NUZHAT ABBASI, Claimant-Below/ Appellant, v. OSCAR A. FULLER CO. and UNEMPLOYMENT INSURANCE APPEAL BOARD, Appellees.

C.A. No. 07A-02-006 MJB.Superior Court of Delaware, New Castle County.Submitted: December 17, 2007.
Decided: March 26, 2008.

On Appeal from the Unemployment Insurance Appeal Board.AFFIRMED.

Nuzhat Abbasi, Newark, Delaware, Appellant, pro se.

Mary Page Bailey, Esq. Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee, Unemployment Insurance Appeal Board.

OPINION AND ORDER
BRADY, J.

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This is an appeal from a decision of the Unemployment Insurance Appeal Board (“Board”) which denied unemployment benefits to Nuzhat Abbasi (“Claimant”). Claimant voluntarily quit her job due to a dispute over her work hours. After a hearing that took place on January 17, 2007, the Board determined that Claimant failed to exhaust all other remedies before leaving employment. Therefore, the Board found that Claimant did not voluntarily quit for good cause. After considering Claimant’s argument on appeal,[1] the Board’s decision is AFFIRMED.

Facts
Claimant worked as a part-time hairstylist from March 1, 2006 until October 7, 2006 at a Cost Cutters franchise owned and operated by Oscar A. Fuller Co. (“Employer”). Prior to her employment, Claimant interviewed with Employer’s Area Supervisor Kimberly Kraznowski (“Kraznowski”) and General Manager and Vice President of Operations Lynn Newsome (“Newsome”). Newsome testified that during the interview, Claimant was told that Cost Cutters requires all employees to work at least two evening

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shifts per week. Newsome also testified that during the interview Claimant stated that she is a Muslim and will occasionally need time off to celebrate certain Islamic holidays with her family. Newsome informed her of Cost Cutters’ time-off policy, which required her to submit a request form ahead of time. Newsome testified that she agreed to try her best to accommodate any of Claimant’s religious and family obligations. On two occasions prior to Claimant’s departure from Cost Cutters, she submitted a leave request form, and both of these requests were granted.

At the hearing below, Employer moved into evidence its employee handbook. The handbook outlined a grievance procedure for handling employee complaints regarding working conditions and harassment. In such circumstances, employees are instructed to submit a written complaint to their immediate supervisor, who must address the complaint within five days. If the complaint is not satisfactorily resolved, employees may contact the General Manager and Vice President of Operations. Newsome testified that this policy is also conspicuously posted on the work premises.

The record before the Court indicates that Claimant complained informally about the number of hours that she was required to work,[2]
but no

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evidence indicates that she ever lodged any formal, written complaints as per the Employer’s grievance procedure. Claimant testified that employees were discouraged from lodging complaints with anyone other than their immediate supervisor, but Newsome directly refuted this allegation.

Mid-September 2006 to mid-October 2006 was the Islamic Holy Month of Ramadan. During Ramadan, Muslims fast from sunrise to sunset, at which time they eat a family dinner. Employer gave Claimant a split schedule during Ramadan. Accordingly, on days where claimant was required to work until closing, she was scheduled to work 9 a.m. to 1 p.m. and 7 p.m. to 9 p.m. Therefore, Claimant was able to leave work, eat dinner with her family, and then return to finish her shift. Claimant did not submit a written request for any time-off during Ramadan. Newsome testified that Claimant was not the first Islamic employee to work at Cost Cutters, and this split schedule adequately accommodated the needs of past employees who celebrated Ramadan.

On or about October 7, 2006, Claimant contacted Kraznowski and told her that she did not want to work any more evening shifts during

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Ramadan.[3] Kraznowski reminded Claimant that every employee is required to work at least two evening shifts per week. Claimant then requested a two-week unpaid leave of absence, which Kraznowski also denied. Claimant then tendered her letter of resignation.

Standard of Review
This Court’s review of the Board’s decision is limited to determining whether the decision is free from legal error and supported by substantial, competent evidence.[4] “The Board is to solve any questions as to credibility and conflicts.”[5] On appeal, Claimant is bound by the record of the administrative hearing and cannot seek to enlarge the record by offering additional evidence.[6] “Where a party with the burden of proof fails to convince the Board below, the resulting finding of fact can be overturned by

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this Court only for errors of law, inconsistencies, or a capricious disregard for competent evidence.”[7]

Analysis
Pursuant to the Delaware Code, an individual who voluntarily leaves work without good cause is not eligible to receive unemployment compensation.[8] The claimant has the burden of proving good cause for voluntarily leaving employment.[9] Good cause does not exist merely because of an undesirable work situation. Rather, a claimant must “first do something akin to exhausting his administrative remedies by, for example, seeking to have the situation corrected.”[10]

In the instant case, the Board found that Claimant failed to meet her burden of persuasion on the issue of whether she left her position for good

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cause. Specifically, the Board found that Claimant’s employer attempted to accommodate Claimant’s “religious needs in such a way as would neither offend Islam nor impose extra burdens on employees of other religious persuasions.”[11] When Claimant found her schedule unsatisfactory, she raised her concerns with her immediate supervisor. After her concerns were not addressed to her satisfaction, she resigned. Thus, the Board found that Claimant failed to exhaust other possible remedies before resigning.

Claimant does not allege any legal error in the Board’s decision. Rather, she argues that the Board failed to address her concern that she was hired as a part-time employee but was given more hours than what she had agreed to work at the time of hire. She argues that she used the correct procedure to address her concerns because she contacted Kraznowski, who was Claimant’s immediate supervisor. Claimant argued that she did not contact anyone above Kraznowski because she assumed that her complaints went up the organization’s chain of command since employees were discouraged from bypassing their immediate supervisor.

Claimant does not dispute the fact that she failed to address her concerns with any member of management above Kraznowski. Although

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Claimant testified that employees were discouraged from going outside the chain of command, her testimony on this issue was directly refuted by Newsome. It is the role of the Board, not of this Court, to reconcile conflicting testimony. Implicit in the Board’s decision is its acceptance of Newsome’s testimony over Claimant’s, and the Court cannot disturb this factual finding. Even though Claimant assumed that others in the organization’s hierarchy were informed of her complaints, this assumption is contrary to the clear, written complaint procedure adopted by the Employer.

There is some evidence in the record to suggest that the true nature of the dispute was the number of hours that Claimant was requested to work on a weekly basis. Claimant may have informally complained about her work hours, but no evidence suggests that she made any formal written complaints as outlined in the Employer’s grievance procedure. Further, the exact nature of the dispute was not particularly dispositive of the Board’s ultimate decision. The crucial issue was whether or not Claimant exhausted all other possible avenues before resigning. Claimant had the burden of proving that she exhausted other remedies, and the Board found that she did not satisfy this burden. This finding is supported by the record.

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Conclusion
For the forgoing reasons, the decision of the Unemployment Insurance Appeal Board is hereby AFFIRMED.

IT IS SO ORDERED.

[1] The Board did not file an Answering Brief in this matter but informed the Court that it chose to rest on the merits of the decision below. Appellee Oscar A. Fuller Co. also filed no Answering Brief.
[2] Abbasi v. Oscar Fuller Co., No. 20006099 at 2 (Del. U.I.A. Dec. 7, 2006).
[3] Claimant’s immediate supervisor, her floor manager, resigned a week or two before Oct. 7, 2006. Therefore, Kraznowski was Claimant’s interim immediate supervisor at this point in time.
[4] Hopkins Construction, Inc. v. UIAB, 1998 WL 960713 at *2 (Del.Super. Dec. 17, 1998).
[5] Id.
[6] Petty v. University of Delaware, 450 A.2d 392, 396 (Del. 1982).
[7] Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239
(Del.Super. 1979); Wilson v. Miller’s Furniture, Inc., 2000 WL 16111113 at *1 (Del.Super. Aug. 29, 2000).
[8] 19 Del. C. § 3314.

Disqualification for Benefits.
An individual shall be disqualified for benefits:
(1) For the week in which the individual left work voluntarily without good cause attributable to such work and for each week thereafter . . .

[9] Hopkins, supra, at *3.
[10] O’Neal’s Bus Service, Inc. v. Employment Sec. Commission, 269 A.2d 247, 249 (Del.Super. 1970); White v. Security Link, 658 A.2d 619
(Del.Super. 1994).
[11] Abassi v. Oscar A. Fuller, Co., No. 20006099 at 3 (Del. U.I.A.B. Jan. 17, 2007).

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