SUPERIOR COURT
OF THE
STATE OF DELAWARE

T. HENLEY GRAVES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264

November 8, 2017

Keyauna M. Smack
22006 Mill Park Drive
Bridgeville, Delaware 19933

Re: Smack v. Randstad HR Solutions of DE ;
C.A. No. Sl7A-06-002 THG

Date Submitted: October 30, 2017
Date Decided: November 8, 2017

Dear Ms. Smack:

Keyauna Smack appeals the decision of the Unemployment Insurance Appeal Board (“the
Board”) that affirmed an Appeals Referee’s decision finding Ms. Smack was disqualified from the
receipt of unemployment benefits because she voluntarily quit her place of employment. The
Board’s decision is reversed and remanded for the reasons stated below.

Nature and Stage of the Proceedings

MS. Smack Was employed by Randstad HR Solutions of DE (“Employer”) on assignment
with FedEX, on January 5, 2017. At that time, a representative from FedEx informed Ms. Smack that
there Would be some “down time” and Ms. Smack filed for unemployment insurance benefits A
claims deputy reviewed Ms. Smack’s claim for benefits and determined Ms. Smack had voluntarily
quit her employment and, therefore, she Was disqualified from the receipt of benefits. Ms. Smack

appealed this determination and a hearing Was held before an Appeals Referee on March 14, 2017.

Ms. Smack appeared at the hearing and a representative for Employer participated in the hearing by
telephone. The Appeals Referee subsequently affirmed the claims deputy’s decision by way of a
written opinion mailed March 24, 2017. Ms. Smack appealed this decision and the Board held a
hearing on the matter on April 26, 2017. Employer did not appear at the Board hearing. By way of
written decision mailed June 5, 2017, the Board affirmed the Appeals Referee’s opinion. Ms. Smack
filed a timely appeal with this Court and the matter is ripe for decision.
Discussion

1. Standard of Review

When reviewing a decision 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.l “Substantial evidence” is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”2 The Court’S review is limited: “It is not the appellate court’s
role to weigh the 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.”3

Section 3314 of Title 19 of the Delaware Code provides, in pertinent part, that “[a]n

individual shall be disqualified for benefits [f]or the week in which the individual left work

 

1 Unemploymentlns. Appeal Bd. v. Martin, 431 A.2d 1265 (Del. 1981); Pochvatilla v.
U.S. PostalServ., 1997 WL 524062 (Del. Super. June 9, 1997); 19 Del. C. § 3323(a) (“In any
judicial proceeding under this section, the findings of the [Board] as to the facts, if supported by
evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the Court shall

be confined to questions of law.”).

2 Gorrell v. Division of Vocational Rehab., 1996 WL 453356, at *2 (Del. Super. July 31,
1996).

3 McManus v. Christiana Serv. Co., 1997 WL 127953, at *1 (Del. Super. Jan. 31, 1997).

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voluntarily without good cause attributable to such Work....”4 “Good cause” is such cause that
“would justify one in voluntarily leaving the ranks of the employed and joining the ranks of the
unemployed.”5 A claimant’s reasons for voluntarily leaving his place of employment may not be
personal in nature.6

2. Evidence Presented Below

MS. Smack testified she initially contracted with the temporary staffing firm Volt. Through
Volt, She was on assignment to FedEX when, at Some point, FedEx changed its temporary staffing
firm from Volt to Employer. At that time, the temporary workers on assignment to FedEx from Volt
were automatically transferred over to Employer.

In January of 2017, George Bowersox, a manager at FedEx and one of the few FedEx
employees who dealt with Employer on behalf of the contractors, informed Ms. Smack that volume
was low and that she would have some “off time.” Ms. Smack then applied for unemployment
insurance benefits.

Bo Barton, Esquire, testified via telephone on behalf of Employer. He introduced into
evidence a document titled “Employment Policies and Procedure”; an untitled document referred
to as the “Apple Agreement”; and a lengthier document identified as “Talent Agreement”
(collectively, “the Documents”). Ms. Smack denied having seen the Documents prior to her date of

separation and objected to their admission. MS. Smack testified she only recalled physically signing

 

4 19 Del. C. § 3314(1).

5 O’Neal ’s Bus Service, lnc. v. Employment Sec. Comm ’n, 269 A.2d 247, 249 (Del. Super.
1970).

6 Gorrell, 1996 WL 453356, at *3.

tax documents at the FedEX offices. Mr. Barton noted that the Documents had been authenticated
as they were sent to a specific email address and could only be accessed by entering the employee’s
social security number and a personal identification number unique to the employee. The Documents
indicate they were electronically acknowledged by Keyauna Smack on December 1, 2015. Ms.
Smack testified she did not have ownership or access to the email address to which the Documents
were sent for authentication. Mr. Barton testified Employer had no record of a physically signed W-4
or l-9 form for Ms. Smack. The Appeals Referee deemed the Documents admissible.

Pursuant to the Documents, Ms. Smack had a responsibility to notify Employer when her
assignment ended and to remain in weekly contact with Employer to inform Employer of her
availability for other assignments. The parties agree Ms. Smack did not contact Employer until
February 10, 2017, more than a month after her assignment With FedEx came to an end.

3. Ms. Smack’s Argument on Appeal

On appeal, Ms. Smack objects to Employer’ s failure to appear in person in these proceedings;
contends Employer should have contacted a FedEx employee regarding Ms. Smack’s condition of
employment; and challenges the validity of the electronically-signed documents admitted into
evidence.

The Board made the following findings of fact and conclusions of law:

The Board may affirm “any decision of an appeal tribunal on the basis of the
evidence previously submitted” in such case. The Board finds that the testimony
presented was substantially similar to that presented to the Referee, and the Board
can find no error of law in the Referee’s decision.

The Referee concluded, and the Board agrees, that [Ms. Smack] electronically
signed the Employer’s Policies and Procedures and Talent Agreement. Both
documents required [Ms. Smack] to notify the Employer when her temporary

assignment ended. [Ms. Smack] failed to do so and was considered to have

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voluntarily quit her position pursuant to 19 Del. C. § 3327(b). [Ms. Smack’s] reason for
failing to contact the Employer was personal and insufficient to justify [Ms. Smack’s] return
to the ranks of the unemployed Therefore, the Board adopts the Referee’s decision as its
own and finds that [Ms. Smack] has failed to meet her burden.7
Because Employer did not appear at the Board hearing, the Board relied upon the Employer’s
evidence as entered into the record at the Appeals Referee’s hearing and Ms. Smack’ s live testimony.
The procedure and conduct of the review of disputed claims are governed by the Board’s
regulations, codified in the Delaware Administrative Code.8 The Code sets forth requirements for
the admission of evidence before the Board. Specifically, it provides, “The Board shall not receive
into evidence any testimony offered by means of a telephone or other electronic or electromagnetic
device.”9
The Board relied solely on the Employer’s evidence presented before the Appeals Referee
and adopted the Appeals Referee’s credibility determination in favor of Employer that Ms. Smack
had received the Documents. The Board committed legal error by relying upon testimony offered by
means of a telephone in doing so. Accordingly, the Board’s decision must be reversed.
Conclusion

For the reasons stated herein, the Board’s decision disqualifying Ms. Smack from receiving

unemployment benefits is REVERSED and REMANDED for proceedings consistent with this

 

7 Board Decision, mailed June 5, 2017, at p. 2 (citations omitted).

8 19 Del. C. § 332l(a) (“The manner in which disputed claims shall be presented and the
conduct of hearings and appeals shall be in accordance with regulations prescribed by the []
Board for determining the rights of the parties, whether or not such regulations conform to
common-law or statutory rules of evidence and other technical rules of procedure.”)

9 19 Del. Admin. Code § 1201-4.7.4.

decision.

IT IS SO ORDERED.

Very truly yours,

l<\®“>#-

T. Henley Graves

cc: Randstad HR Solutions of DE
Unemployment Insurance Appeal Board

oc: Prothonotary

