SUPERIOR COURT

OF THE

STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
1 THE CIRCLE, SUITE 2
GEORGETOWN, DELAWARE 19947
TELEPHONE (302) 856-5264

JUDGE

May 4, 2020

Chandroutie Jogee

18326 Phillips Hill Road

Laurel, DE 19956

Monica L. Townsend, Esquire
Department of Justice, Civil Division
820 N. French Street

Wilmington, DE 19801

RE: Chandroutie Jogee v. Perdue Foods, LLC and Unemployment Insurance
Appeal Board, C.A. No. S19A-12-001 RFS

DATE SUBMITTED: April 28, 2020
Dear Ms. Jogee and Ms. Townsend:

Pending before the Court is an appeal which Chandroutie Jogee (“appellant”) has filed
from a decision of the Unemployment Insurance Appeal Board (“Board”) refusing to consider
her appeal trom an Appeals Referee’s decision because she did not timely file the appeal. This is
my decision affirming the Board’s decision.

Facts and Procedural Posture
The record shows the following. Appellant was a long-time employee of Perdue Foods,

LLC (“employer”). On August 20, 2019, appellant was a line leader. One of the employees she
was supervising cut his finger and was bleeding. He had Hepatitis B. He reported his cut. Some
product was contaminated. Appellant, through training and written policies, was well-aware of
the correct procedure to follow in this situation: condemn the product and bleach the floor.
Employer later located the product in a freezer; had employer not located it, the contaminated
product would have entered the stream of commerce. Appellant admitted she did not bleach the
floor.

Because appellant’s actions were so wanton and egregious, employer fired her.

Appellant appealed to a Claims Deputy, who found in her favor. Employer appealed.
Appellant did not appear at the hearing before the Appeals Referee and only employer presented
evidence and testimony. The Appeals Referee found appellants actions “constituted willful or
wanton behavior and a reckless disregard for employer’s reasonable safety and ethics policies”!
and concluded she was discharged from employment with just cause.

The Appeals Referee mailed a copy of his decision to the parties on October 15, 2019.
The address used was the same as appellant has used in her appeal to this Court. The front page
of the decision showed that the last day to file an appeal was October 25, 2019.

On November 6, 2019, appellant submitted an appeal to the Board. Her reason for the
appeal was: “I disagree with the ref decision. I wish to file an appeal.’”” The appeal was filed
beyond the appeal period.*

The Board considered the matter on December 4, 2019, and issued its decision on

 

'Board’s Record filed on February 5, 2020, at 36 (hereinafter, “Record at __”).
*Id. at 51.

319 Del. C. § 3318(c).
December 13, 2019. The Board’s decision provides in pertinent part as follows:*

Pursuant to 19 Del. C. § 3318(c), the Referee’s Decision “shall be deemed to be
final unless within 10 days after the date of notification or mailing of such
decision further appeal [to the Board] is initiated pursuant to § 3320 of this title.”
This statutory time limit is jurisdictional. Under Delaware law, Claimant’s failure
to meet the statutory deadline, even by a few days, prohibits the Board from
accepting her appeal. FN 2

In cases of severe circumstances, however, the Delaware Supreme Court has
found that the Board may itse/f exercise its discretion under § 3320 to accept an
untimely request for appeal. FN 3 Such cases have been few and far between. And
the Board is extremely cautious in exerting its discretion in such cases. On those
rare occasions, typically there is a showing of some administrative error on the
part of the Department of Labor preventing a timely appeal. Or the Board finds
that the totality of circumstances show that the interests of justice require action
by the Board.

This is not one of those rare cases.

Here, the Board declines to exercise its discretion under § 3320 to accept
Claimant’s appeal request sua sponte. The Board finds no evidence of
Departmental error that prevented Claimant from filing a timely appeal of the
Referee’s Decision. Nor has Claimant provided any evidence of any severe
circumstances to justify the exercise of the Board’s discretion to hear the appeal in
the interests of justice. FN 4

The Board concludes that Claimant has been given notice and an opportunity to
be heard sufficient to satisfy the requirements of due process. FN 5

The Board DENIES the application for further review. The Decision of the
Referee is AFFIRMED and is final and binding. (Emphases in original).

FN 2 Chrysler Corp. v. Dillon, 327 A.2d 604, 605 (Del. 1974) (the
Board’s power to hear cases is defined by law and § 3318(c)
removes the Board’s power to accept a late appeal request).

FN 3 See Funk v. Unemployment Insurance Appeal Board, 591
A.2d 222, 225 (Del. 1991) (holding that the Board has the authority
to act sua sponte beyond the ten-day appeal period to consider a
case where no valid appeal has been filed by the parties.

FN 4 Claimant does not explain why she filed her appeal request
after the statutory deadline to do so. Accordingly, the Board is
without sufficient information to conclude that there was either a
Departmental error or that the interests of justice require the Board

 

‘Record at 73-74.
to take the extraordinary action of accepting the untimely appeal
request.

FN 5 The Board finds that Claimant was adequately notified of the
underlying Decision and that Claimant cannot attribute the lateness
of the appeal request to any Departmental error. Powell v.
Unemployment Insurance Appeal Board, 2013 WL 3834045, at * 2
(Del. Super. July 23, 2013).

Appellant filed an appeal of the Board’s decision to this Court. Her listed grounds for the
appeal are that she disagreed with the Board’s decision and she did not like the Board’s decision.
Her submission in support of her appeal contains the following: she never had filed for
unemployment so she was not familiar with their policies and procedures; she has stopped
receiving paychecks from the Department of Labor after receiving three paychecks and she does
not understand why; and she asks the Court’s assistance to help her discover why the paychecks
stopped. She does not explain why she did not file an appeal on time nor does she address, in any
manner, whether the Board abused its discretion in denying her appeal because it was not timely
filed. The Board asks the Court to uphold the decision. Appellant has not filed a reply thereto and
the matter is ripe for decision.

Standard of Review

As this Court recently explained in Pumphrey v. Allen Harim Foods,°

When reviewing the decisions of the Board, this Court must determine whether

the Board's findings and conclusions of law are free from legal error and are

supported by substantial evidence in the record. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion. The Court's review is limited: “[iJt is not the appellate court's role to

weigh evidence, determine credibility questions or make its own factual findings,

but merely to decide if the evidence is legally adequate to support the agency's
factual findings.”

 

°2019 WL 4034292, *2 (Del. Super. Aug. 26, 2019) (“Pumphrey’).

4
In reviewing the Board's decision, in this situation, the Court's analysis is twofold.

First, it is necessary to determine whether or not the finding that the appeal was

untimely is supported by the facts in the record. Second, “the Court must

determine whether the Board abused its discretion by not exercising, sua sponte,

its power to review the record for an injustice despite the untimely appeal.” This

Court will not disturb a discretionary ruling of an administrative agency unless it

is “based on clearly unreasonable or capricious grounds.” Furthermore, “an abuse

of discretion occurs where the Board exceeds the bounds of reason in view of the

circumstances and has ignored recognized rules of law or practice so as to produce

injustice.” (Footnotes and citations omitted).

Discussion

In its decision, the Board correctly explained the law guiding its determination as to
whether to allow appellant’s appeal to proceed. The Board may allow an appeal to go forward
even if it is untimely filed.° However, those situations are rare; they might happen when an
administrative error on the part of the Department of Labor deprived a claimant of the
opportunity to file a timely appeal or if inaction would not serve the interest of justice.’ If the
Board has not abused its discretion, then this Court upholds the Board’s decision.®

In this case, appellant has not shown any error on the part of the Board nor has she
presented any evidence of severe circumstances which would require her appeal to be heard in
the interest of justice. She has presented nothing which would support a contention that the
Board should have considered the appeal sua sponte.

Conclusion

Substantial evidence supports the finding that appellant’s appeal to the Board was

 

Id. at *3.
"Id.

“Id.
untimely filed. Furthermore, the Board did not abuse its discretion in applying the time limitation
which 19 Del. C. § 3318(c) imposes and in refusing to consider the late appeal sua sponte.
Consequently, the decision of the Board is AFFIRMED.

IT IS SO ORDERED.

  

Richard F. Stokes

cc: Prothonotary’s Office
Perdue Foods, LLC
Victoria W. Counihan, Esquire

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