Opinion
DOCKET NO. A-5153-13T3
01-25-2016
LISA A. FRATO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and FAIRVIEW BOARD OF EDUCATION, Respondents.
Lisa A. Frato, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Board of Review, Department of Labor, Docket No. 352,368. Lisa A. Frato, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). PER CURIAM
Lisa Frato appeals from a determination of the Board of Review (Board), dated June 2, 2014, finding her ineligible for unemployment benefits for periods between December 11, 2010 and May 7, 2011, and liable to refund benefits received totaling $2250. The determination by the Board affirmed a December 27, 2013 decision of an Appeal Tribunal (Tribunal), but modified the dates of ineligibility and the amount of the refund. We affirm.
We discern the following facts from the record. Frato was previously employed as a full-time employee in the marketing field. She filed a claim for unemployment benefits on April 19, 2009, seeking a weekly benefit rate of $584. Beginning in June 2009, she worked as a substitute teacher and as a teacher's aide on an "as needed" basis for the Fairview Board of Education (Fairview). Her daily rate was $90 per day. In certain weeks between December 5, 2010 and May 7, 2011, she worked 30 or 32.5 hours, depending on the assignment.
It is unclear from the record under what circumstances Frato's employment was terminated, except that it was involuntary. --------
After an adverse decision by a deputy with the Division of Unemployment Insurance, which was affirmed by the Tribunal and the Board, Frato appealed. Thereafter, we remanded the matter to the Board for a rehearing to determine whether Frato worked full-time or part-time during the time period under review. The Board referred the matter to the Tribunal, which conducted a hearing.
The Tribunal concluded that Frato worked full-time in accordance with N.J.S.A. 43:21-19(m)(1) and was therefore ineligible for benefits for the weeks ending in: December 11 and 18, 2010; January 1 through February 19, 2011; March 5 through April 9, 2011; and April 23 through May 7, 2011. The Tribunal also concluded that Frato was required to refund benefits in the amount of $3174.
Frato appealed the Tribunal's decision to the Board. On June 2, 2014, the Board substantially affirmed the Tribunal's decision but modified it to hold that Frato was ineligible for the weeks ending in: December 11 and 18, 2010; January 8, 2011; February 12 and 19, 2011; March 5 through 26, 2011; April 9, 2011; and April 23 through May 7, 2011. In accordance with N.J.S.A. 43:21-16(d), the Board also modified the Tribunal's decision, holding that Frato was liable for a refund of benefits in the amount of $2250. A dissenting opinion was filed, suggesting that the Board's decision "contravene[d] the remedial purpose of the Unemployment Compensation Law[,]" and the Board misinterpreted "what it means to be unemployed." This appeal followed.
Frato, appearing on her own behalf, raises the following point on appeal:
CLAIMANT, COMING FROM THE BUSINESS WORLD WAS UNAWARE THAT FULL-TIME WAS CONSIDERED 32.5 HOURS. ALSO SHE WAS NOT EMPLOYED AS A CONTRACTED FULL[-]TIME SUBSTITUTE TEACHER. SHE COULD HAVE BEEN TERMINATED AT ANY TIME. SHE WAS UNABLE TO FIND WORK IN HER FIELD SO TOOK LESS LUCRATIVE EMPLOYMENT, HAD SHE HELD
OUT SHE COULD HAVE RECEIVED FULL UNEMPLOYMENT BENEFITS.
Our scope of review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, while the determination of the administrative agency carries a presumption of correctness. Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).
Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations omitted). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (citing Gloucester Cty. Welfare Bd., supra, 93 N.J. at 391).
N.J.S.A. 43:21-19(m)(1)(A) states that an individual shall be deemed "unemployed" for any work week where, "[t]he individual is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate, including any week during which he is on vacation without pay[.]" To distinguish between full-time and part-time, the Board relied on N.J.A.C. 12:17-6.2(b), which states "[t]he number of hours which constitutes less than full-time work shall mean not more than [eighty] percent of the hours worked according to the norm or custom associated with the individual's occupation, profession, trade, or industry during the week of employment."
The Board concluded, based on the evidence presented, that Frato worked more than eighty percent of the typical full-time work week for a teacher or teacher's aide in a special education class in Fairview. The Board reached its conclusion by examining which weeks Frato earned $450 in a week (representing payment for full-time work), and those weeks Frato received less than $450. As a result, the Board was able to recalculate and reduce the amount Frato was liable to refund pursuant to N.J.S.A. 43:21-16(d), which states: "When it is determined . . . that any person . . . has received any sum as benefits . . . while he was disqualified from receiving benefits, or while otherwise not entitled to receive such sum as benefits, such person . . . shall be liable to repay those benefits in full."
Frato cites to our decision in Borromeo v. Bd. of Review, 196 N.J. Super. 576 (App. Div. 1984). In Borromeo, we noted the absence of guidance by the Legislature as to the meaning of "full-time work" in the unemployment context. Id. at 580. However, N.J.A.C. 12:17-6.2 was enacted after Borromeo was decided and provides explicit guidance for defining "full-time work." See N.J.A.C. 12:17-6.2(b).
There is sufficient credible evidence in the record to support the Board's finding that, due to her full-time employment, Frato was ineligible on the dates specified pursuant to N.J.S.A. 43:21-19(m)(1)(A) and that she was required to refund the benefits she received pursuant to N.J.S.A. 43:21-16(d). Frato's remaining arguments concerning potential bias by the Tribunal examiner in the second hearing and the lack of a written contract between herself and Fairview are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION