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03/31/95 RICHARDSON'S MARKET v. MICHELLE COVAIS

March 31, 1995

RICHARDSON'S MARKET, APPELLANT
v.
MICHELLE COVAIS, AND THE UNEMPLOYMENT INSURANCE APPEAL BOARD, APPELLEES



Upon Appeal from the Unemployment Insurance Appeal Board.

Judge William C. Carpenter, Jr.

The opinion of the court was delivered by: Carpenter

CARPENTER, J.

ORDER

1. Employer-below Richardson's Market appeals from a decision of the Unemployment Insurance Appeal Board in which the Board reversed the decision of the Appeals Referee, finding that appellee Michelle Covais "voluntarily quit her employment with good cause in connection with her work."

2. Ms. Covais was employed as a florist by Richardson's Market from September 1993 through January 22, 1994. She testified that she quit on January 22 after enduring approximately three months of sexual harassment from the business owner's son and greenhouse manager, Tyler Richardson. Ms. Covais testified regarding specific instances of harassment of both a verbal and physical nature. Ms. Covais further stated that she had attempted to discuss her concerns with Mr. David Richardson, the owner of the greenhouse, on several occasions throughout the months the harassment occurred. However, she was advised by David Richardson that he had given all managerial responsibility of the greenhouse to his son, Tyler, and she would have to work it out with him. She attempted to discuss her concerns with David Richardson on the day she quit but, after waiting for fifteen to twenty minutes, she finally left without being able to speak to him. The Board also considered testimony from Ms. Brenda Davis, the appellee's mother and delivery driver for Richardson's market, confirming that certain remarks were made to her daughter by Tyler Richardson.

3. Mr. David Richardson testified on behalf of the employer, stating that Ms. Covais had never addressed her concerns regarding harassment with him. He further stated that on the day she quit, he did not force her to wait outside for several minutes to speak to him, but upon going to speak to her after finishing a conversation with his daughter, he found Ms. Covais had already gone. The Board also considered the testimony of Ms. Lynsey Richardson, the owner's daughter and night manager of the greenhouse, who stated that Ms. Covais never mentioned any concerns regarding sexual harassment to her. Finally, the Board considered the testimony of Ms. Rosemary Smith, a clerk in the office, who stated that Ms. Covais had confided in her regarding problems of a personal nature, but never discussed any concerns regarding harassment.

4. In its decision the Board reached the following Conclusions:

(a) The testimony of the appellee and her witnesses were more credible than those who appeared on behalf of the appellant;

(b) The testimony it heard and the record of the evidence presented to the Appeals Referee established evidence of a hostile working environment; and,

(c) The appellee had satisfied her obligation to make a reasonable effort to inform her employer of her concerns and a good faith effort to resolve them before leaving her employment.

5. On appeal, the Superior Court's review is limited to determining whether the Board's decision was supported by substantial evidence, and whether the Board correctly applied the law to the facts before it. Attix v. Voshell, Del. Super., 579 A.2d 1125 (1989).

6. Appellant first argues that the Board failed to review the record below in making its determinations, and that failure constituted substantial error. Appellant argues that the Board's Chairman stated that the Board had only reviewed the decisions below, and further, the Board's unfamiliarity with certain facts contained in the record indicate that the transcript of the Referee's hearing was not reviewed. This Court finds, however, that the transcript of the hearing before the Board reveals that the Board was familiar with the entire record. The Chairman's failure to specifically state that the Board had read the transcript of the Referee's hearing as well as the decisions below does not necessarily indicate that the Board did not read the transcript. In fact, several times during the hearing, the Board indicated that it was familiar with the "record" when it refused to hear testimony that was already included in the record. Further, this Court will not hold that, merely because the Board asked for clarification of the identity of the alleged harasser and asked for clarification of another employee's position, that the Board did not review the record below. The Board is simply required to review the record, not memorize it, and this Court finds that a simple request for clarification is not evidence that the Board failed to review the record. Finally, appellant argues that the Board's decision did not compare consistencies and inconsistencies with the record below. However, there is no requirement that the Board specifically compare its findings to those of the Referee, or explain why the Referee's findings were unacceptable. Kowalski v. Unemployment Ins. Appeal Board, Del. Super., C.A. No. 88A-JL-3, Gebelein, J. (Jan. 22, 1990). The Board is merely required to review the record of the Referee's hearing and decision. Id. This Court has found that the record reflects that the Board reviewed the complete record below, and will not reverse the Board's decision on this ground.

7. Appellant next contends that the Board's decision that Ms. Covais had exhausted her administrative remedies is not supported by substantial evidence. Appellant argues that although Ms. Covais on one occasion reported Tyler Richardson's ridiculing language to David Richardson, she failed to report his more egregious physical conduct and allow sufficient time to correct the problem. However, Ms. Covais testified that she had spoken to David Richardson about his son's conduct at least five times during the months of November and December. Further, Ms. Covais stated that she waited to speak to David Richardson for at least fifteen minutes on the day she left. The Board found that these actions constituted sufficient efforts to meet her obligation to inform her employer of her concerns and resolve them before leaving. This Court finds that the Board's decision was supported by substantial evidence, and will not reverse it on appeal. Further, one has to question the wisdom of the appellant's argument that Ms. Covais should have continued to discuss her concerns, as David Richardson had made it clear that his son was managing the greenhouse. ...


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