge was that he was not provided with the results.*° Any
such evidence would have served only to corroborate what had already been
established through Berry’s admission that he smoked marijuana in violation of the
3? See Opening Brief, D.I. 10, at P#2.
33 See R. at 69.
34 Td. at 69 n. 3.
35 Id. at 30, 38.
36 Notably, Berry concedes in his August 11, 2019, submission to the Board he “was given a
copy of the alchol [sic] test.”
Employer’s policy. Thus, it would not have been in the interest of justice to hear
Berry’s appeal on the merits. The outcome would have been the same.
14. As there was no administrative error and it would not have been in the
interest of justice for the Board to hear Berry’s appeal, the Court finds that the Board
did not abuse its discretion in finding that severe circumstances did not exist to
accept the appeal sua sponte.
15. The record supports the Board’s decision that Berry did not timely file
his appeal and further decided not to exercise its discretion to accept Berry’s
untimely appeal. There is no error of law. For the foregoing reasons, the Board’s
decision is AFFIRMED.
IT IS SO ORDERED. Pa
/ Vivian L. Médinilla
f
/ Judge [ A