### IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JENNIFER AUGUST
, ) ) Appellant
, )

)

v. ) C.A. No. S21A

- 08

- 003 MHC ) PEOPLE’S PLACE II, INC. ) and ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD, ) ) Appellee s

. )



### OPINION AND ORDER Submitted: December 2, 2021 Decided: February 23 , 2022 Upon Consideration of Appellant’s Appeal from a Decision of the Unemployment Insurance Appeal Board

, 

### AFFIRMED

.
Jennifer August, Rehoboth Beach, Delaware. Pro Se.

Jennifer C. Jauffret, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware. Attorney for People’s Place II, Inc.

Victoria E. Groff, Esquire, Daniel C. Mulveny , Esquire, Delaware Department of Justice, Wilmington, Delaware. Attorneys for Unemployment Insurance Appeal Board

. Victoria W. Counihan, Esquire, Delaware Department of Justice, Wilmington, Delaware. Attorney for Delaware Division of Unemployment Insuran ce.



### CONNER, J.2 

### INTRODUCTION Appellant Jennifer August (“August”) appeals pro se from a decision of the

Unemployment Insurance Appeal Board (the “Board”) that found her ineligible for

unemployment insurance benefits because she was not unemployed as defined by 19

Del. C. § 3302(17)

. The Court has reviewed the parties’ submissions, the record

below and relevant law. For the reasons set forth
, the Court find s that the decision

was free from legal error and supported by substantial evidence. Accordingly, the

Board ’s decision is 

### AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2019, August was hired by People’s Place II, Inc. (“People’s

Place”) as a full

- time domestic violence therapist. 1 In addition to her employment

with People’s Place , August owned and operated The Art Therapy Way. 2 In March

2020, The Art Therapy W ay was temporarily closed as a non

- essential business in

accordance with Governor Carney’s COVID

- 19 response. 3 August remained

employed full

- time with People’s Place. 4

1 Record at 120 [hereinafter “R. at

--- ”]

. 2 Id

. 3 Id

. 4 Id

. at 9

– 10 , 148

.3

On March 29, 2020, August filed for unemployment insurance benefits with

the Delaware Department of Labor Division of Unemployment Insurance (the

“Division”)

. 5 On October 1, 2020, a Claims Deputy determined that August was not

eligible for unemployment insurance benefits because she was not unemployed

under 19 Del. C. § 3302(17). 6

On October 11, 2020, August appealed the determination to an Appeals

Referee. 7 At the June 2, 2021, he aring before the Appeals Referee, a representative

of People’s Place and August both confirmed that August was employed full

- time

and experienced no wage reduction with respect to her job at People’s Place during

the time she requested unemployment insuran ce benefits. 8 August ’s hearing

testimony included the following s tatements :

August: [C] an I stipulate that I was employed full time by People’s Place ?

.

. . A nd I represented that at all times? Can we stipulate that? ; 9

August: B ut I would like to stipulate that I was working full time when I

applied for unemployment ; 10

August: And again, I would like to stipulate I represented and I was

employed full time at People’s Place. It’s on my application. It’s in every email ; 11

August: I did not have a loss of income from People’s Place, right? Not from

that part of my regular job. 12

5 Id. at 120.
6 Id. at 130

. 7 Id. at 161

. 8 See Id. at 9, 120

– 21
9 Id. at 36

. 10 Id. at 43.
11 Id. at 89.
12 Id. at 90.4

August also testified that she had four other cl aims pending within the

Division

. 13 The Appeals Referee determined that the matter on appeal was limited

to the Claims Deputy’s decision to deny the March 29, 2020, unemployment

insurance benefit claim, and therefore
, August’s other claim s were outside the

subject matter of the appeal

. 14

The Appeals Referee affirmed the Claims Deputy’s determination that August

was not entitled to unemployment insurance benefits because she was not

unemployed. 15 The decision stated in part, “[a]lthough [August’s] personal business

suffered lost wages as a result of the pandemic, [August ’s ] full

- time employment

with [People’s Place] remained the same and was unaffected by the pandemic. . . .

As such, she is inelig ible for unemployment insurance benefits.” 16

On June 18, 2021, August appealed to the Board. 17 After reviewing the record,

the Board affirmed the decision. 18 The Board ’s decision stated that “[August] may

have other pending appeals or claims for unemployment benefits, but the Board can

only consider the record before it.” 19 Accordingly, the Board determined that the

only issue to be considered was whether August was unemp loyed. 20 The decision

13 Id. at 37

– 38

. 14 Id. at 121.
15 Id. at 121

– 22.
16 Id. at 121.
17 Id . at 10.
18 Id.
19 Id.
20 Id.5

noted that August was possibly eligible for pandemic unemployment assistance

(“PUA”) but the claim before the Board was not a PUA claim. 21

On August 19, 2021, August appealed to this Court. 22 August filed an opening

brief on October 6 , 2021. 23 On October 26, 2021, People’s Place informed the Court

that it will not be participating in briefing 24 and both the Board and the Division

submitted letters in lieu of answering briefs. 25



### PARTY CONTENTIONS

August advances no less than fourteen arguments for why, in her view, the

Board erred . Her filings have been carefully reviewed and her claims can be

categorized into three groups : 1) that August was denied due process; 2 ) that the

Board ’s decision was incorrect; and 3) several additional arguments

. Her salient

contentions are addressed below.

21 Id. at 10; see generally i d. at 204.
22 Id

. at 8

. 23 See Pl.’s Opening Br.
24 Letter from Jennifer C. Jauffret to Judge Mark H. Conner (Oct. 26, 2021). Pursuant to Super. Ct. Civ. R. 107(f), the Court decides this case on the papers currently before it. See Cavallaro v. Securitas Sec., 2006 WL 2848106, at *1 (Del. Super. Sept. 28, 2006).
25 Letter from Daniel C. Mu lveny to Judge Mark H. Conner (Oct. 26, 2021); Letter from Victoria W. Counihan to Judge Mark H. Conner (Oct. 26, 2021). The Board has no interest in whether the Superior Court sustains its ruling. McIntyre v. Unemployment Ins. Appeal Bd. , 962 A.2d 917 (De l. 2008) (TABLE) (citing Wilmington Trust Co. v. Barron , 470 A.2d 257, 261 (Del.1983)).6 

### STANDARD OF REVIEW

Pursuant to 19 Del. C. § 3323(a), a party to a Board decision may appeal to

the Superior Court. 26 On appeal t his Court reviews such decisions to determine

whether they are supported by substantial evidence and free from legal error. 27

Substantial evidence is “ such relevant evid ence as a reasonable mind might accept

as adequate to support a conclusion.” 28

The Superior Court’s review of a Board decision is limited to the record

below

. 29 T he Court will not “ weigh the evidence, determine questions of credibility,

[ or ] make its own factual findings.” 30 The record is considered in the “light most

favorable” to the party prevailing below. 31 “Absent abuse of discretion,” a Board

decision will be upheld. 32

26 19 Del. C. § 3323(a) reads in relevant part, “[w]ithin 10 days after the decision of the Unemployment Insurance Appeal Board has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the Superior Court . . . .”; see also 29 Del. C. § 10142(a).
27 Unemployment I

ns. Appeal Bd. v. Martin , 431 A.2d 126 5, 1266 (Del. 1981); Flowers

- Nichols

v. Tri

- State Waste Solutions , 2011 WL 2176515, at *3 (Del. Super. May 31, 2011)

. 28 Olney v. Cooch , 425 A.2d 610, 614 (Del. 1981) (citing Consolo v. Federal Maritime Commission , 383 U.S. 607, 620, 86 S.Ct. 1018
, 16 L.Ed.2d 131 (1966)).
29 Super. Ct. Civ. R. 72(g); see also Hubbard v. Unemployment Ins. Appeal Bd.

, 352 A.2d 761, 763 (Del. 1976)

. 30 Johnson v. Chrysler Corp. , 213 A.2d 64, 66 (Del. 1965).
31 Thompson v. Christiana Care Health Sys. , 25 A.3d 778, 782 (Del. 2011); see also Pochvatilla v. U.S. Postal Service, 1997 WL 524062, at *2 (Del. Super. June 9, 1997).
32 Funk v. Unemployment Ins. Appeal Bd. , 591 A.2d 222, 225 (Del. 1991).7 

### DISCUSSION

A. This Court’s Review is L imited to the C ertified R ecord i. Hearing transcript

When a Board decision is appealed to this Court pursuant to § 3323(a), the

Board is statutorily required to “certify and file with the Court all documents and

papers and a transcript of all testimony taken in the matter together . . . .” 33 “ From

time to time, minor omissions do occur

. . . . A transcript or an adequate substitute

for a transcript is required only to the extent that it is essential for the presentation

of a particular issue on appeal.” 34

August takes issue with seventeen separate portions of the Appeals Referee

hearing transcript and has proposed corrections . Even if it is assum ed for the sake of

the argument that August’s proposed corrections to the transcript are correct, the

alleged minor transcription deficiencies were immaterial to the Board’s decision and

are irrelevant to this appeal. Further, there is no reason to believe that portions of the

record were intentionally altered or that the Board relied on evidence outside of the

record. Thus, the decision is revie wed based on the certified record.

33 19 Del. C. § 3323(a).
34 Bass v. State , 720 A.2d 540, 541 (Del. 1984) (citing Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963)).8 ii. Evidence to be considered

August’s filings include several exhibits and alleged facts that are not in the

record. The Court will not hear new evidence in this matter. 35 Additionally, August’s

arguments related to other pending Division claims and the payment of benefits will

not be considered not only because they are outside of the record but because this

Court will not review any matter regarding unemployment insurance benefit claims

prior to the exhaustion of the administrative remedies below. 36

B. August was not Denied Due Process and the Board did not Err Procedurally

“In the [ instant ] context, due process has been described as ‘simply an

opportunity to be heard in one's own defense. The formality and procedural

requisites can vary according to the nature of a case.’” 37 Nineteen Del. C. §

3320(a) provides the Board with significant discretion over the review and appeal

of unemployment claims. 38 The Board is authorized to enact regulations pertaining

35 See Hurtt v. Unemployment Ins. Appeals Bd. , 2019 WL 1558585, at *1 (Del. Super. Apr. 10, 2019); see also Thompson v. UIAB , 2011 WL 1225587 , at *2 (Del. Super. Mar. 25, 2011).
36 19 Del. C. § 3322(a) states in pertinent part, “judicial review . . . shall be permitted only after any party claiming to be aggrieved thereby has exhausted all administrative remedies as provided by this chapter.” See Gullion v. Advance Xing Pain , 2006 WL 1067280, at *1 (Del. Super. Apr. 24, 2006) ; see also Bradfield v. Unemployment Ins. Appeal Bd., 2012 WL 5462844, at *3 (Del. Super. Ct. Mar. 13, 2012), aff'd , 53 A.3d 301 (Del. 2012).
37 Kids & Teens Pediatrics of Dover v. O'Brien , 2020 WL 95849, at *4 (Del. Super. Jan. 8, 2020), aff'd
, 241 A.3d 218 (Del. 2020) (quoting Morris v. S. Metals Processing Co. , 530 A.2d 673, 1987 WL 37999, at *1 (Del. 1987)).
38 See Funk , 591 A.2d at 225; see also Cornell v. Candle Light Bridal , 2015 WL 2395841, at *3 (Del. Super. Apr. 17, 2015)

.9

to hearing procedures. 39 Nineteen Del. Admin. C. § 1201

– 6.3 states in relevant part

that the Board may “ affirm, modify or set aside any decision of an appeal tribunal

on the basis of evidence previou sly submitted, without further hearing . . . .”

Moreover, t his Court has previously held that the Board is not under a duty to

notify claimants of the review date of an appeal. 40

Despite August’s displeasure with the manner in which her claim was

reviewed , the Board ’s procedures were free from legal error , no abuse of discretion

occurred and August was not denied due process. The Board did not err in affirming

the decision of the Appeals Referee without further hearing and it was not required

to notify August of the date that her appeal was reviewed

. T he Board did not err by

limiting its review to the March 29, 2020, claim bec ause the only matter appealed to

the Board was the October 1, 2020, determination by the Claims Deputy regarding

her March 29, 2020, claim. T he Board did not err by including People’s Place in the

proceedings below
, 41 the Board ha d jurisdiction over her when she applied for

unemployment insurance benefits and disputed her claim 42 and the Board did not

induce her to give up her appeal by informing her of PUA policies.

39 19 Del. C. § 3321(a).
40 Molinaro v. Div. of Unemployment Ins. Appeal Bd
., 2005 WL 1952989, at *1 (Del. Super. June 24, 2005).
41 19 Del. C. § 3317(b) necessarily involves employers in the unemployment insurance benefit claim process.
42 See 19 Del. C. § § 3126, 3320

.10

C. The Board’s D ecision was S upported by S ubstantial E vidence and F ree F rom

L egal E rror

To be eligible for unemployment insurance benefits, an individual must be

unemployed. 43 Unemployment is defined by 19 Del. C. § 3302(17)

. 44

Here, the Board applied § 3302(17) to determine whether August was

unemployed and in turn potentially eligible for unemployment insurance benefits.

Notwithstanding August’s frequent invocation of federal pandemic assistance law,

this was not a PUA claim and the Board applied the correct legal standard. While

August may believe th e facts support a finding that she was unemployed, this C ourt

will not reweigh the evidence

. 45 Substantial evidence supported the determination

that August was not unemployed within the meaning of § 3302(17) and there was

no evidentiary error. 46 As previously stated, People’s Place and August both

43 19 Del. C. § 3315; see also Corbin v. Am. Flag Inc.
, 2007 WL 3105856, at *2 (Del. Super. Oct. 15, 2007).
44 19 Del. C. § 3302(17) reads: 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 whichever is the greater of $10 or 50% of the individual's weekly benefit amou nt. 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 f orms of short

- time work as the Department deems necessary.
45 Supra note 2 6

. 46 See Geegan v

. Unemployment Compensation Comm'n

, Del. Supr
., 76 A

. 2d 116
, 117 ( 1950 ) ;

see also Phillips v. P & N Distribution , 1998 WL 437148, at *5 (Del. Super. June 23, 1998);11

confirmed on the record that August was employed full

- time and experienced no

wage reduction with respect to her job at P eople’s Place during the time she

requested unemployment insurance benefits. In consideration of this evidence, it was

reasonable for the Board to determine that August was not unemployed.



### CONCLUSION

T he Court finds that Board ’s decision was free from legal error and supported

by substantial evidence. Accordingly
, the Decision of the Unemployment Insurance

Appeal Board is 

### AFFIRMED.

IT IS SO ORDERED.

_ /s/ Mark H. Conner

___________ Mark H. Conner, Judge

c c: Prothonotary