Opinion
DOCKET NO. A-2280-12T1
09-23-2014
HONOREE M. GIBNEY, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and KELLY SERVICES, INC., Respondents.
Honoree M. Gibney, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). Respondent Kelly Services, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Board of Review, Department of Labor, Docket No. 369,139. Honoree M. Gibney, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). Respondent Kelly Services, Inc. has not filed a brief. PER CURIAM
Honoree M. Gibney appeals from the November 30, 2012 decision of the Board of Review (Board) in the Division of Unemployment and Disability Insurance, Department of Labor and Workforce Development affirming the decision of the Appeal Tribunal. The decision rests on her untimely appeal of the determination that she was disqualified for unemployment benefits based on her employment by Kelly Services, Inc. because "she left work voluntarily without good cause attributable to such work." Although her appeal was within time for the Board's determination that she was obligated to pay back the sum of $21,413, Gibney apparently did not view this decision as a separate, appealable issue from the disqualification decision, and did not list this second order on her notice of appeal to us. In the interest of justice and based on the unambiguous testimony of the employer's representative, we reverse and remand for a reduction of the amount Gibney must repay.
This sum represents benefits Gibney received from December 5, 2009 through November 20, 2010.
Our scope of review of an administrative agency action is limited and highly deferential. So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). In making this determination, a reviewing court must examine: "(1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether, in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med. Assistance & Health Servs., 4 32 N.J. Super. 273, 283-84 (2013) (citing In re Stallworth, 208 N.J. 182, 194 (2011 )).
We also review factual findings made by an administrative agency deferentially. On appeal, "the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (internal quotation marks omitted)). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
N.J.S.A. 43:21-5(a) provides that an individual who leaves work "voluntarily without good cause attributable to such work" will be disqualified from receiving unemployment benefits.
In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving workIn essence, in determining whether the employee voluntarily left work for work-related good cause, the employee must show that he or she did all that was "necessary and reasonable" to stay employed. Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (citation and internal quotation marks omitted). Clearly, such a test is fact sensitive. Utley v. Bd. of Review, 194 N.J. 534, 550 (2008).
voluntarily. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.
[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citations and internal quotation marks omitted).]
Gibney was notified by way of a Notice of Determination dated November 9, 2011, that she was disqualified for benefits because she "left work voluntarily on 12/04/09." The notice further explained that:
Your assignment was completed 12/9/09. You failed to call the employer for reassignment as instructed at the time of hire. Therefore, you are considered to having (sic) voluntarily quit without good cause. You are disqualified for benefits.
Gibney said she did not timely appeal this decision because she was unaware of its consequences. On January 31, 2012, she was sent a Request for Refund of $20,976, which was followed that same date by a revised request for $21,413. She timely appealed the Request for Refund, however she argued only that the Notice of Determination was incorrect, interpreting the language regarding her right to appeal as applying to the underlying decision concerning ineligibility. The timeliness of the appeal and the reasons for her ineligibility were covered in the subsequent telephonic hearing. Both Gibney and Salvatore Petronella, the branch manager of Kelly Services, testified. Gibney testified that she did not initially appeal the determination that she was not eligible for benefits because she neglected to read the notice carefully and did not realize she would have to repay the benefits.
Had Gibney read this notice in full she would have seen the warning on page two that states, "If you received unemployment insurance benefits for the period you are held disqualified for benefits, you are liable to repay all benefits paid for this period." The entire notice, including this sentence, is capitalized.
This notice reads, in pertinent part:
Appeal Procedure: This is a request for refund and repayment of unemployment benefits previously paid to you. If you disagree with this decision, you must file a written appeal within seven (7) calendar days after delivery or within ten (10) calendar days after the mailing of this notice. . . .
Gibney also testified that she worked with Kelly Services for thirteen years. She had been placed by Kelly Services at a full-time job working for Liz Claiborne as a merchandise coordinator for the website. She began working in that job in March 2007 and worked for Liz Claiborne until the entire department was laid off in October 2009. She was aware that she was obligated to contact Kelly Services once a week to find further employment, but stopped doing so when it became clear to her that no jobs were forthcoming. Petronella testified that the last time Gibney called in to Kelly Services was June 29, 2010. Gibney agreed that she stopped calling after the end of June, more than six months after she began receiving unemployment benefits on December 5, 2009.
Our standard of review does not allow us to substitute our judgment for that of an administrative agency. If we are "satisfied after [our] review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm even if [we] feel[] that [we] would have reached a different result [ourselves]." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). It is only when our review of the record leads us to conclude that the agency's finding is clearly erroneous that the decision is not entitled to judicial deference. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995) (citing P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 530 (1995)).
Petronella's testimony clearly established that, contrary to the statement in the Notice of Determination denying benefits, Gibney had indeed "call[ed] the employer for reassignment as instructed at the time of hire" for more than six months after she began receiving benefits.
The refund of all benefits received by Gibney was sought in accordance with N.J.S.A. 43:21-16(d)(1), which provides in pertinent part:
When it is determined . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter . . . while any conditions for the receipt of benefits imposed by this chapter . . . were not fulfilled in his case, or while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person, unless the director (with the concurrence of the controller) directs otherwise by regulation, shall be liable to repay those benefits in full.The statute "requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). The employer's own representative established that Gibney was in fact entitled to benefits for more than six months.
The Board argues persuasively that a timely appeal of a Request for Refund notice should not substitute for an untimely appeal of a Notice of Determination. Unquestionably, Gibney's candid admission of carelessness does not fit within the reasons that establish "good cause" for a late appeal of a determination of ineligibility. N.J.A.C. 12:20-4.1(h). The ten-day statutory time for appeal, N.J.S.A. 43:21-6(b)(1), has been held to be jurisdictional. Lowden v Board of Review, 78 N.J. Super. 467, 471 (App. Div. 1963). It is clear to us, however, that Gibney was entitled to unemployment benefits from December 5, 2009, until the week she failed to call Kelly Services, the week after her last call on June 29, 2010. In the unusual circumstances of this case, where the employer presented proof validating Gibney's appeal, the interest of justice requires that she not be required to repay those benefits she rightfully received. See Hopkins v Board of Review, 249 N.J. Super. 84, 88-90 (App. Div. 1991) (excusing a late filing as not to do so would lead to a "truly bizarre" and inequitable result).
Gibney received benefits for the weeks ending July 3, 2010 and July 10, 2010. Thus the record establishes that she was ineligible for benefits on July 10 and thereafter.
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Gibney may also pursue any remedies available to her under N.J.A.C. 12:17-14.2, allowing the Director to waive the recovery of benefits if the "principles of equity" so demand and "the terms of a reasonable repayment schedule would result in economic hardship to the claimant."
Reversed and remanded to the Board to reduce Gibney's repayment obligation to those benefits she received beginning July 10, 2010. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION