IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PLANNED PARENTHOOD OF
DELAWARE, INC.,

Appellant,
C.A. No. N18A-11-006 CEB
Vv.

YOLANDA M. CORBIN and,
UNEMPLOYMENT INSURANCE
APPEAL BOARD,

Nee ee ee’ Nee’ Ne ee” ee” ee” ee’ ee” ee” ee”

Appellee.

Submitted: May 30, 2019
Decided: August 8, 2019

MEMORANDUM OPINION

Appeal From the Decision of the
Unemployment Insurance Appeal Board.
REVERSED and REMANDED.

Jennifer Gimler Brady, Esquire and Jennifer Penberthy Buckley, Esquire, POTTER
ANDERSON & CORROON, LLP, Attorneys for Appellant Planned Parenthood of

Delaware, Inc.

Scott T. Earle, Esquire and Zachary A. Silverstein, Esquire, ZARWIN BAUM
DEVITO KAPLAN SCHAER TODDY, P.C., Attorneys for Appellee Corbin.

Daniel C. Mulveny, Esquire, Deputy Attorney General for the STATE OF
DELAWARE, Attorney for Appellee Unemployment Insurance Appeal Board.

BUTLER, J.
I. FACTUAL BACKGROUND

Yolanda Corbin (“Corbin” or “Claimant’”) worked at Planned Parenthood of
Delaware, Inc. (“PPDE”), as a revenue cycle manager from March 2015 until August
14, 2017, when she was terminated. Shortly thereafter, Ms. Corbin filed a claim for
unemployment benefits.

Ms. Corbin’s termination came at the end of a string of problems with her
employment resulting in a number personnel actions.! In October 2015 there was a
“coaching plan” formalizing some of her shortcomings on the job.” In January 2017
there was a “verbal warning” followed by a “compliance discussion.’ By July of
2017, Corbin was given a “performance improvement plan.”

Then, in August 2017, PPDE learned that Corbin had approached an employee
in the payroll department and told her she (Corbin) was “working on a project

regarding people’s salary” and seeking pay information on other employees within

 

1 All references to the Certified Record of the Unemployment Insurance Board,
Docket Entry No. 8, Trans. ID No. 62930421 (January 30, 2019), will be cited herein
as“R.at.”

2R. at 6-7 (Employee coaching/planning form & action planning worksheet, October
2, 2015).

3R. at 8 (Employee verbal/written warning, January 3, 2017).
“R. at 485 (Decision of appeals referee at p. 2).
l
PPDE.° In fact, Corbin was not working on an employer-authorized project and
salary disclosures violated an employer’s privacy policy. This became the “final
straw” and triggered Corbin’s termination.

In its formal notice of termination, PPDE listed the following deficiencies as the
basis for its actions: 1) Corbin misrepresented to a payroll clerk that Corbin was
working on a project and needed management pay information; 2) failed to meet the
basic competencies of her position despite multiple coaching and performance
improvement communications; 3) reacted poorly to coaching and feedback,
including responding with emails to her supervisor and HR manager with malicious,
false and harmful statements; and 4) failed to take responsibility for completing her
work and instead passing it off to others.°

Il. PROCEDURAL HISTORY

Upon application for unemployment benefits, PPDE filed a response. A claims

deputy ruled that Corbin’s termination was without just cause and she was eligible

to receive unemployment benefits as a result.’ PPDE appealed that determination.

 

5R. at 40 (Statement of PPDE payroll clerk, August 29-30, 2017).
©R. at 15 (PPDE Employee Termination Form for Corbin, August 15, 2017).

TR. at 42-43 (claims deputy’s Notice of Benefits Determination, September 1, 2017).
2
The dispute then came to an appeals referee, who heard the evidence de novo, on
a record that was transcribed.® At that hearing, the Human Resources manager for
PPDE explained that the performance improvement plan was an effort to bring
Corbin’s performance up to par, but her dishonesty in requesting management pay
information was a step beyond the employer’s tolerance, and she was terminated.’
The appeals referee reversed the ruling of the claims deputy, concluding that
Corbin was not entitled to benefits. The appeals referee ruled:
While poor performance without proof of intentional or gross
misconduct as its cause will not disqualify a discharged individual from
the receipt of unemployment insurance benefits, this tribunal is left with
the impression that her failure to satisfactorily meet expectations was
essentially intentionally insubordinate. However, the final incident
Claimant is alleged to have committed makes the issue moot, in that it
allows for the immediate termination of employment for any such
violation.!°
Ms. Corbin then appealed the referee’s decision to the Unemployment Insurance
Appeals Board (“UIAB”).
At the UJAB hearing, the Board asked the parties to limit their presentation to

materials not already in the record as the Board had the record of proceedings before

the appeals referee. Corbin testified before the Board that she worked in the finance

 

8 R. at 68-145 (Transcript of hearing before appeals referee, October 26, 2017).
°*R. at 79-91 (testimony of PPDE HR manager).

10R. at 54 (Decision of appeals referee).

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area of PPDE and had access to the pay information of all employees. She denied
having asked any other employee to look up pay information of other employees on
her behalf. Finally, she testified that other employees had accessed employee pay
information without discipline. PPDE appeared at the hearing, but rested on the
record established before the appeals referee.

The UIJAB reversed the appeals referee and sided with Corbin. As to her work
performance, the Board said only that “[t]he majority finds that Employer has failed
to provide sufficient evidence showing that Claimant’s substandard conduct was
willful such that there were would be just cause to terminate Claimant.”!! As to the
final straw evidence that Corbin asked a coworker to look up salary information as
part of a project Corbin was working on, the Board, pointing to Corbin’s claim that
others had looked up such information in the past without discipline, held that
“Employer’s evidence does not sufficiently outweigh Claimant’s evidence that the
majority can conclude there was just cause to terminate Claimant.”

PPDE has appealed the decision of the UIAB, invoking this Court’s

jurisdiction for appellate review.

 

41R, at 154 (written opinion of the Board, November 5, 2018).
2R. at 155 (written opinion of the Board, November 5, 2018).
4
Il. STANDARD OF REVIEW
This Court is limited to consideration of the record before the administrative
agency when reviewing UIAB decisions.'? The Court must determine whether the
board findings of fact and conclusions of law are free of legal error and supported
by substantial evidence in the record.'* The Court does not weigh evidence,
determine issues of credibility related to testimony or the record, or make its own
findings of fact.'> Sitting in appellate review, the Court merely determines if the

evidence is legally adequate to support the agency's factual findings.'°

 

'3 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366 at *2 (July 27, 2011),
citing Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761, 763 (Del.1976).

14 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366 at *2 (July 27, 2011),
citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del.1981);
Pochvatilla v. United States Postal Serv., 1997 WL 524062, at *2 (Del.Super.1997);
19 Del. C. § 3323(a)(“In any judicial proceeding under this section, the findings of
the [UIAB] 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.”).

15 See Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.1965).

'6 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366 at *2 (July 27, 2011),
citing Majaya v. Sojourners' Place, 2003 WL 21350542, at *4 (Del.Super.2003); see
19 Del. C. § 3323(a) (absent fraud, the factual findings of the Board shall be
conclusive and the jurisdiction of a reviewing court shall be confined to questions of
law).
Where a party bearing the burden of proof fails to convince the Board below,
the resulting findings of fact can be overturned by the Court “only for errors of law,
inconsistencies, or capricious disregard for competent evidence.”!”

IV. ANALYSIS

The Court is mindful of our deferential standard of review of decisions of
administrative agencies. But we must also be mindful that even limited review is
not “without teeth” and, particularly where there appears to be a process error, we
must be concerned whether a faulty process may have produced a faulty result.'®

This duty to review the record is particularly acute where the UIAB has
overruled the appeals referee after the appeals referee took live testimony and made
factual findings and legal conclusions based upon that testimony.

In reviewing the record, we are aided by the transcript of the testimony before
the appeals referee, his formal Findings of Fact and Conclusions of Law, as well as

the transcript of the hearing before the Board and its written “Decision Below,” its

“Summary of the Evidence” and its “Findings of Fact and Conclusions of Law.”

 

17 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366 at *2 (July 27, 2011),
citing Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238 (Del.Super.1979).

18 See generally, Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215 (Del. 2015).
The Court notes, significantly, that at the outset of the Board hearing, the
parties were instructed by the Board, “[t]his is the Claimant’s opportunity to explain
to the Board why she disagrees with the referee’s decision. The Board has reviewed
all the testimony and evidence that was presented to the referee. Please present only
new evidence, new testimony and the reasons why you disagree with the referee’s
decision.”'? As the prevailing party before the appeals referee, PPDE obviously did
not disagree with the referee’s decision and had nothing to add.

While the Board announced that it had “reviewed” all the testimony before
the appeals referee, its written “Decision Below” is essentially a copy of the referee’s
formal, written Findings of Fact and contains no material from the transcript
whatsoever. The only “Summary of the Evidence” in the Board decision is the
summary of the evidence before the Board, which according to the Board’s own
mandate, consisted solely of the Claimant’s testimony and arguments why she felt
the referee ruled in error. There is thus no evidence that the Board considered, or
even saw, the transcript of the proceedings before the appeals referee. Adopting the
referee’s Findings of Fact may be inconsequential when the Board elects to adopt
his ultimate conclusion, but reversing the appeals referee would seem to mandate a

more searching inquiry into exactly what was before the referee.

 

'°R. at 161 (transcript of hearing before UIAB, October 10, 2018)(emphasis added).
7
This problem is more acute here because despite the Board’s admonition to
confine the testimony to new material, Corbin’s testimony before the Board was not
new evidence or testimony. She argued to the Board that 1) the coworker that
informed management that Corbin had sought employee pay information was a liar,
2) Corbin already had access to employee pay information and did not need help and
3) another employee had published pay information and nothing happened to him.”°
These arguments were specifically credited by the Board in its final ruling and,
because it was a reversal of the appeals referee, they take on more significance as
they apparently turned the Board’s decision in favor of Corbin.

But Corbin had already testified before the appeals referee that the employee
that she allegedly approached was a liar.?!_ On this point, PPDE’s witness testified
that she spoke to the employee in question who both told and wrote down what
Corbin said to her.” The alleged falsehoods had to do with evidence that the
coworker texted Corbin asking Corbin if she knew anyone who would falsify
documents concerning her weight loss surgery.”> Since Corbin testified that they

were friends, it is anybody’s guess what the context of this text message was, but its

 

20 R. at 162-64 (testimony of Corbin before the Board).

21. R. at 130 (testimony of Corbin before the appeals referee).

2R. at 102-106 (testimony of PPDE compliance officer before appeals referee).

23 R. at 150 (text messages between PPDE payroll clerk and Corbin, July 2017).
8
value as evidence that the employee lied about being approached to provide
confidential PPDE payroll information is dubious at best. Lying about one’s weight
is a virtual national pastime; lying about a serious incident involving improper
conduct by a coworker is something else altogether. While the appeals referee took
in all this evidence, the Board did not. And the appeals referee did not include it in
his formal findings.

Corbin also testified before the appeals referee that she already had access to
employee pay information and did not need to ask for help in getting it.24 Her
argument before the Board was not new. Had the Board read the transcript of the
hearing before the referee, it would have seen that the appeals referee specifically
discussed and understood that “access” to payroll information and “authorization to
look” are two quite different things.*° Had Corbin accessed the information through
her own computer, a simple audit would have revealed it; getting a payroll clerk with
permitted access to do so would not.

Finally at the appeals referee hearing, the question whether another employee
had accessed pay information without sanction was addressed. 7° Again, this was

not a new argument. At the referee hearing, PPDE agreed that an employee with

 

4 R. at 111 (testimony of Corbin before appeals referee).
> R. at 102-106 (testimony of PPDE compliance officer before appeals referee).
26 Td.
authorized access to the information had published it. PPDE believed that Corbin’s
primary wrongdoing was her attempt to gain access that she knew she was not
authorized to have.?” Moreover, the employee who published the pay information
was, in fact terminated, albeit for that and other reasons.78 So Corbin’s reference
before the Board to the other employee was not well taken — they were different
wrongs and Corbin misstated both the wrong done and the ultimate sanction.

The point of all this is that these issues were all raised before the appeals
referee but received bare mention in the referee’s written findings. They were
certainly not “new testimony” or “new evidence” in accordance with the Board’s
directive before its own hearing began. Rather, they were Corbin’s arguments that
were implicitly rejected by the referee. Having assured the parties that it was well
familiar with the full record before the appeals referee, the Board should not have
expected PPDE to attempt a full on rebuttal of Corbin’s arguments before the Board
as these same arguments had been raised and rebutted before the referee. The parties
were told not to raise the same issues or arguments again. Corbin’s failure to follow
the Board’s directive should not inure to her benefit. Indeed, if the Board had read

the transcript of the hearing before the appeals referee, one might presume the Board

 

7R. at 103-104.
8R. at 103-104.
10
would have stopped Corbin as she was clearly repeating arguments already rejected
by the appeals referee.

The Board’s restriction of PPDE’s arguments on appeal to the Board created
a process problem that unfairly benefitted Corbin and prejudiced PPDE.
Admittedly, that problem would have been ameliorated somewhat had the Board
examined the transcript of the hearing before the appeals referee, but there is no
evidence that it did so. Likewise, the problem might have been ameliorated if PPDE
had simply ignored the Board’s admonition to limit argument to new matters not
raised below. But there is no rule that grants a party the right to break the rules. The
Board set the rules. PPDE followed them.

All of this resulted in a proceeding before the Board that suffered from
ambiguous direction from the Board and flawed logic in its ultimate result. The
Court will therefore remand this matter in order for the Board to hear all evidence
and argument from both sides. The Board is certainly free to undertake whatever
remedial measure it deems necessary to ensure that both sides are able to present
their case to the “neutral and detached arbiter” that we must presume the Board to
be.

While this ends the Court’s inquiry, it bears mention that the Court has

reviewed the regulations regarding hearings before the Board and notes that

11
proceedings before the appeals referee are regulated in some detail.?? The Board’s
directive to the parties at the beginning of the hearing here are consistent with its
regulations: “The parties shall not re-litigate the case presented to the Referee, but
may present additional evidence.”*? Unfortunately, the regulations are silent as to
what standard of review the Board is to apply to findings of fact made by the appeals
referee. And they are silent as to what to do when an appellant to the Board wishes
to “present additional evidence” that is not “additional” or “evidence” but instead
just re-argument of issues already decided by the appeals referee.

Moreover, while the Court is restricted to a deferential standard of review of
findings by the Board, the Board apparently is not similarly restricted in its review
of findings by the referee who has actually seen and heard the witnesses. This
understandably leaves the parties in a vague netherworld before the Board, forced to
guess what it may rely on from the previous proceedings and unsure by what
standards the record below will be judged. The Board would do well to use its
rulemaking authority to formalize its standard of reviewing findings by the appeals

referee. Clear standards of review of the appeals referee’s findings and clear

 

29 See 19 Del. Admin. Code 1200-UNEMP 18.
39 19 Del. Admin. Code 1201-UNEMP 4.1.
12
standards for what is admissible new evidence before the Board may assist future
litigants in their journey to a just and fair result.
Vv. CONCLUSION

At this point, it is not clear whether the Board considered the full record and
testimony before the appeals referee or only the referee’s written Findings and
Conclusions. Neither is it clear whether the limitations the Board placed on the
testimony or evidence before the Board unfairly or mistakenly restricted PPDE in
responding to the statements by Corbin before the Board, which improperly
reiterated materials already argued before the referee and triggered the Board’s
reversal of the referee. The Court cannot review what it cannot understand.

Pursuant to 29 Del. C. §10142(c), “If the Court determines that the record is
insufficient for its review, it shall remand the case to the agency for further
proceedings on the record.”3! The Court concludes that this is the appropriate
remedy in this case.

This matter is hereby REVERSED and REMANDED.

IT ISSO ORDERED.

 
  

 

: Judge Charles

 

3199 Del. C §10142(c).
13
