Herold v. Sears, Roebuck and Co.
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SUPERIOR COURT OF THE STATE DELAWARE OF J EROME O. H ERLIHY J UDGE N EW C ASTLE C OUNTY C OURT H OUSE W ILMINGTON, DE 19801-3733 October 26, 2004 Ellen H erold 2614 Faulkland Road Wilmington, Delaware 19808 Mary Page B ailey, Esquire Deputy Attorney General Department of Justice 820 North French Street Wilmington, DE 19801 RE: Ellen S. Herold v. Sears & Roebuck C.A. No. 04A-01-006-JOH Submitted: September 16, 2004 Decided: October 26, 2004 Upon Appea l from the Unem ployme nt Insurance A ppeal Boa rd by Ellen H erold- AFFIRMED Dear Ms. Herold and Ms. Bailey: Ellen Herold has app ealed to th is Court the decision of the Unemployment Insurance Appeal Board denying her claim for benefits. Herold had at one time worked full-time for Sears and Roeb uck. Due to medical reasons, she discontinued work. After a period of time, she returned to work, but by agreem ent with Sears, sh e was allo wed to w ork parttime. She started at 15 - 20 hours per week. Over a period of time, however, Sears reduced the numb er of hours per week she 1 worked. As a result, she applied for unemployment com pensation. Statutory language and Department of Labor regulations taken together do not provide for benefits for persons working part-time whose part-time hours are reduced. The issue presented is whether there is anything in Herold s work record/history to allow for an aw ard of benefits. The Court c oncurs w ith the determination made below that there is no authority to award Herold benefits for a reduction in the number of part-time hours worked. The decision of the Board is AFFIRMED. Factual Background Herold was employed by Sears & Roebuck ( Sears ) from January 19, 1990 to June 1998. Due to h ealth reasons, Herold left Sears employ and went on disability. In June 2000, Herold asked her former supervisor w hether she could return to Sears working 15 to 20 hours per week. She was hired on that basis , but wa s not requ ired to com plete another employment application. She was required to take the d rug test. H erold is still employed part-time by Sears. As an associate of the merchandise customer assist team, she earns $7.03 an hour. As she is over age 65, her disability payments are now social security payments. In April 20 03, the ho urs Her old wo rked w ere redu ced from 15 to 20 hours per week to 13, then 12 and finally to 9 hours per week. Her hours were increased in June 21, 2003 to about 15 hours per week, when Herold filed her last claim. Herold claims that when her hours were cut back, Sears Human Resources Department ( HR ) told her to file for 2 partial une mploy ment. 1 Herold applied for unemployment benefits effective April 20, 2003. She received benefits for the time period she sub mitted cla im form s. Whe n she retu rned to h er 15 to 20 hour per week schedule in 2003, Herold ceased to submit claim forms. She states that she received benefits for nine w eeks. In effect, the re al issue he re is whe ther she h as to repay benefits received for those nine weeks. On May 21, 2003, a Claims Deputy determined that Herold was n ot eligible for unemployment benefits effective with or for the week ending April 26, 2003. The Notice of Determination stated that she was not considered to be an unemployed person entitled to receive bene fits, as there were no changes in the condition of hire. The Notice continued that any overpayment established would be based upon the Notice. The Claimant and Employer Appeal Rights section stated that the determination would become final on May 31, 2003, unless a written appeal was filed. Upon receipt of the Notice, on May 28, 2003, Herold took the notice the Department of Labor s Pencader office. There a processor told Herold to ignore the letter and not do anything, as she would receive something else. Herold noted the conversation on the back of an envelope. Whe n she rec eived the overpay ment d etermin ation, she came to file her app eal. The last day to file an appeal was May 31, 2003. On October, 23, 2003, a referee determined that Herold had been given faulty information at the Pen cader office. 1 No one from Sears appeared before (1) the Claims Deputy, (2) the Appeals Referee, or (3) the Board. Nor did Sears participate in the briefing in this case. 3 Therefore, as a result of Department of Labor misinformation, her appeal was determined to be timely and a hearing was scheduled before an Appeals Referee. At the conclusion of the November 19, 2003 hearing, the Referee determined that Herold was not an unemployed individual and thereby was ineligible for benefits. On November 26, 2003, Herold appealed the Referee s decision to the Board. After the conclusion of the December 10, 2003 hearing, the Board determined the appeal was without merit, adopting the Referee s findings of fact as supported by substantial evidence and that the Referee s d ecision was w ithout any errors o f law. It adopted the same rea sons for ineligibility as the C laims Dep uty and Re feree had cited. In affirming the Referee s decision, the Board declined to permit further review. The decision became final on January 3, 2004. On January 12, 2004, Herold, acting pro se, filed this ap peal. She states the followin g groun ds for app eal: 1. H.R. person from [Sears] directed me to U .I. to file for partial unem ploym ent, due to reduction of scheduled hours (until regu lar p/t hours returned ). 2. Although duly notified [Sears] did not participate in person or via phone at any of 3 hearings. 3. In documents from previous hearings, it was clearly stated that there was evidence of D epartmental er ror I was given faulty information 4. PG 2 from Guide to U .I. Benefits - \ Partial Ben efits * PG 8 [From Guide to U.I. Benefits - / Partial Benefits] *As directed by U I. Rep A. Latney, on 4/22/03 [Collected partial benefits by completing gross earnings on space indicated, which I 4 did for 9 wks. This would be deducted from my w eekly cla im benefit Ë ] The only thing achieved in life without effort is failure!2 Herold s Claim Herold claims both Sears and the Dep artmen t of Labo r misinfo rmed h er as to whether she could collect unemployment benefits. Because of the misinformation provided, Herold contends that she should not be forced to repay the $543.0 0 in unemployment benefits she received. Standard of Review On an appeal from the Board, this Court s role is to determine whether the B oard s conclusions are supported by substantial evidence and are free from legal error. 3 Substantive evidenc e is such relevant e vidence as a reaso nable mind might accept as adequa te to support a conclusion.4 This Court does not weigh the evidence, determine questions of witness credibility or make its own factual findings and conclusions. 5 The Court relies on the Appeals Referee s determination for the findings of fact when the Board affirms the Appeals Referee s decision after additional evidence has been taken.6 Discussion Herold states she wants to keep the five hundred and forty-three dollars ($543.00) 2 Herold s Notice of Appeal. Docket #1. 3 General Motors v. Jarrell, 493 A.2d 978, 980 (Del.Super. 1985). 4 Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993). 5 Air Mod. Corp. v. E.I. Du Pont de Nemours & Co., 215 A.2d 434, 438 (Del. 1965). 6 Boughton v. Division of Unemployment Ins., Dep t of Labor, 300 A.2d 25, 26 (Del. 1972). 5 paid her in unemployment benefits. She complains that she was given incorrect information and, withou t that incorrect inform ation, she would never have applied for unemploym ent benefits. Sears representative, she asserts, suggested that Herold should go to the Depar tment of Labor and apply for benefits. There is no indication that Sears HR informed Herold that she w ould be e ligible to rec eive ben efits, just the s uggestio n as to where she might get possible assistance. Herold questions why the Department permitted her to apply for unemployment benefits and pay benefits ev en after it was disc overed th at Hero ld was still w orking p arttime at reduced ho urs. When Herold initially visited the Department s office on April 22, 2003, she informed the representative she was employed part-time but her hours had been reduced. The rep resentativ e, how ever, assis ted Her old in com pleting the claim form. Looking at her application for benefits, Herold states that she was still employed part-time. While her working hours were reduced, Herold followed instructions, and each week, returned the claim s forms to the Dep artmen t. She w as sent be nefit chec ks even after Ap ril 28, 2003, when it was de termined that she was not eligible to receive benefits. According to 19 Del. C. § 3302(17), a person is unemployed when such person received either no wages or, where w orking less than full-time, the wages received are less than the wee kly bene fit amount plus the greate r of $10 o r 50% of the w eekly be nefit amou nt. The section continues that the Department of Labor prescribes regulations making distinctions, as the Department deems necessary. Regulation 15, Department of Labor, 6 Division of Unemployment Insurance regulations, defines a partially unemployed person as one who during a particular work week, (I) earned less than his weekly benefit amount plus two dollars, (II) was employed by a regular emplo ye[r], (III) w orked les s than his normal customary full-time hours for such regular employer because of lack of full-time work. 7 Herold does not qualify as a partially unemployed person. She earned less than her weekly benefit amount plus two dollars and was employed by a regular employer, here Sears. However, as sh e was not employed full-time, she did not work less than her customary full-time ho urs. Since returning to work for Sears , Herold was em ployed to work no more than 20 hours per week. There was no change in the conditions of her hire. There is substantial evidence showing that Herold was employed part-time and Herold does not dispute it. T he Boa rd s hold ing is free fr om leg al error in th at Hero ld is not entitled to unem ploym ent bene fits because part-time employees are not included in the definition of partially unemployed persons. Conclusion For the reasons stated herein, the decision of the Unemployment Insurance Appeal Board is AFFIRMED. Sincerely, 7 Regulation 15(1)(a)(III). 7 JOH/krb cc Prothonotary 8
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