Opinion
DOCKET NO. A-0117-13T2 DOCKET NO. A-0118-13T2
08-27-2015
KELLY K. CARLINO, Appellant, v. BOARD OF REVIEW, and H. & R. HEALTHCARE, L.P., Respondents.
Kelly Carlino, 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).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from the Board of Review, Department of Labor, Docket Nos. 401,853 and 421,461. Kelly Carlino, 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). PER CURIAM
Claimant Kelly K. Carlino appeals from two June 21, 2013 final decisions of the Board of Review (Board); the first (A-0117-13) finding her disqualified for unemployment compensation benefits, pursuant to N.J.S.A. 43:21-5(a), because she voluntarily left her job without good cause attributable to that employment; and, the second (A-0118-13) from the Board's decision affirming the Appeal Tribunal's dismissal of a separate appeal in which she challenged a determination she was not eligible for benefits because she did not meet reporting requirements.
The Appeal Tribunal determined that in light of its decision regarding Carlino voluntarily leaving work, the second appeal was moot. We consolidated the two matters, but we do not address the second appeal in light of Carlino not briefing the issue raised and our ultimate decision as to the first appeal. We therefore affirm the dismissal of the second appeal as being moot. --------
On appeal, Carlino argues numerous points, all based on her factual position that she did not quit her job and her legal argument that her need to extend her family leave for a short time did not justify her termination by her employer. We have considered her arguments in light of our review of the record and applicable legal principles. We affirm.
We discern the facts from the record of the telephonic hearing conducted by an appeals examiner on May 6, 2013. Carlino filed her claim for unemployment benefits on August 19, 2012. Previously she was employed by defendant H & R Healthcare, L.P.. (HR) in their quality assurance department. She began her employment in June 2010, and ceased reporting to work on May 18, 2012, when she went out on family leave. According to Carlino, she was terminated from her employment while she was out on leave and due to return to work on August 13, 2012. She did not return to work because her husband, who "was supposed to be taking care of [her] child, . . . was stuck in South Carolina" caring for an "uncle [who was] pretty much like a dad" to her husband. According to Carlino, initially, she, her husband and daughter were in South Carolina together but she returned home with her daughter, whom she could not leave with her husband because he was spending his days in the hospital with his uncle.
When Carlino realized her husband was not returning in time for her to go back to work, she called HR and advised its vice president, Lorinda White, of the problem. After their conversation, Carlino believed "[e]verything was fine" as she understood HR granted her the "few days [she] requested." However, Carlino actually never specified how many additional days she needed to be out because she did not know at that moment whether her husband would be retuning or "if [she] need[ed] to find somebody right away" to take care of her child. Nevertheless, she only asked for "a few days[,] not a few weeks[,] not a few months[, and] not 60 days."
According to White, when Carlino called her, White told her that she thought Carlino's family situation was "very sad," but Carlino "had two more days and she needed to find childcare [and t]hat she had already exhausted every day off and above." As a result, White "absolutely" did not approve an extension of Carlino's leave.
When Carlino did not report for work on August 13, 2012, White called her and expressed surprise Carlino had not returned to work that day. According to Carlino, White told her that because she "couldn't come in [Carlino] no longer work[ed] there." White told Carlino she was "sorry but she [could not] grant [Carlino] any more time" and that "they were letting [Carlino] go. But that [White] was writing down that [Carlino] just didn't return to work and that [she] had quit." White explained the reason why she assumed Carlino quit her job. She stated that during their August 13 phone call she
question[ed] her how long would it take for [her] to find somebody to watch [her] baby [and told her] that you have to give me a timeline. This is a place of employment. There are people that work here[.] [W]hat is the timeline here[?] We're taking two days three days five days. And she did not give me an answer and she told me that she had nobody to watch the baby. Which ultimately then if [she had] nobody to watch [the] baby and [she] cannot return to work then to me [she] quit.White further explained that she "was open to try to determine when [Carlino] would be able to return back to work" but it was "very opened ended" because Carlino "had no idea . . . when she [would] have childcare [or] when she would be able to return to work."
After not returning to work on August 13, 2012, Carlino filed a claim for unemployment benefits. In response, she received a Notice of Determination issued by a deputy director for the Department of Labor, denying her claim. The notice stated she was disqualified for benefits because she left work voluntarily due to her lack of childcare. Carlino appealed and her claim was considered by the Appeal Tribunal at the May 6 hearing. After the hearing, the appeals examiner issued a written decision, finding White's version of the events to be more credible than Carlino's, and affirming the deputy director's determination based upon his understanding of the department's regulation, N.J.A.C. 12:17-12.3, which governs granting or extending leaves of absence. As a result, the appeals examiner found that Carlino left work voluntary for reasons not attributable to the work and, therefore, was disqualified for benefits in accordance with N.J.S.A. 43:21-5(a). Carlino appealed the Appeal Tribunal's decision to the Board, which affirmed. This appeal followed.
Our review of decisions by administrative agencies is limited with claimants carrying a substantial burden of persuasion. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Id. at 194 (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "[I]f substantial evidence supports the agency's decision, a court may not substitute its own judgment for that of the agency's even though the court might have reached a different result . . . ." In re Carter, 191 N.J. 474, 483 (2006) (citation and internal quotation marks omitted).
In considering the evidence, "the reviewing court should give due regard to the opportunity of the one who heard the witnesses to judge [] their credibility." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (citation and internal quotation marks omitted). "It is not for us or the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). However, "we are 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
N.J.S.A. 43:21-5(a), provides that an individual is disqualified for unemployment compensation benefits where that "individual has left work voluntarily without good cause attributable to such work . . . ." In order to avoid disqualification, the claimant has the burden of establishing that she left work for good cause related to work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "Good cause means 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,' and the reasons for terminating employment 'must meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 53-54 (App. Div. 1964)). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citation and internal quotation marks omitted). An employee's "decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. Moreover, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (citation omitted). Thus, an employee who quits a job without a sufficient work-related reason is disqualified from benefits under N.J.S.A. 43:21-5(a).
An employee who leaves work for a good, but personal reason is also subject to disqualification. See Brady, supra, 152 N.J. at 213; Pagan v. Bd. of Review, 296 N.J. Super. 539, 542 (App. Div.), certif. denied, 150 N.J. 24 (1997). Childcare issues are among the personal reasons that do not constitute good cause. Espina v. Bd. of Review, 402 N.J. Super. 87, 93 (App. Div. 2008) (citing N.J.A.C. 12:17-9.1(e)).
A failure to report to work at the conclusion of a leave of absence is considered a voluntary termination not attributable to the work if it is based on a lack of childcare, N.J.A.C. 12:17-9.1(e)(2) ("An individual's separation from employment shall be reviewed as a voluntarily leaving work issue where the separation was for . . . [c]are of children or other relatives"); see also Espina, supra, 402 N.J. Super. at 93.
Also, a voluntary termination occurs if an employee does not return to work after an approved leave as stated in N.J.A.C. 12:17-12.3. That regulation provides, in pertinent part:
(a) A voluntary and mutually agreed upon leave of absence between an employer and
employee connotes a continuity of employment. An individual on an approved leave of absence is not considered unemployed under the Unemployment Compensation Law and any claim for benefits filed during this period shall be invalid except, if the leave of absence is granted in part due to disability or a projected disability of the individual, the validity of any claim filed under N.J.S.A. 43:21-4(f) shall not be effected by the leave of absence while the claimant is disabled from work.
(b) The failure of an employer to grant or extend a personal leave of absence for other than the individual's personal health reasons does not establish good cause attributable to such work for the individual to leave such employment provided the denial was not in violation of Federal or State Laws including the Federal Family Medical Leave Act, P.L. 103-3 and the New Jersey Family Leave Act, N.J.S.A. 34:11a-1 et seq. which would provide for such leave.
. . . .
(d) However, if an individual's request for a leave of absence is denied, and he or she takes the leave, any termination of employment shall be reviewed as a voluntary leaving of work issue unless the reason for the leave is related to the individual's personal health, or if the leave is covered by any Federal or State law, including the Federal Family Medical Leave Act, P.L. 103-3 and the New Jersey Family Leave Act, N.J.S.A. 34:11a-1 et seq. regulation or other policy, bargaining contract or contract of hire.
[N.J.A.C. 12:17-12.3 (emphasis added)]
Here, Carlino could not return to work after her approved leave because her husband was not available and she did not have enough time to make other arrangements for childcare. She could not, however, give her employer any firm indication when she could return to work and she never again reported for work. Consequently, her failure to resume work was purely a personal choice for which the employer bears no responsibility. Thus, Carlino is ineligible for unemployment benefits.
We are not persuaded otherwise by Carlino's reliance on our decision in Espina. In that case, under similar circumstances, we held that the claimant was entitled to benefits pursuant to N.J.A.C. 12:17-9.11(b), because "an employee cannot be deemed to have abandoned her employment by failing to return to work until the expiration of five consecutive days from the last day of an approved leave of absence." Espina, supra, 402 N.J. Super. at 89. Thus, we disagreed with the Board that a claimant was disqualified for unemployment benefits as a "voluntary quit" under N.J.S.A. 43:21-5(a), because her employer terminated her on the day she was ordered to return to work. Id. at 91-92. However, the claimant in Espina, unlike Carlino, did not advise her employer she would not report on the date scheduled for her return and she, in fact, reported to work on the fifth day after her scheduled report date. Carlino, on the other hand, told White she would not be returning to work on August 13, 2012, and never again reported to work, and never told her employer when she could return.
We conclude the Board's determinations in this case was supported by substantial credible evidence in the record and we discern no basis for them to be disturbed. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (citation omitted).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION