SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 

RE: Felipe Valentin v. Robert Thomas Salon 

Date Submitted: October 16, 2007 
Dear Messrs. Valentin and Baykowski: 

This is my decision on Felipe Valentin’s appeal of the Unemployment Insurance Appeal 
Board’s denial of his claim for unemployment benefits. Valentin is a hair stylist at the Robert 
Thomas Salon in Rehoboth Beach, Delaware. He filed a claim for unemployment benefits with the 
Department of Labor because he was not busy at work in the winter. The Claims Deputy, Appeals 
Referee and Board all denied Valentin’s claim, concluding that he is a part-time employee who sets 
his own schedule and works only as much as he wants to work. Valentin then filed an appeal with 
this Court. 

STATEMENT OF THE CASE 

There were hearings before the Appeals Referee and Board. Valentin and Thomas 
Baykowski, a co-owner of the Salon, testified at both hearings. The Salon is open five days a week 
from 9:00 a.m. to 7:00 p.m. The Salon’s customers fall into two categories - those that make an 
appointment with a particular hair stylist and those that simply walk into the Salon without an 
appointment and see the next available hair stylist. The Salon offers a variety of services, including 
haircuts, "colorings," "perms" and "updos." Valentin started working for the Salon in October 2004 
and still works there. He sets his own work schedule and only cuts hair. From January to March, 
he works Wednesdays through Fridays and on Saturdays if a customer makes an appointment with 
him. From April to December, Valentin works Wednesdays through Saturdays. Valentin is paid on 
a commission basis equal to one-half of his customers’ bills. He generally works from 10:00 a.m. 
to 4:00 p.m. However, Valentin goes home early if he does not have any customers. If a walk-in 
customer comes in after Valentin has left, then he loses the customer. Valentin testified that the 
Salon could call him and he could be there in approximately 20 minutes. Baykowski testified that 
this is impractical because customers will not wait that long. He also testified that Valentin could 
work up to eight hours a day, but has never worked more than five. Valentin’s refusal to do anything 
other than cut hair and wait at the Salon for walk-in customers reduces his opportunities to work 
more and make more money according to Baykowski. 

The Board found that Valentin was not "partially unemployed," reasoning that he does not 
have "normal customary full-time hours" against which partial unemployment could be measured 
because he sets his own hours. The Board also found that Valentin’s hours were not reduced by the 
Salon because of a lack of business, but because he has simply decided not to work more. 

STANDARD OF REVIEW 

The Supreme Court and this Court repeatedly have emphasized the limited appellate review 
of the factual findings of an administrative agency. On appeal from a decision of the Board, this 
Court is limited to a determination of whether there is substantial evidence in the record to support 
the Board’s findings, and that such findings are free from legal error.1 Substantial evidence means 
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.2 The 
Board’s findings are conclusive and will be affirmed if supported by "competent evidence having 
probative value."3 The appellate court does not weigh the evidence, determine questions of 
credibility, or make its own factual findings.4 It merely determines if the evidence is legally adequate 
to support the agency's factual findings.5 Absent an error of law, the Board's decision will not be 
disturbed where there is substantial evidence to support its conclusions.6 In reviewing an appeal 
from the Board, the Court is limited to determining whether or not there is substantial evidence in 
the record to support the Board’s finding, and that such findings are free from legal error. 

DISCUSSION 

19Del.C. § 3315 states that "[a]n unemployed individual shall be eligible to receive benefits 
with respect to any week only if the Department finds that the individual: ... (3) is able to work and 
is available for work and is actively seeking work...." 19 Del.C. § 3302(17) states that: 

"Unemployment" exists and an individual is "unemployed" in any week during 
which the individual performs no services and with respect to which no wages are 
payable to the individual, or in any week of less than full-time work if the wages 
payable to the individual with respect to such week are less than the individual’s 
weekly benefit amount plus whichever is the greater of $10 or 50% of the 
individual’s weekly benefit amount. The Department shall prescribe regulations 
applicable to unemployed individuals making such distinctions in the procedures as 
to total unemployment, part-total unemployment, partial unemployment of 
individuals attached to their regular jobs and other forms of short-time work as the 
Department deems necessary. 

Department of Labor Regulation 15(1)(a) states that "a partially unemployed individual is 
one who, during a particular week (i) earned less than his weekly benefit amount plus two dollars, 
(ii) was employed by a regular employer, (iii) worked less than his normal customary full-time hours 
for such regular employer because of lack of full-time work."7 
The Board’s decision that Valentin is not "partially unemployed" is both in accordance with 
the applicable law and supported by substantial evidence in the record. Valentin is a part-time 
employee who does not have normal customary full-time hours.8 Baykowski testified that Valentin 
was hired as a part-time worker and that he has never worked more than five hours in a day. 
Valentin himself testified that he sets his own schedule and goes home early if he wants to do so. 
Moreover, Valentin’s hours were not reduced by the Salon due to a lack of work, but by his own 
work practices. The Salon is open more days and hours than Valentin has ever worked. Baykowski 
testified that, at the very least, Valentin could pick up more hours and walk-in customers if he were 
simply willing to stay at work longer. Valentin refused to do that. Thus, his "reduced hours" merely 
reflect his desire not to work more and are in no way related to the Salon’s actions. 
CONCLUSION 

The Unemployment Insurance Appeal Board’s decision is affirmed. 

IT IS SO ORDERED. 

Very truly yours, 

E. Scott Bradley