Opinion
DOCKET NO. A-5941-11T1 DOCKET NO. A-2866-12T1
09-05-2014
LUIGI COPPOLA, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, AND CENTRAL JERSEY LANDSCAPING & LAWN, Respondents.
Luigi Coppola, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). Respondent Central Jersey Landscaping & Lawn Maintenance Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Accurso. On appeal from the Board of Review, Department of Labor, Docket Nos. 336,781 and 377,185. Luigi Coppola, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). Respondent Central Jersey Landscaping & Lawn Maintenance Inc. has not filed a brief. PER CURIAM
Appellant Luigi Coppola appeals two final administrative agency actions by the Board of Review (Board) in the Division of Unemployment and Disability Insurance (Division), Department of Labor and Workforce Development. In A-5941-11, he appeals the Board's decision that he was disqualified for unemployment benefits based on his employment by Central Jersey Landscaping & Lawn (Central Jersey) because he left work voluntarily. In A-2866-12, he appeals the Board's decision that he is responsible for the repayment of benefits he received prior to the decision that he was disqualified. We consolidate the appeals for the purposes of this opinion and affirm as to both.
I.
We discern the following facts and procedural history from the record on appeal.
Coppola was employed by Central Jersey in March 2000 as a mason and laborer. According to Craig Kendall, Central Jersey's president, Coppola's primary duties involved brick masonry. However, when that work became less available due to the economic downturn, Kendall also assigned Coppola to landscaping duties without a diminution in pay.
Kendall testified that, in early May 2011, he overheard Coppola speaking to another employee. Kendall maintains that Coppola said he was "tired of this work," which Kendall understood to refer to mulching and trimming. According to Coppola, he said: "I guess we don't do pavers anymore."
Kendall left his office and confronted Coppola. According to Coppola, Kendall yelled at him and used profanity, which Coppola asserted embarrassed him because it was done in front of other employees. He also testified that Kendall told him to leave, and that Coppola understood that to mean he had been terminated.
In contrast, Kendall testified he told Coppola that he had to go out and do the work, to which Coppola responded that he was tired of the work and did not want to do it. According to Kendall, he told Coppola that he could do the work or go home, and Coppola chose to go home. Kendall maintained that he did not terminate Coppola.
Kendall testified he tried to contact Coppola on his company cell phone and personal phone later that day, but was unsuccessful. Coppola did not appear for work the following day. Coppola initially testified that he had gone to work and entered the shop, but after Kendall stated that Coppola did not appear on the company's surveillance camera, he changed his testimony to say that he had just driven past the shop. Kendall testified that, on the basis of Coppola's failure to appear, he terminated his company cell phone and credit card.
Coppola went to the shop two days later to pick up his tools. Kendall testified that he explained to Coppola that there was very little brick work, and that he needed to do other types of work to maintain employment at Central Jersey. When Coppola went to get his tools, Kendall asked him to return his company keys and credit card. As Coppola was leaving, according to Kendall, he told Coppola that he could still work there, but Coppola just left. According to Coppola, he was not asked to return to work that day.
Coppola subsequently applied for unemployment benefits. On May 27, one of the Division's deputy directors mailed Coppola a notice that he had been temporarily disqualified for benefits because he failed to apply for or accept suitable work. Coppola appealed. The Appeal Tribunal held a telephone hearing on June 27, in which Central Jersey did not participate. In its July 1 decision, the Appeal Tribunal reversed the deputy director and found no disqualification.
Central Jersey appealed the July 1 decision to the Board, which remanded to the Appeal Tribunal for rehearing, having found that Central Jersey's failure to participate in the first hearing was excusable. Coppola and Kendall participated in the second hearing, which took place on February 14, 2012. The Tribunal issued its decision on February 24.
The Tribunal found Coppola to be less credible than Kendall, whose testimony it also characterized as more consistent than Coppola's. The Tribunal concluded (1) that Coppola was told on May 2, that "he could remain at the job and do the work assigned or go home," (2) that Coppola "left the job," (3) that when Coppola went to collect his tools on May 6, he was told "he could return to the job," and (4) that Coppola "refused and left." Based on those findings, the Tribunal concluded that Coppola had left the work voluntarily without good cause attributable to the work and was consequently disqualified from benefits pursuant to N.J.S.A. 43:21-5. Coppola appealed to the Board, which affirmed on June 21, 2012. The appeal in A-5941-11 followed.
In the interim, the Division's Director mailed a notice to Coppola on February 27, 2 012, seeking reimbursement of the $18, 960 he had received in benefits for which he had been determined to be ineligible. The notice relied on the provisions of N.J.S.A. 43:21-16(d). Coppola appealed and the Tribunal held a telephone hearing on September 22. In a decision dated September 24, it concluded that Coppola was obligated to repay the benefits he had received between May 7, 2011 and December 10, 2011, "unless the Director directs otherwise by regulation." Coppola appealed to the Board, which affirmed on January 3, 2013. The appeal in A-2866-12 followed.
II.
On appeal, Coppola argues that, because he was terminated by Central Jersey after Kendall misunderstood his statements to a fellow employee, cursed at him, and told him to leave, he should not have been found disqualified for benefits. He further argues that, because he was qualified for the benefits he received, he should not be required to repay them.
Our scope of review of an administrative agency action is limited and highly deferential. It is restricted to the following inquiries:
(1) whether the agency's decision offends the State or Federal Constitution;So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Id. at 210 (citing In re Warren, 117 N.J. 295, 296 (1989)).
(2) whether the agency's action violates express or implied legislative policies;
(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]
We also review factual findings made by an administrative agency deferentially. On appeal, "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. (emphasis added) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)) (internal quotation marks omitted). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
N.J.S.A. 43:21-5(a) provides that an individual who leaves work "voluntarily without good cause attributable to such work" will be disqualified from receiving unemployment benefits. While the statute does not define "good cause," it has been construed to require more than mere dissatisfaction with working conditions.
In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. 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. 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 isAdditionally, "good cause attributable to such work" has been tion as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). 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).
necessary and reasonable in order to remain employed.
[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citations and internal quotation marks omitted).]
In essence, in determining whether the employee voluntarily left work for work-related good cause, the employee must show that he or she did all that was "necessary and reasonable" to stay employed. Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (citation and internal quotation marks omitted). Clearly, such a test is fact sensitive. See Utley v. Bd. of Review, 194 N.J. 534, 550 (2008).
With respect to the Board's determination that Coppola was disqualified pursuant to N.J.S.A. 43:21-5(a) because he left employment without good cause attributable to the work, our standard of review requires us to defer to the determination made by the Board, which is not arbitrary or capricious, and does find ample support in the record. Brady, supra, 152 N.J. at 210-11. There was conflicting testimony concerning the events on May 2011. The Appeal Tribunal, which had the opportunity to hear the witnesses, concluded that Kendall was more credible, and that Coppola had not been fired but had quit. It further concluded that the exchange between Coppola and Kendall did not justify Coppola's decision to leave employment. In addition, the Tribunal found that Kendall offered Coppola the opportunity to remain employed, and that Coppola refused.
Our standard of review does not allow us to substitute our judgment for that of an administrative agency. If we are "satisfied after [our] review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm even if [we] feel[] that [we] would have reached a different result [ourselves]." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). It is only when our review of the record leads us to conclude that the agency's finding is clearly erroneous that the decision is not entitled to judicial deference. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 489-90 (1995) (quoting P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 530 (1995)).
The agency's findings support its determination that Coppola was not fired, but instead quit without good cause related to the work. In addition, Coppola declined an opportunity to remain employed, which he was required to do if possible. Heulitt, supra, 300 N.J. Super. at 414. Consequently, we affirm the Board's order affirming the determination of the Appeal Tribunal.
The refund of benefits received by Coppola was sought in accordance with N.J.S.A. 43:21-16(d), which provides in pertinent part:
When it is determined . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter . . . while any conditions for the receipt of benefits imposed by this chapter . . . were not fulfilled in his case, or while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person, unless the director (with the concurrence of the controller) directs otherwise by regulation, shall be liable to repay those benefits in full.The statute "requires the full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not entitled to those benefits." Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). Coppola therefore was properly held liable for repayment.
N.J.A.C. 12:17-14.2 provides that the Director may waive the recovery of benefits under limited circumstances.
(a) Upon request of the claimant or the claimant's representative, the Director may grant the claimant a full waiver of recovery of an overpayment of benefits only after the Director has determined that the claimant has not misrepresented or withheld any material fact in obtaining benefits and only under the following circumstances:
1. Where the claimant is deceased;
2. Where the claimant is disabled and no longer able to work; or
3. Where the recovery of the overpayment, as determined by the Director with the Controller's concurrence, would be patently contrary to the principles of equity.
(b) For purposes of determining under (a) above whether a claimant is prohibited from receiving a waiver of recovery of an overpayment of benefits because he or she misrepresented or withheld any material fact in obtaining benefits, either the willful or the negligent misrepresentation or withholding of any material fact shall, alone, constitute sufficient grounds for a determination by the Director that the claimant is not eligible to receive a waiver of recovery of an overpayment of benefits.
(c) For purposes of determining under (a)2 above whether a claimant is "disabled and no longer able to work", a claimant's current receipt of Social Security disability benefits may be deemed evidence of current permanent disability. The Director may also accept a diagnosis of permanent disability from the claimant's
physician. In addition, the Director has the discretion to require the claimant to submit to an impartial physical examination by a legally-licensed physician at the expense of the State.
(d) For purposes of determining under (a)3 above whether the recovery of the overpayment would be "patently contrary to the principles of equity," the Director and Controller shall consider whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant.
Coppola is still living, and has not alleged any disability. There is nothing in the record to suggest that he claimed an exemption or reduction under N.J.A.C. 12:17-14.2(a)(3). In addition, he is not entitled to the benefit of the two-determination rule, found in N.J.S.A. 43:21-6(b)(1), which requires separate findings of eligibility and nondisqualification. Bocchino v. Bd. of Review, 202 N.J. Super. 469, 472-73 (App. Div. 1985).
Because we have affirmed the Board's determination that Coppola was not eligible for unemployment benefits, we are constrained to affirm its determination that he must refund the benefits paid to him. We do so without prejudice, however, to Coppola's right to pursue any remedies available to him under N.J.A.C. 12:17-14.2.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION