This 28th day of October 2004, upon consideration of the pro se appeal of Tykene Johnson from the decision of the Unemployment Insurance Appeal Board (the “Board”), dated February 23, 2004, denying his application for benefits, it appears to the Court that:
1. Mr. Johnson was employed by Lou’s of Wilmington (“Lou’s”) from September 1, 1997 through August 23, 2003 as a salesman in the Jewelry and Pawn Shop.1 In August 2003, while on vacation, Mr. Johnson called Lou’s and informed Karen Brown, his manager, that he was thinking about entering the next freshman class at Delaware State University.2 At that time, Mr. Johnson asked if he could work part-time during school.3 Ms. Brown advised him that it was unlikely that there would be part-time work available.4 Ms. Brown then confirmed with the owner of Lou’s that, in fact, no part-time positions were available and advised Mr. Johnson accordingly.5 Mr. Johnson said “ok” and the conversation ended.6 At no time during this conversation did Mr. Johnson state that he intended to leave his job unless parttime work was offered to him.7
2. The following day, Mr. Johnson’s mother informed Ms. Brown that Mr. Johnson would not be starting school right away, and that she and her son were going down to visit the school later that week.8 Ms. Brown requested that Mr. Johnson call her upon his return to Wilmington.9 Mr. Johnson called Ms. Brown that next weekend, again asked about part-time work, specifically Saturdays,10 and advised Ms. Brown that things were “not looking good for school.”11 Ms. Brown again reiterated that no part-time positions were available and advised Mr. Johnson that his position had been filled.12 Mr. Johnson then went to the store personally to try to get his job back but to no avail.13
3. Mr. Johnson filed a request for unemployment benefits with the Delaware Department of Labor, Division of Unemployment Insurance on September 9, 2003. The Claims Deputy denied his request upon concluding that Mr. Johnson “left his employment for personal reasons...,” specifically to attend school.14 As such, the Claims Deputy determined that Mr. Johnson had not established good cause for resigning and “[was] disqualified from receipt of benefits.”15 Mr. Johnson appealed the Deputy’s findings and, on November 5, 2003, a hearing was held before an Appeals Referee. The Referee agreed with the Claims Deputy and found that “[Mr. Johnson] voluntarily quit [to attend school] without good cause attributable to his work.”16 Mr. Johnson appealed the Referee’s decision to the Board and a hearing was conducted there on January 21, 2004. Mr. Johnson testified before the Board; a representative from Lou’s did not appear. The Board affirmed the Referee and found that Mr. Johnson voluntarily quit his employment from Lou’s without good cause when he elected to attend college at Delaware State University. The Board concluded that Mr. Johnson initiated his separation from Lou’s when he informed his employer that he was going to start college, and that his request for part-time work demonstrated that he no longer wished to be a full-time employee.17 Mr. Johnson now appeals that determination to this Court.
4. In this appeal, Mr. Johnson disputes the Board’s finding that he voluntarily left work.18 Instead, he contends that he was fired without just cause. Specifically, he argues that he was fired after he informed his employer that he was thinking about going to school and inquired about the availability of part-time work. He also questions the fairness of the Board’s process since Lou’s failed to appear at the Board’s hearing, contends that he was treated unfairly and emotionally abused by Lou’s, and alleges that he never received the pay increases that he was promised.
5. The Court’s standard of review of the Board’s decision is well settled. The Court must determine whether the Board’s factual findings are supported by substantial evidence and free from legal error.19 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”20 It requires “more than a scintilla but less than a preponderance” of the evidence.21 The Court does not weigh evidence, assess credibility, or make independent factual findings.22
6. The Board agreed with the Referee’s conclusion that Mr. Johnson voluntarily left his employment with Lou’s (as opposed to being discharged). Accordingly, the Board applied Section 3315(1), which provides that an employee is disqualified from receiving benefits “[f]or the week in which the individual left work voluntarily without good cause attributable to such work and for each week thereafter until the individual has been employed in each of 4 subsequent weeks...”23 Good cause is defined as a reason that “would justify one in voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.”24 The reason(s) must be connected with the employment, such as nonpayment of wages, a substantial reduction in hours or wages, or a substantial, detrimental deviation from the original employment agreement.25 “Good cause” cannot be demonstrated when the employee leaves “for personal reasons.”26 In the voluntary separation context, the employee bears the burden to establish good cause.27
7. The determination of whether the employee voluntarily separated from his employer or was terminated by the employer is significant to the legal analysis. If the Board had concluded that Mr. Johnson was terminated from his employment, then the Board would have applied Section 3315(2), which declares that individuals who are discharged for just cause are ineligible for benefits.28 “Just cause” in this context is “a willful or wanton act in violation of either the employer’s interest or of the employee’s duties or of the employee’s expected standard of conduct.”29 Under this analysis, the employer bears the burden to establish just cause for termination.30 The issue in this case is whether the Board’s finding that Mr. Johnson voluntarily left his employment with Lou’s is supported by substantial evidence.
8. To support a finding that an employee voluntarily quit or resigned from his/her employment, the record must contain substantial evidence that “the employee left on his/ her own motion, rather than was discharged, and it is required that the employee had a conscious intention to leave or terminate the employment.” 31 This conscious intent may either be expressly manifested, such as through the employee’s words, or implicitly manifested through the employee’s actions, such as when the employee abandons his/her job.32 There is no suggestion in the record sub judice that Mr. Johnson ever expressly manifested his intention to quit his job. Rather, the Board concluded that this intent was manifested implicitly by Mr. Johnson’s inquiry regarding part-time work while attending school.
9. It is true that courts in other jurisdictions have held that when an employee requests a change in status from full-time to part-time employment, the employee can be deemed to have voluntarily quit his job.33 In each of these cases, however, there is a key distinction not present in the facts here: when the employee asked for part-time work, the request was granted.34 When the employee’s request for part-time work is granted, a legally significant change in work status occurs. Specifically, the employee voluntarily elects to terminate his full-time employment status and thereby sacrifices his right to unemployment benefits.35
10. In this case, the Court is satisfied that the guidance offered by Ganly’s Pub and Deli v. Unemployment Compensation Board is more helpful here.36 In Ganly’s, the employee informed her employer that she would be looking for another job in order to allow her more time to care for her mother.37 The employee gave no indication, however, of when she would be leaving the job. Four days later, the employee informed her employer that she had not found a job and, in fact, had not even looked.38 When her employer set her last day of work, the employee reiterated that she needed a job and would like to stay.39 On the date specified by her employer, the employee was given a letter stating that she would not be rehired and thereafter was removed from the work schedule.40 In determining that the employee was eligible for unemployment benefits, the court found that the employee did not voluntarily quit her employment, but instead was discharged.41 The court reasoned that the employee’s statement to her employer that she “would be looking for another job,” by itself, was not sufficiently definite to constitute a resignation.42 This Court agrees with the reasoning in Ganly’s and finds it persuasive in this case.
11. Even on a “substantial evidence” standard of review, to conclude that Mr. Johnson voluntarily left his employment at Lou’s, the Court would have to conclude that Mr. Johnson’s inquiries regarding the availability of part-time work demonstrate some conscious intent to resign. Given the description of these inquiries in the record, however, the Court cannot agree with the Board that Mr. Johnson left Lou’s on his own motion or that he had a conscious intention to leave or terminate his employment with Lou’s. When Mr. Johnson spoke with Ms. Brown while he was on vacation, he did not ever state definitively that he intended to go to college much less provide a date on which he would be leaving for school. Nor did he indicate to Ms. Brown that if she was unable to accommodate his request for part-time work that he would resign his position with Lou’s. Rather, he merely informed Lou’s that he was thinking about going to school and inquired into whether he could work part-time if he did so. Indeed, when Ms. Brown informed Mr. Johnson that she had spoken with the owner and had confirmed that Lou’s would not offer part-time work, Mr. Johnson simply replied “ok.” Like the employee’s statements in Ganly’s, Mr. Johnson’s statement to Ms. Brown that he was thinking about starting school and his inquiry regarding part-time work, alone, are not enough to show a conscious intent to resign. Consequently, the Court must conclude that there is not substantial evidence to support the conclusion that Mr. Johnson resigned from his position at Lou’s.
12. Because the Court has concluded the Board’s determination that Mr. Johnson voluntarily resigned is not supported by substantial evidence, it is not necessary to address whether Mr. Johnson may have had “good cause” to resign, nor is it necessary to address any of Mr. Johnson’s other contentions regarding the fairness of the proceedings below or the quality of his work experience.
13. Based on the foregoing, the decision of the Board denying Mr. Johnson’s unemployment benefits is REVERSED and the matter is REMANDED for a determination of whether Mr. Johnson was terminated without just cause.
IT IS SO ORDERED.
Judge Joseph R. Slights, III
Original to Prothonotary