Opinion
DOCKET NO. A-3292-13T3
11-06-2015
CAROL D. FAUST, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and CUSTOM BENEFIT PROGRAMS, INC., Respondent.
Carol D. Faust, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 424,052. Carol D. Faust, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). PER CURIAM
Appellant Carol D. Faust appeals the final decision of respondent Board of Review (Board) of the New Jersey Department of Labor and Workforce Development affirming her ineligibility for unemployment benefits and requiring her to refund benefits received. We affirm.
I
Faust worked full-time for Custom Benefit Programs, Inc. as a benefits counselor from 2004 until March 31, 2012, when she began working there on a part-time, as-needed basis. Because of the reduction in her hours, Faust sought and obtained unemployment benefits totaling $16,416 from April 7, 2012 to January 19, 2013.
On April 15, 2013, a deputy for the director of the Division of Unemployment Insurance (Division) mailed Faust a Notice of Determination advising she was ineligible for all of the benefits she had received because her claim was "not based on part-time work, [and thus] your restriction to part-time work makes you unavailable for work. Benefits are payable only for those periods that you are available for full-time work. Therefore, you are ineligible for benefits." In a separate notice mailed on the same date, the director for the division ordered Faust to repay the $16,416 pursuant to N.J.S.A. 43:21-16(d).
The deputy also stated in the Notice for Determination that Faust was ineligible for benefits on the ground she had reduced her hours when she turned sixty-five years of age. Respondent acknowledges the basis for such statement is not clear but argues this reason for eliminating benefits is irrelevant because this age-related determination was not final. --------
Faust appealed the deputy's and the director's determinations and, on June 3, 2013, participated in a hearing before the Appeal Tribunal. Faust testified her hours were reduced on March 31, 2012 when she became an on-call, as needed employee. Although initially she testified the decision to reduce her hours was made by both her and the employer, upon further probing by the appeals examiner, Faust admitted that it was she and not the employer who initiated a discussion about changing her hours with them and that she alone decided to reduce her hours. Faust explained to the examiner she wanted to work as a "temporary call in," meaning she wanted to work when the employer needed her, an arrangement to which she claimed the employer was not adverse. When asked why she preferred such an arrangement, she replied, "You know, I can't even tell you what the reason was. Honest to God I can't."
On June 5, 2013, the tribunal affirmed the deputy's and director's April 15, 2013 determinations. The tribunal found Faust ineligible for benefits under N.J.S.A. 43:21-4(c)(1) and N.J.A.C. 12:17-12.7(a) and (b) because she chose to reduce her hours when she was available for full-time employment and, thus, could not use unemployment benefits to subsidize a reduction in income.
Faust appealed the tribunal's decision. On September 23, 2013, the Board determined there was a need for additional testimony from the claimant about her availability and ability to work and the extent to which she had searched for employment. In addition, the Board wanted testimony from the employer and additional testimony from Faust concerning the reason she reduced her hours.
Contrary to the testimony she gave at the first hearing, at the subsequent hearing Faust testified she did not take the initiative to approach the employer and seek a reduction in her hours. Rather, she claimed representatives from the employer's human resources department advised all of the employees that the employer did not know if it could maintain having full-time employees but, to avoid being laid-off, an employee could transition to "temporary call in." Faust contends she chose to become a temporary employee at that time. When pressed about whether she could have continued as a full-time employee, she responded that it was "unclear" but then asserted she could not have done so.
No witnesses testified on behalf of the employer. In support of her position that she was forced to reduce her hours, Faust submitted a letter dated April 19, 2013 from a representative of the employer's human resources department. However, the letter merely states Faust was working on an as needed basis and that, due to the nature of her position and the business, work may not be available. The letter did not provide any information about Faust's employment from April 2012 to January 2013, the period she received benefits.
On October 29, 2013, the Appeal Tribunal determined Faust was ineligible for benefits pursuant to N.J.S.A. 43:21-4(c)(1) and N.J.A.C. 12:17-2.1, and obligated to refund the $16,416 pursuant to N.J.S.A. 43:21-12(d) and N.J.A.C. 12:17-14.2. Specifically, the tribunal found Faust had initiated a change in her hours after the employer informed its employees it could not guarantee full-time employment. However, the tribunal also determined the claimant could have continued working as a full time employee but chose not to do so. The tribunal concluded:
The claimant's week of partial unemployment was not due to lack of work as she did not work all available hours. Since the claimant did not work all available scheduled hours during the week from 04/01/12 through 01/19/13 [she] is considered to be unavailable for work during this week.On February 21, 2014, the Board affirmed the Appeal Tribunal.
On appeal, appellant essentially contends, among other things, that the Board's decision was not supported by the record. We disagree, and also find appellant's remaining arguments lack merit. Consequently we affirm.
II
The decision of an administrative agency carries with it the presumption of reasonableness. N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012) (citing N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008)). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, 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 v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).
"If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Brady, supra, 152 N.J. at 210. Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009). Finally, claimants in unemployment compensation matters bear the burden of establishing their right to unemployment benefits. Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964)).
Here, the Board affirmed the Appeal Tribunal's finding that Faust was ineligible for benefits pursuant to N.J.S.A. 43:21-4(c)(1). This provision provides that
[a]n unemployed individual shall be eligible to receive benefits with respect to any week eligible only if:Thus, in order to be eligible for benefits, a claimant must be "willing, able and ready to accept suitable work which he does not have good cause to refuse." Vasquez v. Bd. of Review, 127 N.J. Super. 431, 434 (App. Div. 1974). Moreover, it is settled that if a claimant worked full-time before losing his job and thereafter chooses to limit his availability to part-time work, he is not available for work and is ineligible for benefits. Edmundson v. Bd. of Review, Div. of Emp't Sec., 71 N.J. Super. 127, 134 (App. Div. 1961).
. . .
(c)(1) The individual is able to work, and is available for work, and has demonstrated to be actively seeking work . . . .
Here, the Appeal Tribunal clearly did not credit Faust's testimony that her full-time position was going to be immediately eliminated, and there is no evidence that position was discontinued. Faust may have had many more months, if not longer, to work in that position. By foregoing a viable, full-time job for a part-time one, she exhibited an unwillingness to continue in a position she was able to perform, making her unavailable for work and ineligible to receive unemployment benefits. See Vasquez, supra, 127 N.J. Super. at 434. Further, she limited her availability to a part-time position after holding a full-time job, which also made her ineligible for benefits. Edmundson, supra, 71 N.J. Super. at 134.
We discern no basis to disturb the Board's decision. After careful consideration of appellant's contentions and a thorough review of the record on appeal, we are satisfied there is sufficient credible evidence to support the Board's determination. Appellant's remaining arguments are without sufficient merit to require discussion in a written opinion, Rule 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION