IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ELLA J. DOYLE, : : Appellant , : K17A

- 10

- 003 JJC

: In and f

or Kent County
v. :

: MATTHEW SMITH, LLC and : UNEMPLOYMENT INSURANCE : APPEAL BOARD, : : Appellees

. :

MEMORANDUM OPINION & ORDER
Submitted: June 6, 2018 Decided: July 9 , 2018

Ella J. Doyle, pro se Daniel C. Mulveny, Esquire, Department of Justice, Wilmington, Delaware, Attorney for Unemployment Insurance Appeal Board

. Victoria W. Counihan, Esquire, Department of Justice, Wilmington, Delaware , Attorney for The Delaware Division of Unemployment Ins urance
.

Clark, J.2

Appellant Ella J. Doyle (hereinafter “Ms. Doy le ”) appeals an adverse decision by th e Unemployment Insurance Appeal Board (hereinafter “the Board” or “the UIAB”) terminating her unemployment benefits

. She challenges t he Board’s
decision that she was ineligible for unemployment benefits between July 29, 2 017 and August 24, 2017 because she did not participate in a “work search audit.” Under
the circumstances of this case, the Board committe d legal error when it denied her appeal.
The record evidences a combination of procedural and substantive errors that require reversal. Namely, the Division of Unemployment Insurance (hereinafter the “Division”) denied Ms. Doyle’s benefits because she d id not a ppear at two scheduled
work search audits , despite the fact that she was not require d to appear based on her

status. Furthermore, n either the claims d eputy’s initial determination n or the
Division ’s appeals referee hearing notice cited accurate re asons for terminating her
benefits. Finally , t he notices did not quote or cite the particular regulations Ms

. Doyle allegedly violated, and the two notices address ed different substantive issues.
Giv en these circumstances, the Board committed legal error in accepting the appeals
referee’s decision where the referee refused to consider the unrebutted fact that Ms. Doyle was not required to perform the audit s at issue. For these reasons and those set forth below, the Board’s decisio n is REVERSED and the matter is
REMANDED for action consistent with this decision

.3

I. PROCEDURAL BACKGROUND AND FACTS OF RECORD On June 25, 2017 , Ms. Doyle applied for unemployment benefits during the

summer break because, as a school bus driver , she was temporarily laid off. She
drove for Matthew Smith, LLC and filed her unemployment benefit s application

on line. S he did not include a return to work date in her filing

. She then called to confirm that her application was complete and testified that she was told that it was. 1 The claims deputy testifying at her appeals referee hearing confirmed t hat she would

n ot have been told i f it was incomplete unless she asked the correct questions

. Rather, the claims deputy testified that the customer service representative on the phone would have merely told her that it was considered submitted. 2 On July 17, 2017 , the Division of Unemployment Insurance (hereinafter the “Division”) sent Ms. Doyle a letter inst ructing her to report on July 26, 2017 for an
audit of her work search l ogs
. She did not appear for the audit. On the scheduled day, the Division sent her another letter rescheduling the appointment for August 2,
2017. She also faile d to appear on that date . On August 4, 2017, a Division claim s
d eputy sent a letter declaring Ms. Doyle ineligible for continued benefits after July

1 Record at 16. 2 Record at 19

- 20.4

29, 2017 . The noticed cited subsection 3315(1) of Title 19 of the Delaware Code as
the basis for the denial

. On August 10, 2017 , Appellant appea led the denial

. On August 16, 2017, she
filed a letter from her employer with the Division that provided her return to work
date of August 24, 2017. 3 Thereafter, o n August 18, 2017, the Division sent her a notice for an appeals re feree hearing to be held on September 6 , 2017. That notice of hearing provi ded a “Statement of Issues ” that referenced the subject of the upcoming hearing. Namely, the notice stated incorrectly that her b enefits were subject to termination after a hearing because “[t] he claimant is not an unemployed individual and is ineligible for benefits.” 4 At the hearing, the transcribed testimony
demonstrated Ms. Doyle’s confusion

. 5 Likewise, because of the error in the notice , the appeals referee did not initially understand the issue s to be covered in the hearing. 6 During a preliminary discussion before the hearing, t he claims deputy that
issued the denial stated that the scope of the hearing should have been identified as a “Section 3315(1)” issue

. 7 The appeals referee then corrected the notice at the

3 Appellant’s Opening Br., Ex. 1. 4 Record at 9. 5 Appellant inquired about the “reason you said we were here today, I

– I didn’t understand that good.” She then stated she thought it was a challenge to whether she was unemployed , which was the reason stated in the no tice . Record at 13

- 14. 6 Record at 15. 7 Id.5

hearing by crossing out the listed purpose and wrote on it , the following: “3315(1) Comply w/ Work Search Audit.” 8 The appeals referee then stated “[s]o the only issue we’re going to be discussing today is whether or not you complied with the Work Search Audit Program.” 9
The relevant undisputed evidence at the heari ng can be summarized in several
relevant parts. First, in submitting an online claim, Ms. Doyle did not include a

return to wo rk date in the appropriate field

. Second, from the outset, Ms. Doyle understood she was not required to perform audits since s he was a school bus driver
who was to be unemployed for only a short period of time. Third, the Division ’s claims deputy confirmed that bus driver s with her status were not required by Division policy to participate in the a udits. Fourth, because Ms. Doyle di d not
include a return to work date in her online application, the Division sent two separate notices for her to appear for an audit. S he did not appear for either, claiming her post office box was closed. Finally , three weeks prior to her appeals referee hearing, Ms. Doyle provided a letter from her employer confirming that her return to work date was August 24, 2017. 10 T he Division received that letter on August 16, 2017
and date and time stamped it. 11

8 Record at 9 and 15. 9 Record at 15. 10 Appellant’s Opening Br. 11 Id.6

On September 6, 2017 , the appeals referee found Ms. Doyle ineligible for unemploym ent benefits effe ctive July 29, 2017 for failing to comply with Division

r egulations. The stated reason for denying her benefits was that she did not attend

“ an REA workshop ” as required by 19 Del C. § 3315(1). 12 Despite the statutory
reference to her viol ating 19 Del. C. § 3315(1), neither the appeals referee , n or the claims deputy bef

ore her , referenced any r egulation Ms. Doyle allegedly violated. Furthermore, despite amending the hearing notice on the day of the hearing to cite work audit requirements, the appeals referee refused to consider Ms. Doyle’s
defense relevant to that very issue. Namely, Ms. Doyle argued strenuously that given her temporary lay

- off status, she was not required to participate in a work
search audit. D espite the fact that three weeks prior to that de novo hearing she had
submitted evidence of her return to work date , the appeals referee terminated her
benefits effective July 29, 2017. Ms. Doyle then appealed the appeals referee’s findings to the UIAB. The
UIAB elected not to receive further evidence and relied solely on the appeals referee hearing record

. 13 It then affirmed the referee’s decision based on the record below without a further hearing. In its decision, it declined to permit additional evidence
to address the incorrect notice issue, or to address the substantive issue below

12 Record at 33. 13 See 19 Del. C. § 3320 (a) (giving the Board the discretion to decide a matter on the appeals referee’s record without receiving additional evidence).7

ignored by the appeals referee. In its final order, the Board also did not cite any regulatio n requiring a claimant to appear at a Division office upon request. The
Board merely wrote in its decision that “[a] claimant must follow the regulations that the Department proscribes.” 14

II. STANDARD OF REVIEW
The UIAB is not an agency subject to the case decision requirements of
Dela ware’s Administrative Procedure s Act. 15 Nevertheless, t he UIA B’s enabling statute provides claimant appeals rights and the Superior Court’s standard of review
for such appeal s
. Pursuant to 19 Del. C. § 3323(a), the Superior Court's jurisdiction is limited to a review for errors of law, together with a limited factual review. Namely, the review is “limited to the question of whether there is substantial evidence in the record to support the Board's fin dings and whether such findings are free from legal error. In such an appeal, this Court “ does not weigh the evidence, determine questions of credibility, or make its own factual findings.” 16 Due process requires that a claimant receive s adequate notice an d an opportunity to be heard. 17 Proper notice includes informing “the affected individual

14 Record at 41. 15 See 29 Del. C. § 10161(a) , (b) (itemizing the state agencies that are subject to the Administrative Procedures Act’s case decision requirements). 16 Murphy & Landon, PA v. Pernic , 121 A.3d 1215, 1222 (Del. 2015). 17 Vincent v. Eastern Shore Markets , 970 A.2d 160, 163

- 164 (Del. 2009).8

of, and permit ting adequate prepara tion for, an impending hearing. 18 Proper notice

must also reasonably apprise a party of the issu es involved, and provide that party a
reasonabl e time to prepare a defense.

III. Analysis Here, the Board c ommitted legal error by terminating Ms. Doyle’s benefits after an appeal referee proceeded wit h an improperly noticed hearing and refused to
consider evi dence that Ms. Doyle was not required to participate in a work search audit pursuant to Department of Labor regulations. With r egard to the improper notice, the Division identified the scope of the upcoming hearing as covering
whether she was an “unemployed individual.” 19 The noti ce’s stated purpose for the hearing was incorrec t. Namely, at no time in the entire process did the Division , the

appea ls referee, or the Board raise or consider a question regarding her status as an unemployed individual except in that mistaken notice

. Due process requires in addition to an opportunity to be heard, adequate notice of the scope of any hearing. 20 The Division’s violation of this requirement cannot

18 Bell Atlantic

– Delaware, In c. v. Public Service Comm’n , 705 A.2d 601, 605 (Del. Super. 1997). 19 See Record at 9. 20 Furthermore, Delaware’s Unemployment Insurance Claimant Handbook provides with regard to an appeals referee hearing, that “ an appeal hearing is scheduled within a few weeks after an appeal is filed. All parties are mailed a Notice of Hearing that provides the time, date, location , and issue(s) to be c overed in the hearing .” Claimant Handbook at 20 , available at https://ui.delawareworks.com/documents/UI%20Claimant%20Handbook.pdf (emphasis added).9

be found to be harmless given the evidence of record

. First, no regulatio n was cited by the claims deputy in her initial determination. Second, the exchange on the record at the later hearing established that Ms. Doyle and the appeals referee were confused about the scope of the hearing. After the claim deputy clarified her i ntent that the
issues should have been identified as “3315(1) ,” the appeals referee hand wrote the changed scope of the hearing on the notice

. Such a practice does not provide sufficient notice to provide a claimant due process. After the hearing, the appeals referee found that Ms. Doyle failed to attend
two work search audits. Even independent of the improper notice, the only law cited by the appeals referee justifying the denial of benefits was s ubsection (1) of S ection
3315 of Title 19 of the Delaware Code (hereinafter “subsection 3315(1)”)

. The appeals referee cited no regulation justifying her decision. Subsection 3315(1) refers

to regulations and most importantly refer s to regulations that permit the Division to waive that subsection’s requirements. T he sta tutory subsection at issue provides: that the individual: (1) [h]as registered for work at and thereafter continued to report at an employment office in accordance with such regulations as the Department prescribes, except that the Department may, by regul ation, waive or alter either or both of the requirements of this paragraph as to individuals attached to regular jobs . . .. 21

21 19 Del. C

. § 3315(1) (emphasis added)

.10

Throughout the process, the Division, the appeals referee, and the Board failed to cite any regulation addressing work search req uirements, mandatory appearances at an office, or return to work date submission requirements. 22 Ms. Doyle’s confusion at the hearing was understandable since she correctly understood that someone in her status need not participate in the audit. N amely,
she testifie d that she understood that because she was short

- term unemployed, she was not required to participate in a work search

. 23 The Court’s review of the evidence is extremely limited, but it cannot ignore whe n all evidence of record in an
administra tive proceeding e stablishes a given fact. Here , in addition to Ms. Doyle ’s testimony, the record includes the following testimony from the Division’s only witness, the claims deputy : typically bus drivers when they come in and apply or apply online, they automatically report a recall date for the new school year that prevents them from having to do the work search . . . If she had responded to the initial letter, called us, or come in and stated, I’m a bus driver. Do I have to attend this program? We woul d hav e advised her, no, she did not. 24 The claims deputy, the appeals referee’s, and the Board’s generic references to regulations prompted the Court to review the Department of Labor’s published regulations relevant to Ms. Doyle’s status that could be fairly considered to be those

22 See Rec ord at 6, 32, 33, 40, 41 (where all three entities in the unemployment claims process in this case identified no regulations in their decisions despite generically referencing a violation of regulations). 23 Record at 21

- 22. 24 Record at 15

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referenced in s ubsection 3315(1)

. Although not referenced at any stage of the

process below, Departm ent of Labor regulations provide for a consistent outcome
with the unrebutted testimony at the hearing. First , they provide : the following unemployed individuals will not be required to register for work with . . . [t]he Division to be eligible for the receipt of benefits: . . . [a]ny individual on a temporary layoff who has a definite “return to work” date which has been verified by [t]he Division . . . with the individuals separating employer. 25 Second, Department of Labor regulations provide elsewhere that : [a claimant] will not be ineligible for such week if the Division of Unemployment In surance finds that: the claimant is attached to a job for which the date of return to employment is known and reasonably certain and is sufficiently near in time to make it futile to actively seek work . . . 26 Ms. Doyle’ s attempted to raise this issue b efore the appeals referee in her only
de novo hearing . The appeals referee declined to consider it , which under the
circumstances of this case , was fundamentally unfair. As noted above, regulations
i ncorporated by reference in sub section 3315(1) only serve to qualify the obligations
created in that subsection. B ecause the record was devoid of any referenced regulations requiring submission to audits, coupled with all evidence establishing that work search requirements were inapplicable to Ms. Doyle , the Board committed legal error in denying her benefits

.

25 19 Del. Admin

. C. § §

- 20.2, 20.2.1 26 19 Del. Admin. C. §§

- 6.3 , 6.3.112

The Court recognizes that the Division must have the ability to impose consequences for non

- complia nce with its procedural requirements. The orderly administration of benefits requires nothing less. This decision in no way should be read to imply that the Division cannot impose consequences upon individuals who do not comply with procedural requirements. Due process requi res, however, tha t in circumstances where the cited reasons for termination of benefits have changed
from st ep to step in the process, at a minimum, the sole de novo evidentiary hearing provided to a claimant by Act of the General Assembly must consider substantive
defense s to a claimed procedural non

- compliance. If procedure is to trump subst ance, which at times is admittedly appropriate
in a claims process to aid in the efficient administration of benefits , at a minimum, the agency must accurately cite a procedural rul e that was violated before denying
benefits

. Here, it did not.
A pproximately three weeks before the appeals referee hearing, Ms. Doyle presented a return to work date as evidenced by a clocked

- in copy of a letter from her employer. 27 The regulations cited above provide that the Division should have
verified that date with her employer. 28 As a consequence, the Board’s decision is
REVERSED and REMANDED for the reinstatement of Ms. Doyle’s ben efits for the

27 See Murphy & Landon, P.A., 121 A.3d at 1222 (finding legal error by the Board when it failed to redress an appeals referee’s decision to inappropriately restrict the issues before her). 28 19 Del. Admin. C. §§

- 20.2, 20.2.113

weeks in question provided th e employer verifies, after the Division requests verification, that her return to work date was as alleged in the letter she filed with
the Di vision

. IV. Conclusion For the aforementioned reasons, the Board’ s decision denying benefits is
reversed and remanded for action consistent with this order

. Specifically, t he matter
is remanded so the Division can verify, as required by its regulations, that Ms. Doyle
in fa ct returned to work

. In that event, benefits are due Ms. Doyle from July 29, 2018, through her verified return to work date. If Ms. Doyle did not return to work as alleged in the employer’s letter she filed with the Division , then the Board shall conduct proceedings as are otherwise consistent with this order and its process es
. IT IS SO ORDERED /s/Jeffrey J Clark Judge