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DARREN D. SMITH Appellant
vs.
TRIPLE C. RAILCAR SERVICES Appellee.
 
Case:
C.A. No. 93A-11-005
 
Location:
SUPERIOR COURT OF DELAWARE NEW CASTLE
 
Date:
July 5 1994 Decided
 
Attorneys:
Darren D. Smith Pro Se New Castle Delaware Appellant.Triple C. Railcar Services Pro Se Newark Delaware Appellee.
 
Court:
COOCH
 
Author:
The Hon. Justice Richard R. Cooch
 

This 5th day of July 1994 upon consideration of Appellant's Opening Brief and of the record n1 it appears to the Court that:

1) This is a pro se appeal by Darren D. Smith (Employee) from a decision of the Unemployment Insurance Appeal Board (the Board) reversing a determination by the Appeals Referee (the Referee) that had granted Employee unemployment compensation benefits. The Board ruled that Employee voluntarily terminated his employment without good cause when he failed to return to work and that Employee had failed to exhaust the administrative remedies available to him.

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n1 Appellee did not file an Answering brief in this matter.

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2) Employee argues n2 that he did not voluntarily leave his employment with Triple C. Railcar Services (Employer) but was involuntarily terminated without "just cause' by Employer when he refused to attend a drug rehabilitation program. As a result Employee asserts he is entitled to unemployment compensation. Employee's argument can also be construed to suggest that the Board's decision is not supported by substantial evidence.

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n2 This Court has attempted to characterize Employee's assertions as recognizable legal arguments. See Jackson v. Unemployment Insurance Appeal Bd. Del. Super. C.A. No. 85A-NO-9 Bifferato J. (Sept. 24 1986) Letter Op. at 3 (holding that the Superior Court may exhibit some degree of leniency toward a pro se litigant to ensure that his case is fully and fairly heard).

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This Court has jurisdiction to hear this appeal pursuant to 19 Del.C. SEC.(S) 3323.

3) Employee worked for Employer as a sandblaster from November 28 1988 to sometime around February 19 1993. n3 On April 23 1993 Employee filed a claim for unemployment compensation pursuant to 19 Del.C. SEC (S) 3317. Employee told the Claims Deputy that he had had a "conflict" with his supervisor. He stated that his supervisor refused to fire him but that he refused to quit. Employee told the Claims Deputy that thereafter he and his supervisor (referring to Brian Lagerence (Lagerence)) had a meeting with Employer's vice-president (referring to Chuck Copeland (C. Copeland) n4) who stated that Lagerence had the authority to "run the operation and what he says goes." Employee told the Claims Deputy that he was "out sick" and when he returned his supervisor said something that "irritated" him and that Employee "blew up" at him. Employee also told the Claims Deputy that at that time he was in the process of being placed in another position within the company; however his supervisor told another member of management that Employee would not be with the company much longer. During a telephone interview Employer's Chief Executive Officer Elbert Copeland (E. Copeland) told the Claims Deputy that although he was not present at the meeting during which Employee quit he believed that Employee was advised that if he refused to attend a drug rehabilitation program that his job would be in jeopardy and that Employee "stormed out stating [that] he quit." On May 3 1993 the Claims Deputy concluded that Employee voluntarily quit his employment without "good cause" and determined pursuant to 19 Del.C. SEC.(S) 3315(1) n5 that Employee was not eligible to receive unemployment benefits.

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n3 Employee also had worked for Employer from June 14 1988; through August 1988 however that period of employment is not relevant to the issue of his recent separation from employment.

n4 Vice-President Chuck Copeland is referred to here as "C. Copeland" to distinguish him from Chief Executive Officer Elbert Copeland "E. Copeland."

n5 sec.(s) 3315. Disqualification for benefits.

An individual shall be disqualified for benefits:

(1) For the week in which he left work voluntarily without good cause attributable to such work and for each subsequent week thereafter until he has been employed in each of 4 subsequent weeks (whether or not consecutive) and has earned wages in covered employment equal to not less than 4 times the weekly benefits amount.

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4) Employee appealed this determination and a hearing was held on June 10 1993 before the Referee. At the hearing Employee appeared pro se while the Employer did not appear. n6 Employee testified that about a week prior to his termination he had missed two days work due to a toothache. He testified that he "called in" the first day but that he did not do so on the second day. Employee testified that when he returned to work Lagerence said something to him that Employee felt was "inappropriate which resulted in an argument. Employee stated that he suspected Lagerence got upset because Employee screamed" at him in front of his peers. Employee testified that later that day his immediate supervisor John Southers (Southers) asked Employee if he would be willing to handle a "brake specialty job" since "it was slow" in Employee's department. Employee stated that when he and Southers advised Lagerence of this job assignment Lagerence stated there's no reason for you to train Darren for that particular job because he's not gonna be with us much longer. (Tr. Appeals Ref. Hr'g at 5). Employee stated that he felt that Lagerence had some sort of "vendetta" against him and stated that he Lagerence and C. Copeland had a meeting and "panned everything out" after which he went back to work. (Tr. Appeals Ref. Hr'g at 6). Employee testified that about one week later Southers again asked Employee if he would take over the brake job. Employee testified that again Lagerence had been telling people that Employee wasn't going to be there much longer.

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n6 Employer disputes that it received proper and timely notice of the hearing before the Referee and proffers that its failure to have received notice of the hearing was the reason for its non-appearance.

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Employee testified also that in early January Employer gave all employees a drug test and stated that about 32 out of 36 employees failed the test. n7 Employee stated that the only reason he failed was because he had used some drugs over the holidays. Employee stated that he confronted Lagerence about certain rumors he had been hearing and that Lagerence told him that the statements he had made were taken out of context and that he meant that Employee would not be there long because he felt Employee needed to go to a drug rehabilitation facility. Employee stated that he never got high on the job but only did it on his own time. Employee testified that at this time Lagerence handed him a termination paper saying I should have brought you this piece of paper. It may be in your unemployment file. (Tr. Appeals Ref. H'rg at 9). Employee testified that it was the next morning that he woke up with a toothache and called in sick. Employee stated that Lagerence told Employee to be sure he was in on the following day as Employer really needed him. Employee stated that he would come in when he could talk with C. Copeland regarding their "problem.

According to Employee Lagerence stated that C. Copeland would be in that Friday which Employee stated was when he would come in.

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n7 Employer preformed an unannounced drug test on (apparently) all employees in the beginning of January which Employee admittedly failed. Employee claimed that approximately 32 of the 36 of employees tested failed. Employer contradicted this number at the Board hearing testifying that only 11 of the 36 employees failed the test.

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Employee further testified that he went in to work on Friday and that he Lagerence and C. Copeland had a meeting during which Employee claims that they told him that in order for him to work there he had to enroll in a drug rehabilitation program. Employee stated that he refused because he felt that he was being "singled out" as none of the other employees who failed the drug test were being asked to do this. Employee stated that his last day of work was February 10 1993.

5) The Referee reversed the decision of the Claims Deputy and held that Employee was qualified to receive unemployment benefits. The Referee stated that under 19 Del.C. SEC.(S) 3315(2) n8 the employer has the burden of proving that the employee was discharged for just cause in connection with his work. The Referee held that since Employer did not appear at the hearing it did not carry its burden of proof. The Referee held that Employer's request (that Employee go to a drug rehabilitation center) was unreasonable primarily because the employer offered no testimony to support a finding to the contrary. (Appeals Ref. dec. at 3). This decision was appealed by Employer to the Board.

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n8 SEC.(S) 3315. Disqualification for benefits.

An individual shall be disqualified for benefits:

(2) For the week in which he was discharged from his work for just cause in connection with his work and for each week thereafter until he has been employed in each of 4 subsequent weeks (whether or not consecutive) and has earned wages in covered employment equal to not less than 4 times the weekly benefit amount. . . .

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6) The Board held a hearing on July 14 1993 at which Employee appeared pro se and Employer appeared pro se with Lagerence and E. Copeland appearing on its behalf. Lagerence and E. Copeland both testified to the fact that they did not receive timely notice of the Referee's hearing. Lagerence then testified that the drug screening had nothing to do with Employee's separation from the company and that Employee had missed three days of work without calling in. On the third day Lagerence stated Employee called and asked C. Copeland to come to his house but that C. Copeland told Employee to come to work the next day to discuss matters. Lagerence testified that he and C. Copeland were trying to figure out how to handle Employee's absentee problem when Employee came in and said that he was there to resign.

Lagerence stated that Employee said that he was dissatisfied with his position and that he wanted to travel. Lagerence claims that when he asked Employee if there was any other job within the company that he would like to do Employee stated that he wanted to be a "switch mobile operator." Lagerence testified that he asked Employee if he had ever expressed this desire to his supervisors to which Employee responded that he had not. Lagerence stated that Employee again emphasized his desire to travel to which Lagerence stated that he told Employee that working for Employer did not lend itself to such travel opportunities. Lagerence claims that Employee then said "he was quitting." Lagerence further testified that Employee would not sign a resignation letter nor his termination report. Lagerence emphatically stated that he did not discharge Employee. (Tr. Bd. Hr'g at 7).

E. Copeland responded to the Board's question regarding the apparent differences between Lagerence's testimony and the telephone testimony given by E. Copeland to the Claims Deputy. Lagerence then interjected that he and C. Copeland were planning to discuss the rehabilitation issue with Employee when he came in and resigned. Lagerence stated that they discussed the issue only briefly about one-half hour after Employee initially resigned.

Employee testified that the whole problem stemmed from his misunderstanding with Lagerence. He stated that Lagerence treated him differently came down harder on him than on other employees who had also missed work. Employee stated:

Him being my employer or my immediate supervisor I assumed he could read between my lines or I assumed that he had a plan in order to get me where he wanted me to be. I had been stuck in this position for 2 1/2 years. I want some change but the change that I wanted wasn't what they wanted. They trained me on several occasions to be to weld. I didn't want to weld. I didn't like getting burned by the fire. They trained me to operate the trap mobile and that was something that I enjoyed doing something that I would like to do because that would be a step in moving toward a conductor somewhere also if the if it ever come to be. . . .

(Tr. Bd. Hr'g at 14). Employee admitted that when he went back to work on the fourth day he told Lagerence and Chuck that he wasn't satisfied with his job. Employee stated that he told them that he was not going to quit and that he would go back to work if he did not have to go through a drug rehabilitation program. Employee testified that he missed work due to a toothache but that he did "call in." Employee stated that he did not quit but that he did not return to work. Lagerence testified that Employee was not told that he would have to go through a rehabilitation program in order to continue to work with the company. At the end of the hearing the following dialogue occurred:

[BOARD:] But this conversation about the drug going to rehab and all did not occur at the time the last time you talked to him before you resigned or quit or . .

[EMPLOYEE:] It was implied.

[BOARD:] It was implied but did they come out directly and said that you cannot work here unless you go to rehab?

[EMPLOYEE:] No they didn't.

[BOARD:] And did you come back on the 11th?

[EMPLOYEE:] No I did not.

(Tr. Bd. Hr'g at 18-19).

  1. The Board reversed the decision of the Referee and held in part:
The Appeals Referee's decision was based upon the unrefuted testimony of the claimant as the employer failed to appear before the Referee. Both parties have now appeared before the Board and presented additional testimony. Based upon that evidence and the record the Board reverses for the following reasons.

Here the Board is presented with two different versions of the facts. As fact-finder the Board finds the testimony of the employer to be the more credible. The claimant indicated that he was dissatisfied with his job and wanted change. This fits in with the employer's version of the facts. The Board therefore finds that the claimant voluntarily quit his job because he was dissatisfied with his job and wanted to be a switcher. He was not discharged for failing to enter a drug rehab.

(Bd. dec. at 2). The Board further held that Employee's job dissatisfaction did not amount to "good cause" and that Employee had failed to "fully exhaust all his administrative remedies in order to seek a resolution from the Employer." (Bd. dec. at 3). Since Employee did not inform Employer that he was dissatisfied with his position Employee had not exhausted the administrative remedies available to him.

This appeal followed. In his opening brief Employee claims that since Lagerence gave him a termination report (dated February 19 1993) Employee believed that he had been fired. He never returned to work thereafter. For the reasons discussed below the decision of the Board is affirmed.

DISCUSSION

8) Delaware's Unemployment Compensation Act 19 Del.C. SEC.(S)SEC.(S) 3301-3384 is "intended to help absorb the shock of lost income between periods of employment and protect out-of-work individuals against financial hardship." Glaros v. Apartment Communities Corp. Del. Super. C.A. No. 92A-05-003 Goldstein J. (July 20 1993 (ORDER) at 3 (citing Boughton v. Division of Unemployment Ins. of the Dep't of Labor Del. Super. 300 A.2d 25 26 (1972)). "Benefits from this act are only available to those involuntarily unemployed without just cause and to those voluntarily unemployed for good cause." Hall v. Doyle Detective Agency Del. Super. C.A. No. 92A-07-008 Cooch (January 31 1994) (ORDER) at 9. See also 19 Del.C. SEC.(S) 3315(1)(2).

  1. A. Standard of Review
9) On appeal from the Board this Court's review is limited to a determination of whether the Board's decision is supported by substantial evidence and whether the Board's decision is free from legal error. Unemployment Ins. Appeal Bd. v. Duncan Del. Supr. 337 A.2d 308 309 (1975); Longobardi v. Unemployment Ins. Appeal Bd. Del. Super. 287 A.2d 690 692 (1971) aff'd 293 A.2d 295 (1972). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it is more than a scintilla but less than a preponderance. Plants Inc. v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 86A-OC-1 Martin J. (Oct. 22 1987) Letter Op. at 3 (citing Shipman v. Division of Social Services Del. Fam. 454 A.2d 767 768 (1982) aff'd Betty J.B. v. Division of Social Services 460 A.2d 528 (1983); Olney v. Cooch Del. Supr. 425 A.2d 610 614 (1981). It is within the exclusive purview of the Board to judge the credibility of witnesses and to resolve conflicts in testimony. Starkey v. Unemployment Ins. Appeal Bd. Del. Super. 340 A.2d 165 166 (1975) aff'd Del. Supr. 364 A.2d 651 (1976); Coleman v. Department of Labor Del. Super. 288 A.2d 285 287 (1972). This Court will consider the record in the light most favorable to the party prevailing below when reviewing the record for substantial evidence. Larkin v. Riverside Hospital Del. Super. C.A. No. 92A-11-012 Goldstein J. (Nov. 18 1993) Op. at 4 (citing Ochs v. Delsteel Inc. Del. Super. C.A. No. 92A-03-10 Herlihy J. (May 24 1993) Mem. Op. at 3-4)).

B. The Board's decision was supported by substantial evidence.

10) The main factual question before the Board was whether Employee quit due to job dissatisfaction (as claimed by Employer) or whether Employee was discharged for refusing to attend a drug rehabilitation program (as claimed by Employee). When the recitation of the facts by the parties is so diverse the credibility of the parties testifying is very much at issue. The Board found Employer's representatives' testimony to be the more credible; this Court cannot disturb that finding. Starkey v. Unemployment Ins. Appeal Bd. 340 A.2d at 166. Based on its weighing of the witnesses' credibility the Board held that Employee did in fact quit. Furthermore Employee admitted telling his supervisors (on his last day) that he was unhappy with his work. As the Board stated this fits in with the employer's version of the facts. (Bd. dec. at 2). This Court agrees. Additionally at the end of the hearing Employee admitted that his supervisors did not actually say that he had to attend drug rehabilitation in order to continue to work there testifying then that it was only "implied." This directly conflicts with Employee's earlier testimony to the Referee. Therefore this Court finds that the Board's decision is supported by substantial evidence in its holding that Employer's version of the facts is the more credible.

11) Additionally as the Board recognized Delaware law requires that an employee exhaust his administrative remedies before seeking unemployment benefits. See O'Neal's Bus Service Inc. v. Employment Security Comm'n 269 A.2d 247 249 (1970) (holding that "an employee does not have good cause to quit merely because there is an undesirable . . . situation connected with his employment. He must do something akin to exhausting his administrative remedies by for example seeking to have the situation corrected by proper notice to his employer"). In this regard Lagerence testified that Employee had not expressed his desire to change jobs to management. (Tr. Bd. Hr'g at 5) and Employee implicitly confirmed Lagerence's testimony when he said that he "assumed" that his supervisor could "read between [his] lines." (Tr. Bd. Hr'g at 14). Such evidence also supports the Board's decision. The Board held that the record did not reveal any action taken by Employer which would amount to Employee's leaving for good cause. This Court agrees.

CONCLUSION

12) The Court concludes that there was substantial evidence to support the Board's finding that Employee quit without "good cause" and is thus disqualified for unemployment benefits in accordance with 19 Del.C. SEC.(S) 3315(2). The Board's findings are also free from legal error. Therefore the Board's decision must stand and is hereby affirmed.

IT IS SO ORDERED.