Opinion
DOCKET NO. A-5656-12T1
06-01-2015
ANGELA ZEBI, Appellant, v. BOARD OF REVIEW and PRECISION CUSTOM COATINGS, INC., Respondents.
Castronovo & McKinney, LLC, attorneys for appellant (Thomas A. McKinney, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). Respondent Precision Custom Coatings, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Gilson. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 363,975. Castronovo & McKinney, LLC, attorneys for appellant (Thomas A. McKinney, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). Respondent Precision Custom Coatings, Inc. has not filed a brief. PER CURIAM
Angela Zebi appeals from a final decision of the Board of Review ("Board") disqualifying her from unemployment benefits. We affirm.
In 2002, Zebi began working at Precision Custom Coatings ("Precision" or "employer") in accounts payable. On June 16, 2011, Zebi left her employment to have her second child. Zebi contends that she left on maternity leave intending to return to work following her leave. Precision, in contrast, maintains that Zebi announced that she was leaving permanently and Precision, therefore, hired a full-time new employee to replace Zebi.
On October 16, 2011, Zebi filed a claim for unemployment benefits. Initially, the Deputy of the Division of Unemployment and Temporary Disability Insurance ("Deputy") found Zebi eligible for benefits from October 17, 2011. On December 1, 2011, Precision appealed the Deputy's decision to the Appeal Tribunal. A telephonic hearing took place on April 20, 2012 and May 7, 2012. At the hearing, five witnesses testified from Precision and Zebi also testified.
The five witnesses who testified for Precision all testified that they had conversations with Zebi before she left in June 2011, and Zebi stated to each of the witnesses that she did not intend to return to work. For example, the Chief Financial Officer ("CFO") of Precision testified that he spoke to Zebi in March 2011, concerning her intention because he wanted to know if he needed to line up a temporary or permanent employee as her replacement. According to the CFO, Zebi told him that her parents were sick, she was unable to arrange other child care, and she would not be coming back to work. The CFO then hired a full-time person to replace Zebi.
The Manager of Human Resources/Payroll for Precision testified that she also spoke to Zebi before June 2011, and Zebi told her that Zebi would not come back to work because she had no child care and day care was too expensive. The Controller and Assistant Controller of Precision testified that they had similar conversations with Zebi, where Zebi told them that she was not coming back to work following the birth of her second child. Finally, the President of Precision testified that Zebi approached him several times before June 2011, and asked him to fire her so that she could collect unemployment. The President refused Zebi's request.
Zebi testified that she intended to go back to work at Precision after her disability and family leave concluded in late September 2011. She acknowledged that she never had a written confirmation of when she was to return to work at Precision. She also acknowledged that she never arranged a specific date when she would return to work at Precision. In response to the testimony from the Precision employees, Zebi testified that she could not recall the conversations and she believed that the Precision employees misconstrued her intention.
The Appeal Tribunal found that the Precision employees provided "substantially more persuasive and credible testimony that [Zebi] resigned, with multiple witnesses testifying that [Zebi] had stated she was not returning to work due to a lack of child care." The Appeal Tribunal also found that Zebi "voluntarily quit for a compelling, but personal reason, a lack of child care." The Appeal Tribunal then concluded that Zebi left work voluntarily, without good cause attributed to her work, and she was disqualified from receiving unemployment benefits. Finally, the Appeal Tribunal remanded to the Director of the Division of Unemployment and Temporary Disability ("Director") the issue of whether Zebi would have to refund any benefits she had already received.
The Board affirmed the Appeal Tribunal's decision on September 6, 2012.
Thereafter, the Director determined that Zebi was liable to refund $11,676.00 in unemployment benefits she improperly received for the period of time between the weeks of October 22, 2011 and April 28, 2012. The Appeal Tribunal affirmed that refund award in a decision mailed on June 14, 2013. Zebi did not administratively appeal that refund decision to the Board.
On this appeal, Zebi makes two arguments. First, she contends that the Board and Appeal Tribunal ignored plaintiff's testimony that she would return to work. Second, she argues that the matter should be remanded to the Director to make a determination regarding whether she should be granted a hardship waiver concerning repaying the unemployment benefits that she received.
This court exercises a limited role in reviewing agency decisions involving unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Frazier v. Bd. of Review, 439 N.J. Super. 130, 133 (App. Div. 2015). We defer to fact findings where supported by sufficient credible evidence. Brady, supra, 152 N.J. at 210. Moreover, due regard is given to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). We also afford considerable deference to an agency's interpretation of its governing statute and its own regulations. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (citing In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Appellate courts generally intervene only when the agency's action is arbitrary, capricious or unreasonable, or "clearly inconsistent with its statutory mission or with other State policy." Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). When a claimant challenges an agency's conclusions, the claimant carries a substantial burden of persuasion and the determination of the agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93 N.J. 384, 390-91 (1983).
An employee is disqualified for unemployment benefits if that person voluntarily leaves work "without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a). "'[G]ood cause attributable to such work' means a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.S.A. 12:17-9.1 (b). If an employee leaves "for personal reasons, however compelling, [s]he is disqualified under the statute." Utley, supra, 194 N.J. at 544. An employee who has left work voluntarily has the burden of proving that she or he is entitled to unemployment benefits. Brady, supra, 152 N.J. at 218.
Applying these principles, we find no basis to disturb the Board's decision that Zebi was disqualified for benefits. Zebi argues that the Board and the Appeal Tribunal ignored her testimony that she was planning to return to work after her leave ended. The record establishes that the Board and Appeal Tribunal considered Zebi's testimony, but found her testimony unpersuasive. During the hearing, the five Precision employees consistently testified that Zebi stated to them that she was leaving work permanently and would not return due to child care considerations. Relying on the facts and credibility findings of the Appeal Tribunal, the Board properly concluded that Zebi left her employment with Precision for personal reasons unrelated to her work at Precision. There is adequate, substantial and credible evidence to support the Board's determination.
On the issue of the refund of benefits, the Board points out that Zebi never administratively appealed the Appeal Tribunal's decision concerning her refund of benefits. The Board also represents that Zebi still has the right to apply for a hardship waiver directly to the Director. Thus, Zebi has yet to exhaust her administrative remedies and we will not address the refund or hardship waiver issues. See Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 386-87 (1979), cert. denied, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979) (explaining that the requirement to exhaust administrative remedies serves several purposes and is relaxed only in limited circumstances); see also N.J.A.C. 12:17-14(a) (setting forth the grounds for filing for a hardship waiver). Our determination is without prejudice to Zebi's right to apply to the Director for a hardship waiver of the refund of benefits.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION