IN THE SUP ERIOR COURT OF THE STATE OF DE LAWARE

TAMMY R. W

ILLIAMS, :

: C.A. No. K15A-08-00 2 WLW Appellant , : Kent Count y v. : : BRAND YWINE COU

NSEL ING and : UNEMPLOYM ENT INSURA NCE : APPEALS BOARD, : : Appellee. :

Submi tted: Janua

ry 11, 2016 Decided : March 29 , 2016 Re-issue d: April 27 , 2016*
ORDER Upon an A

ppeal fro m the Decision of the Unem ployment Insura

nce Appe als Board

. Reversed

. Tammy R. Williams, pro se Paige J. Schmittinger, Esquire o f the Department of Justice, W ilmington, Delaware; attorney for the U nempl oym ent Insura

nce Appe als Board

.

WITH AM, R. J.

* This Order i s bein g re-is sued d ue to a n error in foo tnot e numb ering.Tammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

1 R-38.
2 R-2. 2 Before the Court is Appellant/Claimant Tam my W illiams’ (“ Williams”) appea l from a decision of the Unemploym ent Insurance Appeals Board (“UIAB” o r “Boar d”) which denied Williams’ ap peal o f a Referee’s decision a s untim ely. Upon consid erati on of the plead ings befo re this Cou rt and the re cord belo w, the UIAB ruling i s REVERSED.

FACTS AND PROCEDURAL BACKGROUND Wil li ams was empl oye d b y Bra nd ywin e Co un sel in g (“B ran dywin e”) as a
coun selor from May 13 , 2013 through April 27 , 2015. 1 Her last day of work w as December

22, 2014. On that da

te, W illiam s informed Brandy wine that she required leave under

the Family

Medical Leave Act (“ FMLA”) to care for her seventy-nineyear -old mothe r. Her

mothe r lived alo ne in New York and had experienced

a health crisis which re quired hospi talizatio n. Wil liams contac ted Brandywine every three weeks to update h er status during her absence. In April, Brandy wine contacted Wil li ams to inquire into her availability to return to work be cause her leave under

the FMLA had expired. Willia ms adv ised Bran dywin e that her mothe r was sti ll ill and that she would not be able to return to work atthat time. Brandywine determ ined that it was nec essary

to fill the position and t ermi

nated W illiam s’ em

ployment. In April 2015 , William s filed a c laim for unem ployment insura

nce benef its. 2 The Claim s Deputy

found that t

he em ployer had not show

n willful or won

to n misconduct

by W illiam s and deter

mined that Wi lliams w as not disqualif ied fromTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

3 R-19.
4 19 Del. C. § 3314(2) applies when an employ ee has been

dischar ged an d states in pertinent part: For

the week in which the individual was discharged from the individual’s work for just cause in connection with the individual’s work and for each wee k thereafter

until the individual has been employed in e ac h of 4 subsequent weeks (whether or not consecutive) and

has earned wages

in covered employ

ment equal to not less than 4 times the w eekly

benefit amount. 5 19 Del. C. § 3314(1) a

pp lies when

an employ

ee has le ft work vo luntarily and state s in pertine nt part: For the wee k in which

the individ

ual left work volunt

arily without g ood caus e attributa ble to such work and for each week ther eafter until the individual has been employed in each of 4 subsequent weeks (whether or not consecutive) and

has earned wage s in covered

employ ment equa

l to not less

than 4 time s the wee

kly benefit amount. 6 R-38-39. 3 receivi ng unemp loyment insura nce benef

its pursuant

to 19 Del. C. § 3314(2). 3 , 4 Brandy wine time ly appe aled the de cision of t he C lai ms Dep uty. After a hearing on the appeal, a Referee determ ined that this was a volu

ntary quit case a

nd should thus be determ ined under 1 9 Del. C. § 3314(1). 5 The Referee reasoned that Williams wa s offered the opportunity to return to work after her FMLA

leave had expired, and that her decision not

to return to work am

ounted to a vo luntary

relinq uishme nt o f her position. 6 Bec aus e Wi ll iams had lefther position for reasons not connected with her emplo ym ent, and had not exhausted all reasonable alternatives prior to resigning her position, the Referee dete rmine d that W illiam s was d isqual ified from re ceiving unempl oym ent

insuranc e benefits

. Based on th is determ ination, the Referee reversed the d ecisi on of

the Cl aims Dep uty. The R eferee ’s decision was mailed to Wil li ams on June 17, 2 015.Tammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

7 R-43. 8 19 Del. C. § 3318(c ) requir es that a n appea l to the Bo ard be f

iled within

ten day s. 9 R-44. 10 Mathis v. Del. River and Bay Auth. , 2012WL 5288757, at *2 (Del. Super. Aug. 22, 2012).
11 Bradfield v. Unemployment Ins. Appeal Bd. , 2012 WL 5462844, at *1 (Del. Super. Mar. 13, 2012) (quot ing Gorrell v. Div. of Vocational Rehab. , 1996 WL 453356, a

t *2 (Del. Super. July 31, 1996)). 4 On July 2, 2015, W illiam s filed an a ppeal of th e Referee’s de cision wit h the Board. 7 The Boa

rd determ ined that th e last day

to appeal the

Referee’s decision was July 27, 2015, and th e app eal w as t her efo re no t ti mely. 8 The Board noted that “this ti me limit is jurisd ictional, although the

Board may, in cases of

severe c ircum stances, exercise its discre tion under § 33 20 to acce pt the appeal sua sponte .” 9 The Board found no evidence o f De partm ent error that would

have prev ented W illiam s from filing a timely

appeal. Based

on this finding, the Bo ard denie d Willia ms’ applicati on for further revi ew. The Boa rd’ s d eci si on was mail ed t o Wi ll iams on August 13, 2015. On August 20, 2015, W illiam s filed a t imely appeal of

the Board ’s deci sion with t he Superi or Court. Her open ing brief r eiterate d her argu

ment r elating t o he r entitlem ent to unem ployment insura

nce benef its, but fa iled to addr

ess the issu e of timeliness. STANDARD OF REVIEW This Court rev iews dec isions by the Board

to de term in e whether they are supported by substantial evidence and free from legal error. 10 “Substantial evidence is ‘such relevant e vidence a s a reason able mind might acce pt as adequate to support

a concl usio n.’” 11 The Court possesses limited review power of the factual findingsTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

12 19 Del. C. § 3323(a).
13 Johnson v. Chrysler Corp. , 213 A.2d 64, 66 (Del. 1965).
14 Hubbard v. Unemployment Ins. Appeal Bd. , 352 A.2d 761 (Del. Super. 1976).
15 29 Del. C. § 10142(d

) states: The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted. The Court’s review, in the absence of actual fra

ud, sh all be limited to a determination of whether the agenc y’s decisionwas supported by substantial evidence on the record before the agency .” 16 Funk v. U

nemploy ment Ins. Appeal Bo ard, 591 A.2d 222, 225 (Del. 1991).
17 19 Del. C. § 3301. 5 of an a dmi ni st rat iv e ag enc y. Sp eci fic all y, “th e fi nd in gs of t he U nemp lo ym ent I nsurance Appeal B oard as to f acts, if supported by

the eviden ce and in a

bsence o f fraud, s hall be con clusive, and the jurisdiction of the Court shall be confined to the questions of law. 12 The Cour t does not w eigh the ev idence, determ ine question s of
cr edi bil ity, or ma

ke its own f

actual fi ndings. 13 Rather, the Court is res tricted t o a considera tionof the recor d. 14 It merely

determines if the evi dence is le gally adequate to support the agenc y’s factual findings. 15 In conside ring an ac tionof the Boa rd, this Court ’s scope of review is l imite d to whether the boar d abused its discretio n. 16 If the record below contains substantial evidence in support of the Board’s findings, then that decis ion will not

be disturbe d.

DISCUSSION The General Assem

bly has determ

ined that th e publi c good requires “t he compulsory se tting asideof an unem ployment reser

ve to be use d for the benefit of persons unemployed throu gh no faul t of their o wn.” 17 “[T ]he Un emplo ym entTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

18 Delaware

Auth. For R eg’l Trans it

(Dart) v. Buehlman , 409 A.2d 1045, 1046 (Del. 1979). 6 Compensation

Act is usua

lly given a liberal construc tion favor ing a claim ant, at least when its basic policy is in i ssue.” 18 Thus, the Court em

ploys a liberal c onstruction in favor of the claimant when determ ining the meaning of

a statute. In the case sub judice , there ar

e three i ssues. The fir st issue con cerns the mer its of the un derly ing
case. The se cond issue c oncerns ti me c omputa tion when de termining the dat e by which a claimant m

ust file an appea l from a Re feree’s decision w ith the Boa rd. The third issue concerns the discretion given the Board to hear acase on the merits under 19 Del. C. § 3320. Turning to the merits of t

he und erlyi

ng case, the Referee’s decision disqualify

ing Willia

ms fr om the receipt of unemploym ent insurance benefits w as in
error. The Referee det ermi ned th at this wa s not a disch arge cas e under se ction 3314(2), but rather

avo lu nt ary q ui t ca se u nd er 3 31 4(1 ). H owe ver , wh eth er Wi ll iams voluntarily

left her emplo ym ent

or was di scharged is of no moment. Se ctions 3314( 1) and 3314(2) con

tain sim ilar langu age allow ing for the r eceipt of unemp loyment insurance benefits w

hen the cla

imant has left e mploy

ment, whether

voluntaril

y or by discharge, to care f

or a spouse, child under

the age of

18, or par

ent with a verified illnes s or disability. Section 3314(1), which pertains to an individual who has voluntarily

left em ployment, states in pertinent pa rt that “ [a]n in dividual, w ho quits work to care fo r that indiv idual’s spouse, ch ild under th e age of 18 , or parent w ith a verified illness or disabi lity , will not be consider

ed to have l eft wor

k voluntaril

yTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

19 19 Del. C. § 3314(1).
20 19 Del. C. § 3314(2).
21 Martin v. Unemployment Ins. Appeal

Bd. , 2004 WL 772073, at *3 (Del. Super. Feb. 25, 2004).
22 Finley v. United States , 490 U.S. 545, 556 (1989). 7 without good cause a

ttributabl e to such wor k.” 19 Section 3314(2) states in pertine nt partthat “ [a]n individ

ual, who is dischar

ged from work bec ause the in dividual is providingcare for that individual’s spouse, child underthe age of 18, or par

ent with

a verifie d illness or

disability , will not

be consider

ed to havebeen dischargedfrom work for good ca use attrib utable to such work.” 20 Thus, as long as W illiam s is caring f or her mother, and her m

other has a verified illness or disability, she i s entitled t o unemployment insuran ce benefits

. Regarding

the second issue

of tim e com

putation, t

he Board h as interpr

eted the ten day tim

e lim it in which

a claim ant mu st file an

appeal w ith the Boa

rd to be te n calendar days. Although not a matter of first impression, the ten-day time limit has not been subj ected to a

statutory interpretation process. With no need to indulge in

an in-depth a

nalysi s, m ost

courts hav e accept ed the Boa rd’s int erpreta

tion. However, in Martin v. Unemplo

yment Insurance Ap

peal Board

, the court d eterm

ined it would be logical to presum

e the time lim it in 3318(c ) was te n calenda r days because t

he term “calendar days” was used in the prec edi ng s ection. 21 I respectful ly disagree. As Justice Antonin Scalia sai d in Finley v. United States , “[ w]hat is of para

mount importance is that Cong ress be ab le to legisl ate again st a backgr ound of clear interpre tive rules, so th at it may know the effect of the lang uage it ado pts.” 22 ThisTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

23 Super. Ct. Civ. R. 6(a) states in pertinent pa rt “[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Satur days, Sunday

s, and o ther legal holiday s shall be excluded in the computation.”

24 19 Del. C. § 3318(b) states in pertinent part (emphasis added): Unless a claimant or a

last employe

r who has submitted a

timely and completed separation

notice in accordance with § 3317 of this title f iles an a ppeal within 10 calendar days after such Claims Deputy ’s determination was mailed to t he last knownaddresses of the claimant and the last employ er, the Claims Deputy’s determination

shall be final and benefits shall be paid or denied in acco rdance therewith.
25 19 Del. C. § 3318(c) states in pertinent part (emphasis added): The parties shall be duly notified of the tribunal's deci sion, toget her with i ts reason therefor [sic], which shall be d eemed to be final unless within 10 days after the date of notification or mailing of such decision further appealis initiated pursuant to § 3320 of this title. 8 statement is eq ually relevant at the stat e level. As a preliminary

matter, the Court n otes that th is is not an atte mpt to s ubstitute Superior Court Civil Rule 6(a) in place of the statuto ry tim

e lim it. 23 This is str

ictly

a matter of statut ory construct ion. A close re ading of 19 Del. C. § 3318 reveals that the time limits within which appeals must be filed a re phrase d differently in subsections (b) and (c). When a party wishes to a

ppeal the d eterm

ination of a Cla ims Depu ty, section 3318 (b) state s that the appeal must be filed within ten cale nda r days after th e Cl aims Deputy has mail ed the determina tion. 24 When a party pursues further appe als, section 3318 (c) stat es that the appeal m ust be initia

ted pursuan

t to sectio n 3320 within ten days of

notificat ion or of the

mail ing of the tr

ibunal’s decision. 25 The word “calendar” is co nspic uously absent from the time limitation in 3318(c). Becausethe term “ calendar” was used in the previous subsection, it must be assumedTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

26 “[W]ords in a

statut e should not be const rued as s urplusag e if ther

e is a re asonable constructionwhich will give them mean ing, and courts m

ust ascr ibe a pur pose to the use of statutory language, if reasonably

possible.” Chase

Alexa, LLC v. Kent

Cnty. Lev y Ct. , 991 A.2d 1148, 1152 (Del. 2010) (quot ing Oceanport Indus

. , Inc. v. Wilmington Stevedores, Inc. , 636 A.2d 8 92, 900 (D el. 1994)).
27 Funk , 591 A.2d at 225. 9 that excepting the word “ calendar ” in this sub section w as intentio nal. If the legislature hadintended the limit ation

to be ten c alendar d ays, the langua ge used in section 3 31 8(b) woul d have been duplicate d in section

3318(c). To inter

pret “ 10 days” in section 3318(c) to mean ten calendar days would render the term “calendar” in section 3318(b) mere surplusage. 26 A libera l interpre tation of th e ten day timelimit would exclude w eekends an dholidays. Thus, the ten day tim e limitation contained in section 3318 (c) m

ust be rea d to exclude

weekendsand holiday s. Unde r this int erpreta tion, Will iams w as re qui red to f ile her a ppe al wi th t he B oar d by J uly 1 , 2015. Unf

ort un ate ly, Wi ll iams did not file her appeal until July 2, 2015. However, this defect does not prevent the Board

from exercising the discretion

granted th em in section 3 320. Section 3320 gran t s the Boar

d wide disc retion over

the appeals process

. 27 However, the Board

uses this pow er judic iously. In an opinio n letter i ssued on June 27, 1989, t

he Board s tated: [I]n a situ ation whe re a party has filed a late appeal f rom an adm inistrativ e decision, the Board is extrem

ely c autious in a ssu min g jurisdic tionover the matter. It does so only in those cases where there has been some adm inis trative error on the part of th e Depar

tment of Labor which dep rived the c laima nt of the opp ortunity

to file a t

imelyTammy R. Wil li ams v. UIAB

C.A. No. K15 A-08- 002 WLW Decided: March 29, 2016

28 Id. 10 appeal, or in those ca ses where the inter ests of j ustice wo uld not be served by inaction. 28 Although there was no adm inistrativ e error on the part of the Department of La bor, the interes ts of justic e com pel the Boa

rd to exer cise its dis cretion in

this case. The Cla ims Deputy

reached the right conclusion b ut failed to state the correct reasoning for the decision. The Refere e’s dec ision was contrary to law and would have been overturned if the Boa

rd had exe rcised its discretio n to hear th e untim ely ap peal. Based on the facts of this case, the Board’s failure to accept the appeal w as an abuse of discretion. This would be the ca se w hether the appeal w as one day

late or f ive days late. CONCLUSION For the foregoing re asons, the decision of the Unemploym ent Insurance Appeal Board is REVERSED and the case is remanded to the Board for further

proceedings on William’s claim for unemplo yment benefits con sistent with this decision

. IT IS SO ORDERED.

/s/ William L. Witham, Jr. Resident J

udge WLW/ dmh