Opinion
DOCKET NO. A-0130-13T1
03-16-2015
REBECCA POLENBERG, Appellant, v. BOARD OF REVIEW and SICKLES MARKET, L.L.C., Respondents.
Rebecca Polenberg, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Sickles Market, L.L.C., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 420,983. Rebecca Polenberg, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Sickles Market, L.L.C., has not filed a brief. PER CURIAM
Rebecca Polenberg appeals from a final decision of the Board of Review, dated June 27, 2013, modifying a determination of an Appeal Tribunal. The Board, applying N.J.S.A. 43:21-5(a), determined that Polenberg left work voluntarily without good cause and was therefore disqualified for unemployment benefits beginning February 19, 2012, and required a refund totaling $6,520. Polenberg disputes the Board's determination that she left work voluntarily and claims that she was laid off.
We glean from the record that Polenberg was employed at Sickles Market, L.L.C., and was terminated effective February 19, 2012, when she failed to come to work for four consecutive days and did not call anyone at Sickles to advise of her absence.
Polenberg filed a claim for unemployment benefits in January 2012 and received $220 per week from February through September 15, 2012. In April 2013, a deputy director of the Division of Unemployment Insurance determined that Polenberg was disqualified for the benefits as she had left work voluntarily on February 20, 2012. Polenberg appealed the determination and a telephone hearing was held on May 8, 2013 before an Appeal Tribunal examiner.
Donna Chapski, the Controller at Sickles, testified that Polenberg was hired on November 9, 2010, and worked between sixteen to twenty hours per week in floral and plant sales. Polenberg was fired after she failed to appear for work on four consecutive days in February 2012. Natal Siclare, the manager at Sickles, testified that he attempted to call Polenberg three times when she failed to appear for work and left two messages on her phone.
In her brief, Polenberg claims that her hours fluctuated between seventeen and forty-two hours per week with six hours of overtime.
Polenberg testified that on February 19, 2012, Siclare told her that she "was laid off for the season because [her job] was a seasonal position . . . [and] they weren't gonna need [her] until they got busy again" around Mother's Day in May. She denied receiving any messages from Siclare and claims there were no missed calls on her phone. Polenberg explained that in early 2012, her hours were cut back to two or three days per week and she applied for partial unemployment on January 8, 2012. Polenberg claimed her job was seasonal but conceded that she had not been laid off before. She testified that in early 2012, she asked to be laid off because she "wanted to have a little bit of the time off."
Chapski testified that although Polenberg's hours were initially reduced in January 2012, she was asked to work additional hours to fill in for another employee, Arlene, who was having surgery. Polenberg admitted that she had taken over Arlene's work but claimed she was not expressly asked to increase her hours or take on more responsibility. Chapski further testified that Sickles usually lays off three or four employees in January and February, but in March they "bring everyone back." She explained that in April and May they are "crazy" busy and "would never be laying someone off in the end of February beginning of March." Chapski described Polenberg's job as a "year round position."
Siclare denied ever telling Polenberg that she was laid off. To the contrary, in late January early February 2012, Siclare denied Polenberg's request to be laid off, telling her that it would not be possible as she was the only employee in her department.
In a decision dated May 15, 2013, the Tribunal determined that Polenberg stopped reporting for work after February 19, 2012; she was scheduled but failed to report to work on February 24, 25, 26, and March 2, 2012; she was not discharged or laid off; and continuing work was available to her. The examiner concluded that Polenberg's
failure to report to work . . . is evidence of her intent to [sever] the employer/employee relationship and as such her separation is deemed a voluntary quit. As she has not established her reason for leaving the employment was for good cause
attributable to the work, she is disqualified for benefits from 02/12/2012 under N.J.S.A. 43:21-5(a).
The examiner determined that Polenberg was required to refund $6,520 in benefits she was overpaid.
Polenberg appealed to the Board of Review and, in a decision dated June 27, 2013, the Board adopted the facts found by the Appeal Tribunal, with the exception of finding that Polenberg was disqualified for benefits as of February 19, 2012, not February 12, 2012 as determined by the Tribunal. This did not change the amount of overpayment, which remained at $6,520.
On appeal, Polenberg maintains that she was laid off from her job, which constitutes good cause attributable to the work and she should not have been disqualified for benefits.
The scope of our review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). When we "'review[] the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We must "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982).
Polenberg's testimony that she was laid off was flatly contradicted by two representatives of Sickles, Chapski and Siclare. Siclare denied ever telling Polenberg she was laid off and testified as to his attempts to contact her when she failed to appear for work on February 24, 2012. Chapski conceded that January and February were slow periods at Sickles, but claimed that they would never lay anyone off in late February, because business picked up as spring approached. Moreover, Polenberg admitted that she asked to be laid off and her request was denied. She also conceded that an employee in her department left for medical reasons and she took over much of that workload.
The Tribunal and the Board made credibility determinations and accepted the testimony of the employer witnesses over Polenberg's account. We are obligated to accept the Board's findings if they are supported by sufficient credible evidence. Ibid. Polenberg has given us no persuasive argument that the Board's findings, based largely on its credibility evaluations, were beyond the pale of acceptability referred to in Self, i.e., lacking sufficient evidentiary support. We are satisfied that the findings made and conclusions reached by the Board are supported by substantial credible evidence in the record and, therefore, command our deference.
The Board also correctly ordered Polenberg to repay the benefits she improperly received. N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by any person who was not actually entitled to those benefits. The obligation to repay is unaffected by the alleged good faith of the claimant. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997); see also Fischer v. Bd. of Review, 12 3 N.J. Super. 263, 266 (App. Div. 1973).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION