IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

AMY M. SHEENE, ) 

) 

Appellant, ) 

) 

v. ) C.A. No. N23A-02-001 FWW 

) 

UNEMPLOYMENT INSURANCE ) 

APPEAL BOARD, )

)

Appellee. ) 

Submitted: June 9, 2023

Decided: June 21, 2023

Upon Appeal from the Unemployment Insurance Appeal Board, 

AFFIRMED.

ORDER

Amy M. Sheene, pro se, 405 Rosemont Dr., Wilmington, DE 19804, Appellant.

Victoria W. Counihan, Esquire, DEPARTMENT OF JUSTICE, 820 North French 

Street, Wilmington, Delaware 19801, Attorney for Appellee Delaware Division of 

Unemployment Insurance.

Victoria Groff, Esquire, DEPARTMENT OF JUSTICE, 820 North French Street, 

Wilmington, Delaware 19801, Attorney for Appellee Delaware Unemployment 

Insurance Appeal Board.

WHARTON, J.
2

This 21st day of June, 2023, upon consideration of Appellant Amy M. 

Sheene’s (“Sheene”) Opening Brief,1 Appellee Division of Unemployment 

Insurance’s (“Division”) letter in lieu of answering brief,2and the record,3it appears 

to the Court that:

1. On March 15, 2020, Sheene filed a claim for unemployment insurance

benefits after working at Currie Hair Skin & Nails of Justison Landing, LLC 

(“Currie”) from October 17, 2014 to March 15, 2020.4 She listed the reason for her 

separation from employment as COVID-19.5 Currie reported that Sheene was hired 

as a full-time employee on October 14, 2014, but requested to change to part-time 

status on September 12, 2017.6 Currie was closed due to COVID-19 from the week 

ending March 28, 2020 through June 6, 2020, but reopened beginning in the week 

ending on June 27, 2020.7 A Claims Deputy determined that, because Sheene was 

still employed under the same conditions of her hire, she was not considered to be 

an unemployed individual, and, thus, she was ineligible to receive benefits.8

1 Appellant’s. Op. Br., D.I. 7

2 Division’s Ans., D.I. 10. (Pursuant to 19 Del. C. § 3322(b), the Division is a 

statutory party in interest.)

3 Sheene did not file a Reply Brief.

4 R. at 72.

5

Id.

6

Id.

7

Id.

8

Id.
3

2. Sheene appealed the denial of benefits determination and on October 

11, 2021, a hearing was held before an Appeals Referee.9 Both Sheene and her 

employer participated in the hearing by telephone.10 In fact Sheene and Currie 

telephoned into the hearing together since Sheene was still working at Currie.11 No 

facts were disputed, including that Sheene has remained employed with Currie parttime since prior to the COVID-19 emergency, earning a 50% commission of her 

customer’s payments to Currie.12 

3. Citing 19 Del. C. § 3302(17), the Appeals Referee determined that 

Sheene was not an unemployed individual.13 She was not guaranteed any hours or 

number of clients – her hours were based on customer demand.14 Currie did not 

reduce Sheene’s hours or clients.15 Rather, the pandemic and clients reduced the 

demand for Sheene’s services.16 Finally, Sheene remained employed by Currie up 

to and through the date of the hearing.17 

4. Sheene then appealed the Referee’s decision to the Unemployment 

Insurance Appeals Board (“Board”) which in a decision that became final on 

9 R. at 65.

10 R. at 66.

11 Id.

12 Id.

13 Id. 

14 Id.

15 Id.

16 Id. 

17 Id.
4

February 2, 2023 affirmed the Appeals Referee.

18

 The Board agreed that Sheene did 

not meet the definition of “employed” under § 3302(17) because she was a part-time,

commission only worker with no minimum guarantee of hours when hired who still 

remained attached to her employer in that capacity.

19

5. On appeal, Sheene argues that the Board improperly denied her partial 

unemployment benefits.20 She maintains that prior to the COVID-19 emergency she 

was employed by Currie as a hair stylist.

21

 When the Governor declared an 

emergency, Currie was forced to close temporarily. When some businesses were 

allowed to reopen, businesses such as Currie were only permitted to operate at 50% 

of capacity.22 As a result, Sheene was able to serve only half as many customers, 

causing a commensurate diminution in her earning capacity.23 She argues that she 

is entitled to partial unemployment benefits due to the prohibition on her working 

full-time.24

18 Id. at 28-31.

19 Id. at 29-30.

20 Appellant’s Op. Br. at 1, D.I. 11. 

21 Id. at 2.

22 Id. 

23 Id. at 2-3.

24 Id. at 3.
5

6. In response, the Division contends that the Board correctly determined 

that Sheene was a part-time commission-based hair stylist without any guaranteed 

number of hours, and, therefore, not eligible for unemployment benefits.25 

7. Counsel for the Board indicated that the Board did “not intend to file 

an answering brief or to participate in this appeal” because it “understands the Ms. 

Sheene is challenging the Board’s decision on its merits” and it “does not have an 

interest in seeking to have its decision upheld on appeal.”26

8. The Board’s decision must be affirmed so long as it is supported by 

substantial evidence and is free from legal error.27 Substantial evidence is evidence 

that a reasonable mind might accept as adequate to support a conclusion.28 While a 

preponderance of evidence is not necessary, substantial evidence means “more than 

a mere scintilla.”29 Moreover, because the Court does not weigh evidence, determine 

questions of credibility, or make its own factual findings, it must uphold the decision 

of the Board unless the Court finds that the Board “act[ed] arbitrarily or 

25 Division’s Ans. at 2, D.I. 14.

26 D.I. 15.

27 Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309 (Del. 1975).

28 Oceanport Indus. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. Super. 1994) 

(citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).

29 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
6

capriciously” or its decision “exceed[ed] the bounds of reason.”30 Questions of law 

are reviewed de novo.

31

9. After carefully reviewing the record, the Court finds that the Board’s 

denial of partial unemployment benefits is supported by substantial evidence. There 

is no dispute that Sheene was prior to, during, and after the period for which she 

claims partial unemployment benefits, a part-time, commission only worker without 

a guarantee of hours. 

10. Accordingly, the only question for the Court is whether the Board’s 

decision finding Sheene was not an unemployed individual is free of legal error.

“Unemployment” is defined under 19 Del. C. § 3302(1) as follows:

“Unemployment” exists and an individual is 

“unemployed” in any week during which the individual 

performs no services and with respect to which no wages 

are payable to the individual, or in any week of less than 

full-time work if the wages payable to the individual with 

respect to such week are less than the individual’s weekly 

benefit amount plus whatever is the greater of $10 or 50% 

of the individual’s weekly benefit amount. The 

Department shall prescribe regulations applicable to 

unemployed individuals making such distinctions in the 

procedures as to total unemployment, part-total 

unemployment, partial unemployment of individuals 

attached to their regular jobs and other forms of short-time 

work as the Department deems necessary.

30 PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. June 18, 

2008).

31 Ward v. Dep’t of Elections, 2009 WL 2244413, at *1 (Del. Super. July 27, 2009).
7

Under the Department’s regulations, a “partially unemployed individual” is an 

employee who, during any given week, is still employed by his or her employer but 

worked less than his or her regular full-time hours because of the lack of full-time 

work.32 Here, because Sheene had no regular full-time hours, she could not work 

less than her regular full-time hours.33 For that reason, she fails to meet the definition 

of a “partially unemployed individual” and the Board’s determination to that effect 

is free from legal error. 

THEREFORE, the decision of the Unemployment Insurance Appeals Board 

is AFFIRMED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton

Ferris W. Wharton, J.

32 Id. at 29 (citing 19 Del. Admin. C. § 1202-22.1).

33 See, Anderson v. UIAB and Painting With a Twist, 2021 WL 1986570 (Del. Super. 

Ct. May 13, 2021) (affirming the Board where the Board held that an individual who 

accepts part-time employment with no guarantee of hours may not be an unemployed 

individual even if the employee is not scheduled for any hours).