Opinion
DOCKET NO. A-3871-12T1
10-03-2014
DERRICK W. COOPER, Appellant, v. BOARD OF REVIEW and VENEZIA TRANSPORT HAULING, INC., Respondents.
Derrick W. Cooper, appellant, argued the cause pro se. Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief). Respondent Venezia Transport Hauling, Inc., has not filed a 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt.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 No. 396,839. Derrick W. Cooper, appellant, argued the cause pro se. Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief). Respondent Venezia Transport Hauling, Inc., has not filed a brief. PER CURIAM
Claimant Derrick W. Cooper appeals from a March 4, 2013 final decision of the Board of Review (Board) finding him disqualified for unemployment compensation benefits, pursuant to N.J.S.A. 43:21-5(a), and liable to refund benefits he received pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-10.2, because he voluntarily left his job without good cause attributable to that employment. Following oral argument before us, the Board corrected an error reducing the amount subject to refund in this matter from $5561 to $5363. We affirm as modified.
These facts are taken from the record, including the telephonic hearing conducted by an appeals examiner. While employed as a driver for Venezia Hauling Transport, Inc. (the employer), claimant sought and was granted a two-week leave to care for his family. He left work on December 6, 2011. At the conclusion of the two week leave, claimant called his driver manager who advised the employer "didn't have a truck available." Thereafter, claimant called "several times" seeking to return to work, but stated each time he was told there was no work available. Claimant insisted he kept in touch, to no avail, but could not remember the dates he called or the people he spoke to. Sometime thereafter, claimant obtained alternative employment.
Claimant's April 3, 2011 request for unemployment benefits was denied by the deputy claims examiner, who found him disqualified because he left work voluntarily without good cause attributable to the work. A request for refund of benefits, now totaling $5363, paid from April 9, 2011 through March 3, 2012, was issued.
Carmela Venezia testified on behalf of the employer. Ms. Venezia explained she is the only woman in human resources and stated after claimant took leave, the company lost contact with him. She initially spoke to claimant and granted his request for a two-week leave, but told him "he needed to keep in touch and get back to us." The employer held the truck available for four to six weeks, but never heard from claimant. Ms. Venezia also understood dispatch attempted to call claimant to advise him a truck was available, but they "never got through to him at all." No notes were recorded in the employer's computer system reflecting claimant called and "[dispatch c]ould not make any contact with him [sic]." Ms. Venezia asserted December and January are "[v]ery, very busy," and there is "[n]o such thing as, there not being any work in propane in December and January." She maintained claimant left voluntarily. The employer issued an official termination date of January 26, 2012, citing job abandonment. On March 26, 2012, claimant wrote to the employer thanking it for the opportunities he had received, resigning his position, and requesting verification of his last day of work. Venezia spoke to claimant on March 27, 2012, responding to his request.
Assessing credibility, the appeals examiner rejected claimant's assertions he contacted the employer in an effort to return to work. Rather, the employer's testimony was found "more credible than the claimant's as [it] clearly stated that it was the [company's] busiest time of year and [it] had work available for him." The appeals examiner concluded claimant initiated the severing of employment when he failed to return to work following his approved leave of absence.
The appeals examiner concluded claimant left voluntarily for reasons not attributable to his employment and was, therefore, ineligible for benefits. Moreover, claimant was required to refund all benefits previously received. Claimant appealed to the Board of Review, which adopted the findings and affirmed the conclusions appeals tribunal. This appeal ensued.
Our review of decisions by administrative agencies is "severely limited," Mazza v. Bd. of Trs., 143 N.J. 22, 25 (2011), 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.'" (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) (internal quotation marks and citation 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) (internal quotation marks and citation omitted). As the Court more recently said, "it is not for us or the agency head to disturb that 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)).
Applying these principles, we conclude the Board's decisions denying claimant benefits and ordering a refund of benefits paid are supported by substantial, credible evidence in the record. The governing statute, 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 must show he left work for good cause attributable to the 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)).
Persons who leave work for personal reasons are not eligible for unemployment benefits. Brady, supra, 152 N.J. at 213. Rather,
the decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.
[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citations omitted).]
Here, claimant initially left work to care for his family. He was given a two-week leave. Thereafter, the appeals examiner determined he failed to contact his employer to resume his employment. Claimant's assertions to the contrary were rejected as not believable in light of the employer's proofs that work was available and a truck was held pending his return. Also, claimant sent a formal written resignation. Consequently, his failure to resume work was purely a personal choice for which the employer bears no responsibility. Thus, claimant is ineligible for unemployment benefits.
Finally, pending review of his request, claimant received unemployment benefits, for which it was later determined he was not entitled. Consequently, claimant is liable to refund $5363 in benefits paid pursuant to N.J.S.A. 43:21-16(d).
Full repayment of benefits is required from anyone "who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). Indeed, the recovery of monies improvidently paid to those found ineligible to receive benefits furthers the purpose of the unemployment compensation laws and "preserve[s] the Unemployment Trust Fund for the payment of benefits to those individuals entitled to receive them." Ibid. Moreover, "federal law requires that a state recover improperly paid unemployment compensation benefits[,]" id. at 675; see 42 U.S.C.A. § 503(a)(9), as does State regulations. N.J.A.C. 12:17-14.1. In fact, the only restriction the Legislature has placed on recoupment is that a refund must be sought "before four years have elapsed from the time the benefits in question were paid." N.J.S.A. 43:21-16(d)(1). Here, the request for a refund was timely and claimant never requested a waiver of repayment, as provided in N.J.A.C. 12:17-14.2.
In sum, the Board's dual decisions were rendered following a hearing which comported with due process. Malady v. Bd. of Review, 166 N.J. Super. 523, 528 (App. Div. 1979). Accordingly, its determinations are 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).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION