Opinion
DOCKET NO. A-3572-13T2
04-05-2016
TARA GUADAGNO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and FALLON MEDICA, LLC, Respondents.
Richard C. Sciria, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). Respondent Fallon Medica, LLC has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Board of Review, Department of Labor, Docket No. 388,629. Richard C. Sciria, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). Respondent Fallon Medica, LLC has not filed a brief. PER CURIAM
Unemployment insurance claimant Tara Guadagno appeals from the Board of Review's February 25, 2014 decision affirming the Appeal Tribunal's determination that she voluntarily left work without good cause attributable to work. Guadagno also seeks review of the Director's refund order. Having considered Guadagno's arguments in light of the record and applicable principles of law, we affirm the final decision that she was not qualified for benefits, and remand to the Director to decide whether to waive recovery of the benefits pursuant to N.J.A.C. 12:17-14.2(a)(3).
I.
The substantive issue presented on appeal is a familiar one: whether an employee's decision to quit her job was justified by conditions at work. N.J.S.A. 43:21-5(a) prohibits a claimant from receiving unemployment benefits if she "left work voluntarily without good cause attributable to such work." This case is complicated, however, by the agency's extensive delay in adjudicating the employer's appeal.
Guadagno filed her unemployment claim on May 6, 2012, ten days after her last day working for Fallon Medica, LLC, a medical communications company. After an interview with a claims examiner, an agency Deputy Director determined on May 23, 2012 that she was eligible for benefits. The Deputy found that Guadagno left work voluntarily for good cause, because the scope of her job duties had changed drastically.
Fallon appealed the determination, although its appeal is not in the record. In October 2012, the Appeal Tribunal notified Guadagno that a telephone hearing on the appeal would take place on November 1, 2012. Fallon did not appear, and its appeal was dismissed without prejudice on November 15, 2012. The dismissal stated that the appeal could be reopened within 180 days if Fallon explained its nonappearance. See N.J.A.C. 1:12-14.4 (the Tribunal may reschedule a hearing within six months after a dismissal for good cause shown).
On November 20, 2012, Fallon's executive vice president for operations, Bina O'Brien, requested a new hearing. She explained that Superstorm Sandy, which occurred days before the hearing date, prevented Fallon from appearing at the hearing. Guadagno was not informed of Fallon's hearing request, and continued to receive benefits until June 1, 2013. Guadagno received notice on August 28, 2013 that the Tribunal would hold a hearing on Fallon's appeal on September 11, 2013.
At the hearing, Guadagno, O'Brien, and one of Guadagno's supervisors, Jennifer Hanlon, testified. O'Brien explained that pharmaceutical companies hire Fallon to educate physicians and other health care providers on diseases and products coming to market. Fallon does this through various projects. Some involve organizing meetings or presenting speakers. Other projects include development of monographs and something she called "slide decks." Fallon employed associate project directors like Guadagno, account managers who interrelated with clients, and editorial staff who prepared written materials, some of whom had advanced scientific degrees.
Guadagno testified that she was hired in 2005 as an associate project director, and her job primarily entailed planning meetings. However, she claimed that in the year before she resigned, the company's direction changed, as did the scope of her duties. In particular, she explained, she was now more responsible for developing content, and was asked to use computer software for which she was not adequately trained. She testified these changes "made it impossible . . . to continue working there." She also described an unpleasant working environment due to negative incidents with her manager, but admitted she did not believe she was at risk of discharge.
O'Brien disputed that Guadagno's job duties had changed significantly, but conceded that in general there was less meeting-related work. O'Brien testified that Guadagno's job was never limited to planning meetings, and included managing logistics for speaker programs, dinner meetings, and other presentations. O'Brien testified that Guadagno's job description never changed. O'Brien denied Guadagno's claim about the lack of training, and described efforts to train all staff in new software. O'Brien also testified that Guadagno's reviews were mostly positive and she received bonuses.
Hanlon agreed with O'Brien that the need for meeting planning fluctuated and that Fallon adequately trained employees in new software. She described efforts to assist Guadagno in handling her tasks, including providing a different direct supervisor when Guadagno and Hanlon developed a conflict.
The Tribunal reversed the Deputy's determination in a September 18, 2013 decision, finding Guadagno did not meet her burden of proving she left work for good cause attributable to her work. The Tribunal rejected her claim that there was a fundamental change in her job duties and found that she quit "because of personal dissatisfaction with her working conditions." The Tribunal found she was provided support and training and her job duties varied only in the project types assigned. The Tribunal concluded her working conditions had not become "so insurmountable of resolution" that it justified quitting. The Tribunal remanded to the Director to determine whether Guadagno should be liable for a refund of benefits she had received.
Guadagno timely appealed. In a February 25, 2014 decision, the Board affirmed the Tribunal's eligibility decision, and adopted the Tribunal's findings.
With respect to the refund, the Director determined on September 21, 2013 that Guadagno was liable to refund $34,216 in benefits she received through June 1, 2013. Guadagno timely appealed to the Tribunal but apparently did not seek a waiver from the Director. A hearing was scheduled for December 20, 2013, but Guadagno failed to appear "because of a scheduling conflict." The Tribunal dismissed the appeal on December 26, 2013, stating the appeal could be reopened upon Guadagno's request within 180 days. There is no evidence in the record that Guadagno asked the Tribunal to reopen.
This appeal followed. Guadagno presents the following issues for our consideration:
POINT I
THE BOARD OF REVIEW DECISION SHOULD BE REVERSED SINCE THE RESPONDENT EMPLOYER'S APPEAL FROM THE APPEAL TRIBUNAL TO THE BOARD OF REVIEW WAS UNTIMELY.
POINT II
THE BOARD OF REVIEW ERRED IN DISQUALIFYING THE APPELLANT FOR UNEMPLOYMENT BENEFITS UNDER N.J.S.A. 43:21-5(a) SINCE THE APPELLANT LEAVING HER EMPLOYMENT CONSTITUTES GOOD CAUSE ATTRIBUTABLE TO THE WORK.
POINT III
THE APPELLANT SHOULD NOT, AS A MATTER OF PUBLIC POLICY, BE REQUIRED TO PROVIDE A
REFUND OF UNEMPLOYMENT BENEFITS WHEN THE APPELLANT RIGHTFULLY AND LEGALLY RECEIVED UNEMPLOYMENT BENEFITS FROM THE STATE OF NEW JERSEY FOR OVER ONE YEAR.
II.
We ordinarily defer to an agency's decision unless it is arbitrary, capricious, or unreasonable or is unsupported by substantial credible evidence. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In reviewing fact-findings, "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." Ibid. (internal quotation marks and citations omitted). On the other hand, "[c]ourts are not to act simply as a rubber-stamp of an agency's decision" that is not supported by substantial record evidence. Philadelphia Newspapers, Inc. v. Bd. of Review, 397 N.J. Super. 309, 318 (App. Div. 2007), certif. denied, 195 N.J. 420 (2008). While some deference is owed to the agency's interpretation of statutes and regulations it is responsible for implementing, we are "in no way bound by" the agency's interpretation of the law or legal conclusions. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (internal quotation marks and citations omitted).
A.
A person is generally disqualified from receiving unemployment benefits if he or she "has left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). The disqualification lasts until "the individual becomes reemployed and works eight weeks in employment . . . and has earned in employment at least ten times the individual's weekly benefit rate . . . ." Ibid.
To avoid disqualification, the claimant has the burden to establish she left work for good cause related to work. Brady, supra, 152 N.J. at 218. "Good cause" means "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Id. at 214 (internal quotation marks and citations omitted). A court must consider what a person with "ordinary common sense and prudence" would do. Ibid. This inquiry requires a "fact-sensitive analysis." Utley, supra, 194 N.J. at 550.
"Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health" is not good cause. Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotation marks and citation omitted). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. An employee who leaves work for personal reasons, even if compelling, has not established "good cause." See Self v. Bd. of Review, 91 N.J. 453, 460 (1982).
The record supports the Board's finding that Guadagno voluntarily quit without good cause related to her work. Guadagno's assertion that there was a fundamental change in her duties was supported only by vague generalizations and was rebutted by O'Brien's and Hanlon's testimony, which the Tribunal credited. Importantly, Guadagno offered no documentary proof demonstrating a difference in job duties between the beginning and end of her employment. Further, the undisputed testimony showed Guadagno received generally positive reviews, was not on the brink of discharge, and was assigned a different supervisor when a personality conflict arose between her and Hanlon. Applying our deferential standard of review, we affirm the finding that Guadagno did not leave for good cause attributable to the work.
B.
We turn to Guadagno's argument that the eligibility decision should be reversed because Fallon did not seek to reopen the Tribunal's hearing within 180 days, or, alternatively, because Fallon's hearing request was ineffective since it was not served on Guadagno.
The merits of her argument require only brief comment. The agency is empowered to reopen an appeal if a request is made within six months of the dismissal:
If an appeal tribunal issued an order of dismissal for nonappearance of the appellant, the chief appeals examiner shall, upon application made by such appellant, within six months after the making of such order of dismissal, and for good cause shown, set aside the order of dismissal and shall reschedule such appeal for hearing in the usual manner. An application to reopen an appeal made more than six months after the making of such order of dismissal may be granted at the discretion of the chief appeals examiner.There is no reasonable debate that Superstorm Sandy provided good cause for Fallon's nonappearance. And while Guadagno did not receive notice of the reopening until August 28, 2013, Fallon did promptly request a reopening of the hearing. There is no requirement in the statute or regulations that a party requesting a reopening serve its request on the opposing party. The regulations require only that, once a hearing is scheduled, the agency provide notice to the claimant and to other interested parties. N.J.A.C. 12:20-3.1(f); N.J.A.C. 1:12-9.1.
[N. J.A.C. 1:12-14.4(b).]
This notice policy favors employees, who are often self-represented and may overlook a requirement that they serve a request on the opponent in order to be effective. --------
Nevertheless, it is important to note that the Board omitted Fallon's November 20, 2012 letter from its statement of items comprising the record (SICR), and released the letter for the first time in its respondent's appendix. This undermined the purpose of Rule 2:5-4(b), which is to "ensure that the parties and the appellate court have a complete understanding of the record at the administrative level." Jeffrey S. Mandel, N.J. Appellate Practice § 22:1-2(e) (2016). The Board's omission also caused Guadagno to make an argument based on the assumption that the document did not exist.
When an agency learns a document was omitted from its SICR, the proper practice is to file a motion to amend the SICR. At that point the court may, if appropriate, allow the appellant to file a revised brief. We need not address whether the late release of a document may be so prejudicial as to bar the agency's reliance on it, as Guadagno addressed the impact of the November 20, 2012 letter in her reply brief after the letter was disclosed. But we note our disapproval of the Board's reliance on a document that it omitted from its SICR.
To the extent not addressed, Guadagno's remaining arguments challenging her disqualification lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
C.
Finally, we address Guadagno's challenge of the Director's refund request. The Division is entitled to a refund when an employee receives benefits to which she was not entitled, regardless of whether she was aware of her non-eligibility, expended benefits in reliance on the initial determination, or would face difficulty repaying the benefits. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674-76 (App. Div. 1997); N.J.S.A. 43:21-16(d)(1). Nonetheless, the agency is empowered to waive the refund demand when recovery of benefits "would be patently contrary to the principles of equity." N.J.A.C. 12:17-14.2(a)(3). In making this determination, the Division "shall consider whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant." N.J.A.C. 2:17-14.2(d).
While Guadagno makes a compelling argument that she reasonably relied on the initial eligibility finding and that the agency unreasonably delayed scheduling the reopened hearing, it is premature for us to decide the issue. The question of a refund waiver "should be decided in the first instance, by the Division, applying its expertise[,]" so that we "have the benefit of a full record." Mullarney v. Bd. of Review, 343 N.J. Super. 401, 410 (App. Div. 2001). There is no waiver request in the record; rather, it appears Guadagno appealed the Director's refund request directly to the Tribunal, which was dismissed because of her nonappearance. We therefore remand to the Director to determine whether Guadagno is entitled to a waiver under N.J.A.C. 12:17-14.2(a)(3).
Affirmed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION