IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TRACY DEROCK ) ) Appellant, ) )

v. ) C.A. No. N22A

- 05

- 008 CEB ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD, ) ) Appellee. )

Submitted: March 3, 2023 Decided: May 18, 2023

MEMORANDUM OPINION
Upon Appeal from the Unemployment Insurance Appeal Board,

AFFIRMED.

Tracy DeRock, pro se . Appellant.
Daniel C. Mulveny, Esquire, D eputy A ttorney G eneral , Wilmington, Delaware. Attorney for Appellee Delaware Unemployment Insurance Appeal Board.

Victoria W. Counihan, Esquire, Deputy Attorney General , Wilmington, Delaware. Attorney for Appellee Delaware Division of Unemployment Insurance.

BUTLER, R.J.2

This is an appeal from a decision of the U nemployment Insurance Appeal
Board (“Board”) denying Appellant Tracy DeRock’s (“DeRock ” ) petition for
eligibility. After considering DeRock’s Opening Brief, 1 the Board’s letter in lieu of
answering brief, 2 the Delaware Division of Unemployment Insurance’s (“Division”)
letter in lieu of answering brief , 3 DeRock’s Reply Brief, 4 and the record, the Court

concludes the Board’s decision must be AFFIRMED.

BACKGROUND

I. The Determination

DeRock was employed by Dollar Tree Stores Inc. as an assistant store

manager. 5 She stopped working for Dollar Tree in December 2019 for medical

reasons and was out on short term disability

. 6 After the short term disability ran out,

DeRock requested “ two or t hree more weeks ” without pay until the end of March

2020. 7 Then came the onset of the COVID

- 19 Pandemic

. DeRock’s primary care

doctor stated that given the preexisting medical condition for which she originally
stopped working, he felt it was now too dangerous for her to work until she was

1 Appellant’s Opening Br., D.I. 12. [hereinafter “Appellant’s Opening Br.”]. 2 Board’s Ans., D.I. 14. 3 Division’s Ans., D.I. 15. Pursuant to 19 Del. C. § 3322(b), the Division is a statutory party in interest. 4 Appellant’s Reply Br., D.I. 16 [hereinafter “Appellant’s Reply Br.”]. 5 Notice of Board Decision, R. 26. 6 Id. 7 See Board Hr’g Tr., R. 37 at 6:6

– 12.3

vaccinated. 8 DeRock asked Dollar Tree for a job where she would not interact with

customers. 9 Dollar Tree told her that was not possible

. 10 So on April 5, 2020,
DeRock filed for unemployment insurance benef its. 11

DeRock received benefits until December 23, 2021 , when she was mailed a

Notice of Determination. 12 The Determination held DeRock was ineligible for
unemployment benefits, effective with or for the week ending April 11, 2020

— the
week she began rece iving benefits

— because she was not “ able to work and

. . . available for work ” as required by 19 Del. C. § 3315(3). 13 Overpayment was to be

established based on this decision. 14

I I

. The Referee’s Decision
On January 4, 2022, DeRock appealed the Determination to the Division. 15
The Division held a telephonic hearing on February 8, 2022, at which an Appeals
Referee (“Referee”) considered the appeal de novo

. 16 During the hearing, DeRock

testified that she was on short term disability due to kidney trouble and then was told
by her doctor that, because of COVID, it was too dangerous for her to return to work

8 Notice of Board Decision, R. 26. 9 Id. 10 Id. 11 Id. 12 Id. at R. 100. 13 Notice of Board Decision, R. 100. 14 Id. 15 Notice of Referee’s Appeal, R

. 96. 16 See Referee ’s Hr’g Tr., R. 57

– 93.4

until she was vaccinated , which prompted her to apply for unemployment benefits

. 17

DeRock said she received her first COVID vacci ne in August or September 2021,

and her second vaccine four to six weeks later. 18 She then spoke to her doctor, who

advised her that the C OVID virus was ramping up again. 19

DeRock explained that she then asked Dollar Tree for a position where she

could sit down most of the time

. 20 Dollar Tree told her that was not possible, but
encouraged her to reach out when she was able to come back to work without

restrictions. 21 DeRock testified that she was looking for work, but only at

- home
positions where she could sit down in anticipatio n of having knee surgery. 22
Following the hearing, the Referee upheld the Determination finding DeRock
ineligible for unemployment benefits. 23 The Referee determined that DeRock was not able and available to work because she had not been released by her doctor to

return to work without restrictions. 24 DeRock, therefore, did not meet the “able and

available to work” eligibility requirement under 19 Del. C. § 3315(3).

17 Id. at R. 67 at 11:14

– 24, R. 70 at 14:13

– 20. A doctor’s note was provided stating the same. See Claimant’s Ex. 1, R. 56. 18 Referee ’s Hr’g Tr., R. 74 at 18:10

– 24. 19 Id. at R. 75 at 19:11

– 19. 20 Id. at R. 75

– 7 6 at 19:19

– 20:4

. 21 Id. at R. 80 at 24:8

– 16. 22 Id. at R. 77

– 78 at 22:21

– 23:7. 23 Notice of Referee’s Decision, R. 52

– 54. 24 Id. at R. 53.5

III. The B oard’s Decision
On February 21, 2022, DeRock appealed the Referee’s decision to the

Board. 25 The Board held a review hearing on March 30, 2022. 26 During the hearing,
DeRock stated that during C OVID , unemployment offices were backlogged so trying to communicate was very difficult. 27 She noted that she did not start receiv ing
benefits until after contacting the Office of the Governor and her local representative
for help

. 28 DeRock further clarified that she had requested light duty from Do llar

Tree and her doctor had not approved her for work with the public until November

2021. 29
On April 22, 2022, the Board affirmed the Referee’s decision. 30 The Board

concluded that because DeRock was unable to work for health reasons , she was not

able and available to work and therefore ineligible for unemployment benefits. 31
DeRock timely appealed the Board’s decision to this Court. 32

25 Notice of Board Appeal, R. 48. 26 See Board Hr’g Tr., R. 32

– 44. 27 Id. at R. 37

– 38 at 6:22

– 7:17. 28 Id. 29 Id. at R. 38

– 39 at 7:20

– 8:12. 30 See Notice of Board Decision, R. 26

– 28. 31 Id. at R. 27

– 28. 32 See DeRock’s Notice of Appeal, R. 3.6 STANDARD OF REVIEW
The Superior Court plays a limited role when reviewing a decision on appeal
from the Board. Factual findings, “if supported by evidence . . . shall be conclusive
and the Court shall be confined to questions of law.” 33 The Court is limited to an
evaluation of the record “to determine only and whether or not there was subst antial
evidence to support the findings of the Board.” 34 Substantial evidence “means such
relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” 35

Conclusions of law are reviewed de novo

. 36 The Court will review the B oard’s
discretionary rulings for abuse of discretion. 37 Only if the Board “acts arbitrarily or
capriciously, or exceeds the bounds of reason in view of the circumstances and has
ignored recognized rules of law or practice so as to produce injustice” will the Court
overturn the ruling. 38

ANALYSIS
DeRock asserts the following grounds as the bases for her appeal: (1) the
Division previously deemed her eligible for benefits; (2) the Division is illegally

33 19 Del. C. § 3323(a). 34 Gen. Motors Corp. v. Freeman , 164 A.2d 686, 689 (Del. 1960). 35 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc. , 636 A.2d 892, 899 (Del. 1994) (citing Olney v. Cooch , 425 A.2d 610, 614 (Del. 1981)). 36 LeVan v. Indep. Mall, Inc. , 940 A.2d 92 9, 932 (Del. 2007). 37 Funk v. Unemployment Ins. Appeal Bd. , 591 A.2d 222, 225 (Del. 1991). 38 Oceanport Indus. , 636 A.2d at 899 (citing Olney , 425 A.2d at 614).7

charging her for overpayment of benefits; (3) the deter mination of her ineligibility
comes as retribution for contacting the Office of the Governor; and (4) the appeal
process has been based on inaccurate information. 39
There is no evidence in the Record of retaliation against DeRock for
contacting elected officials. Given that this claim is unsubstantiated, the Court will
only address grounds (1), (2), and (4).

I. The Court will not consider facts raised for the first time on appeal.
DeRock argues the Board’s decision “was no t supported by substantial
evidence, nor based on a correct and complete understanding of the facts.” 40 She
claims the Division did not provide the Board with a correct and complete record of

the f acts , and implores the Court to consider various emails and a news article not

included in the record before the Board

. 41 But the Superior Court is limited to a
consideration of the record which was before the administrative agency. 42 “Thus a
claimant, appealing the decision of the Board, may not supplement the record with
facts not previously raised.” 43 T he Court cannot now consider new emails or articles

that were not before the Board in reviewing the Board’s decision.

39 Id. 40 Appellant’s Opening Br

. at 6. 41 Appellant’s Reply Br

. at 1

– 2. 42 Hubbard v. Unemployment Ins. Appeal Bd. , 352 A.2d 761, 763 (Del. 1976). 43 Bossert v. Div. of Unemployment Ins. , 2022 WL 17249305, at *3 (Del. Super. Nov. 22, 2022) (citing Torres v. MOT Charter Sch. , 2022 WL 1584508, at *2 (Del. Super. May 19, 2022)).8

II. The Boa rd did not abuse its discretion in finding DeRock ineligible for unemployment benefits and demanding repayment

.
1. DeRock’s appeal is based on a misunderstanding of the “able and available” requirement.

A claimant for unemployment benefits must be able, available, and actively
seeking work. 44 DeRock argues that she was ready and available to work but could
not through no fault of her own. 45 Had Dollar Tree made accommodations for her
to work away from th e public and thereby not risk exposure to COVID, DeRock
argues she would have remained employed. 46

But DeRoc k misreads the “able and available” to work requirement. A

claimant is not “able and available” if s he is cleared to work with restrictions an

em ployer cannot accommodate. 47 U nemployment insurance is not health insurance
or disability insurance , and its benefits are not available to those unable or

unavailable to work due to medical conditions

. 48 Dollar Tree was unable to
accommodate DeRock’s need to work away from the public and she was not cleared

44 19 Del. C. § 3315(3). 45 Appellant’s Opening Br. at 8. 46 Id

. 47 Garrett v. Unemployment Ins. Appeal Bd. , 2017 WL 2705382, at *2 (Del. Super. June 22, 2017). 48 Id.9

to work with the public until November 2021. 49 So D eRock was not “able and

available” within the meaning of 19 Del. C. § 3315(3).
There is, or was, a separate pandemic

- related employee benefit for claimants
unable or unavailable to work for a list of specific pandemic

- related reasons called
Pandemic Unempl oyment Assistance (“PUA”). 50 The Board previously advised

DeRock that she may or may not be eligible for PUA benefits when it deemed her
ineligible for unemployment benefits. 51 That is not to say DeRock is guaranteed

PUA benefits , as PUA has its own eligibility requirements to be determined at the
time of filing. 52

2. The Board is entitled to repayment.

DeRock argue s that, even if she is ineligible for unemployment benefits, the
Division “is [illegally] seeking to recoup the benefits for an error for which the
Division is solely responsible.” 53 But u nder 19 Del. C. § 3325 (a) , if it is finally
determined that an individual received benefits for which they were not entitled, the

49 Whether Dollar Tree had a duty to make “reasonable accommodations ” given DeRock’s medical condition is not an issue in this appeal and the Court , therefore , does no t consider it. See generally 42 U.S.C. § 12112; 19 Del. C. § 723

. 50 See Pandemic Unemployment Assistance , Delaware Department of Labor, https://labor.delaware.gov/divisions/unemployment

- insurance/unemployment

- benefits

- faqs/pua

- rights (last visited May 1 2 , 2023). 51 See Notice of Board Decision, R. 28 at n.5. 52 For more information on PUA benefits see Pandemic Unemployment Assistance , Delaware Department of Labor, https://labor.delaware.gov/divisions/unemployment

- insurance/unemployment

- benefits

- faqs/pua

- rights (last visited May 12, 2023). 53 Appellant’s Opening Br. at 8.10

individual shall repay that amount. 54 “ The individual is liable regardless of whether
the overpayment was received through fraud or mistake , or whethe r the individual
was legally awarded the payment of benefits at the time but on appeal was
subsequently found not to be entitled thereto. ” 55 T he Division is entitled to
recoupment even if the recipient was unaware that payments might later be

determined t o have been made in error.

CONCLUSION
The Court finds there is substantial evidence to support the Board’s finding

that DeRock was ineligible to receive unemployment benefits, effective the week
ending April 11, 2020. Although DeRock argues otherwise, the Board’s decision is

well

- supported by the Delaware Code and the Record. For the foregoing reasons,

the decision of the Board is hereby AFFIRMED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge

54 19 Del. C. § 3325(a). 55 Id. (emphasis added).