Opinion
DOCKET NO. A-5163-13T1
11-02-2015
TARA M. GEANT, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and THE BRIARWOOD CARE AND REHABILITATION CENTER, L.L.C., Respondents.
Anthony S. Almeida argued the cause for appellant (Mashel Law, LLC, attorneys; Stephan T. Mashel, of counsel and on the briefs; Mr. Almeida, on the briefs). Anthony DiLello, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DiLello, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 442,718. Anthony S. Almeida argued the cause for appellant (Mashel Law, LLC, attorneys; Stephan T. Mashel, of counsel and on the briefs; Mr. Almeida, on the briefs). Anthony DiLello, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DiLello, on the brief). PER CURIAM
Tara Geant appeals from a final decision of the Board of Review of the Department of Labor and Workforce Development (the Board), reversing the Appeal Tribunal's grant of unemployment benefits to her. The basis for the Board's denial of benefits to Geant was that she was "the party who initiated the separation from work." For the reasons that follow, we reverse.
I.
Geant's employment as Director of Nursing at Briarwood Care and Rehabilitation Center (Briarwood) began on September 24, 2012 and ended July 25, 2013. Geant filed a claim for unemployment insurance compensation benefits. She received a Notice of Determination denying her request for unemployment compensation benefits because she "left work voluntarily on 07/25/2013." Geant filed a notice of appeal.
Geant appeared before the Appeal Tribunal pro se at the telephonic hearing. Joan Orso, Director of Human Resources, Colleen Trakowski, Human Resource and Payroll Coordinator, and Gina Kursof, administrator, testified on behalf of Briarwood. The relevant testimony can be summarized as follows:
During her last week of employment, Geant informed Kursof, she had received an offer of employment at a salary that was $20,000 higher than what she was receiving at Briarwood. Geant told Kursof she had to give the prospective employer an answer by Friday, July 26, 2013.
On the evening of July 24, 2013, Geant sent a text message to Orso. Because it is this text message that forms the exclusive basis for the Board's determination that Geant was disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(a), we recite the text in its entirety:
Hi Joan . . . I'm sorry for the long text, but Gina called me after I spoke with her and said to call you. I'm tied up a bit right now, but need more information to talk this over with my husband and make a [sic] informed decision. I explained to Gina that when I started at Briarwood it was all a blur. I had no orientation. I was handed the keys and shown my office. When I asked Colleen about benefits, she was of no help. She told me to look Magnacare up online, and [I] was never really explained my benefits. As I told Chad, then discussed with you, the verbal I was offered by the recruiter, was that I was looking for $115000 to start, the offer was that I would start at $105000 and be evaluated after 90 days for the increase of $10000. I was also told 4 weeks vacation per year. Not realizing for the first 2 years u average 2 [weeks] a year. I always got 4 weeks my first year, accrued 1 wk per quarter. I am not looking to be a pain, but I do need to make the best decision for myself and family, as I hope u will understand. I feel I have proven my capabilities in light of the severe turnover. I'm in the process of building a strong team second time around, and feel that we can succeed moving forward to the new building. I have given all I've got and then some for the past 9 months, endured MANY obstacles, and would like to continue. Due to this recent offer, I am requesting either
and [sic] increase of $10000 retro effective 12/24 which would've been my 90 days with my yearly eval being 9/24, at which time I would be evaluated for my annual raise. Or a $20000 increase and 4 weeks available vacation to me for this period, with an effective date of 7/21. If Windsor does not feel I have been an asset to the corporation thus far, please let me know, and it will be an easier decision for both. Once again, I apologize for the long text, and do appreciate your attention to this matter.
[(Emphasis added).]
After receiving this text message, Orso communicated with Kursof, and termed Geant's demands "ludicrous." She felt the demand made in the text message was "extortion." Orso testified Geant had made a request for a $10,000 increase a few weeks earlier that had been declined. She stated she told Kursof,
[W]e can't meet the demands, I will not meet those demands so we will have to . . . move forward with her accepting her resignation, as she said in her text. She has to do what's best for her and her family and I'll make her decision."
[(Emphasis added).]
Upon questioning from the Appeal Tribunal examiner, Orso conceded the text message did not include any statement that Geant would quit if her demands were not met. She answered, "Not in those words, she said it would be an easier decision," and stated further Geant had said if she did not get the requested increase, "she has to do what's best for her and her family or make her decision easier."
On the following afternoon, July 25, 2013, Geant was summoned to the office where Kursof and Trakowski were waiting, while Orso participated in the meeting over speakerphone. Orso informed Geant that Briarwood would not be able to meet either her requested $20,000 or $10,000 salary increases and was unwilling to provide increased vacation time. Orso testified further:
I did let her know that I didn't appreciate the demands that she was making on us, I mean she just started with us and she hadn't even been with us for a year so I wasn't quite sure why she was doing this to us. So she said that's fine and I said based on that we will accept your resignation and she said thank you, thank you, thank you what a relief.
Geant was escorted to her office and given thirty minutes to gather her things and leave the building.
Both Kursof and Trakowski testified Geant sighed and said, "what a relief." Kursof added that Geant said, "thank you." Orso also stated Geant did not object to anything that was said during this meeting.
Geant provided a different account of the meeting. According to Geant, Orso said "we are terminating you immediately . . . to accept this other job offer for more appreciation." She denied sighing or saying "what a relief." She had wanted to discuss further whether there could have been any other negotiations at that point. She testified:
I did not make any demands nor did I ever say that I was resigning; I had to give a decision to the other employer by Friday. I was called in on Thursday and as they said they let me go, to accept another offer. They let me go, at no point during my text, or in that office did I say if you do not meet my demands I am out of here . . . . At no point did I ever put anything out there as far as I was going to leave if my demands were not met.
The examiner asked Geant if, once the employer told her they were not going to meet her demands, "would you have stayed on the job?" She answered, "absolutely, absolutely," and stated she had anticipated they "were going to be a great team" and "wanted to stay with Briarwood and move on to the new building." Following the telephonic conference, the Appeal Tribunal issued a written decision, reversing the initial disqualification.
Orso submitted a letter of appeal to the Appeal Tribunal. In the letter, she referred to Geant's texted statement, "your answer will make my decision easier," and posed the rhetorical question: "What decision would have been easier? Is someone actually to believe she referred to staying on with Briarwood?"
The Board reversed the Appeal Tribunal, holding Geant was disqualified for unemployment benefits. The Board stated:
The undisputed testimony in the record supports that the claimant was offered a much better paying job and she demanded an increase
in pay and vacation time from this employer prior to making a decision. The separation from work occurred when the employer informed the claimant that they could not meet her demands. Whether or not the employer, at that point, told the claimant that she was being discharged so she could accept the other position is irrelevant. The ample evidence supports the fact that it was the claimant [who was] the party who initiated the separation from work. The mere fact that the claimant not only applied, but pursued another job offer and was ready to make a decision by July 26, 2013 is indicative of her intent to sever the employment relationship. We conclude that the claimant left work voluntarily without good cause attributable to the job. The claimant is, accordingly, disqualified for benefits as of July 21, 2013, pursuant to N.J.S.A. 43:21-5(a).
[(Emphasis added).]
The matter was remanded to the Director of the Division to determine Geant's potential liability for refund of benefits already received. The Division issued a Request for Refund, ordering Geant to refund $16,224 of unemployment benefits. Geant appealed the refund request.
Geant testified she did not accept the third party offer for "personal reasons." --------
In this appeal, Geant argues the Board misinterpreted the applicable legal principles and its determination that she left her job voluntarily without good cause attributable to the work was arbitrary and capricious because it was not supported by adequate evidence in the record. She argues further that she should not be required to refund any of the benefits received. We agree.
II.
Our review of agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In reviewing the agency's factual findings, we give due regard to the agency's expertise and ability to judge credibility. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Absent a finding that it was "arbitrary, capricious, or unreasonable," we will not disturb an agency's decision. Brady, supra, 152 N.J. at 210. To ascertain whether an agency's decision is arbitrary, capricious or unreasonable, this court must determine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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.
[Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation and quotation marks omitted).]
"As a reviewing court, while we respect an agency's expertise, ultimately the interpretation of statutes and regulations is a judicial, not administrative, function and we are not bound by the agency's interpretation." Silver v. Bd. of Review, 430 N.J. Super. 44, 58 (App. Div. 2013). Therefore, we are "not bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue." Lavezzi, supra, 219 N.J. at 172 (citation and quotation marks omitted).
The declared public policy underlying the Unemployment Compensation Law (UCL) is "to lighten [the] burden which . . . so often falls with crushing force upon the unemployed worker and his [or her] family." N.J.S.A. 43:21-2. Because the law is remedial in nature, it must be liberally construed in favor of the allowance of benefits. Teichler v. Curtiss-Wright Corp., 24 N.J. 585, 592 (1957); Weber-Smith v. Bd. of Review, 337 N.J. Super. 319, 323 (App. Div. 2001); Bodnarchuk v. Bd. of Review, 309 N.J. Super. 399, 403 (App. Div. 1998); Meaney v. Bd. of Review, 151 N.J. Super. 295, 298 (App. Div. 1977). The Supreme Court has observed, "[t]he Legislature plainly intended that the reach of the subsection was to be limited" and that "the act [] be liberally construed to further its remedial and beneficent purposes." Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435, 436 (1953).
It is with this understanding that we review the disqualification applied here.
A former employee is disqualified from receiving unemployment benefits if the employee "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). The analysis involves two parts: (1) whether the claimant's separation from employment was voluntary; and in the event the separation was voluntary, (2) whether the separation was for "good cause attributable to such work." Lord v. Bd. of Review, 425 N.J. Super. 187, 190-91 (App. Div. 2012). We conclude the Board erred in its interpretation of "voluntary," giving undue weight to its finding that Geant "initiated" the discussion that led to the termination of her employment.
In Lord, we stated an employee's separation will not be voluntary if the court finds it was "employer rather than employee-initiated." Id. at 194. However, the central issue is not how the separation was "initiated," but how it was ultimately effected. Voluntary actions contributing to the separation alone are insufficient; the separation itself must be voluntary and within the employee's exclusive control. Campbell Soup, supra, 13 N.J. at 435. Ultimately, an employee's separation from work is voluntary if "the decision whether to go or to stay lay at the time with the worker alone." Lord, supra, 425 N.J. Super. at 191 (quoting Campbell Soup, supra, 13 N.J. at 435).
In Lord, the employer informed the employee he "must resign" when the employee, whose personal vehicle was being repaired, could not guarantee on Thursday that he would have an automobile available to make deliveries on Monday. Lord, supra, 425 N.J. Super. at 190-91. In denying benefits, the Board stated,
[T]he one who initiates that action which eventually leads to the separation is the one who is responsible for breaking the employer-employee relationship. Thus, the claimant left work because he was unable to obtain transportation to perform his job. This was a personal reason and was not attributable to the work.
[Id. at 190.]
We rejected the premise that an employee's temporary inability to provide the transportation necessary for his work constituted a "voluntary" separation under N.J.S.A. 43:21-5(a), finding it "inconsistent with the principle that the [UCL] 'is to be construed liberally in favor of allowance of benefits.'" Id. at 195 (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)).
In Campbell Soup, unionized employees were required by their employment agreement to retire at age 65. 13 N.J. at 433-34. Although the employees voluntarily submitted to the contract calling for their mandatory retirement, the Supreme Court reversed the Board's determination that their subsequent retirement was a voluntary quit under N.J.S.A. 43:21-5(a). Id. at 435. The Court found the legislative intent to protect employees would be contravened by determining voluntariness based upon an employment agreement. Rather, the Court "isolated" the inquiry to "the time of termination," and concluded, "plainly none of the claimants left voluntarily in the sense that on his own he willed and intended at the time to leave his job . . . . We think the leaving was involuntary in the statutory sense." Ibid.
Here, it is evident Orso was displeased by Geant's request for additional compensation and vacation time, particularly so soon after an earlier request had been rejected and so early in her employment. It was also not unreasonable for Orso to speculate that Geant was likely to quit if her request was denied. However, it is undisputed Geant did not make an unequivocal statement that she would leave unless her demand was met. Therefore, Orso's interpretation remained one of speculation regarding the outcome.
There is no doubt Geant "initiated" the discussion that led to her termination. She interviewed for and received an offer of employment from a third party, and then presented that information to her employer, apparently as an effort to bolster her request for increased compensation by posing the possibility of her departure as an alternative if her request was not met. But, most significantly, she never announced what her decision was or would be. Rather, it was Orso who stated, "I'll make her decision." In our view, this accurately reflects that "the decision whether to go or to stay" did not "lay at the time with the worker alone." Lord, supra, 425 N.J. Super. at 191 (quoting Campbell Soup, supra, 13 N.J. at 435). Accordingly, Geant's separation was not voluntary. Moreover, it would clearly subvert the legislative intent to protect workers if an employee is deemed to voluntarily quit, resulting in the denial of benefits, merely by exploring alternative employment options and attempting to negotiate an increased salary based upon the results of that inquiry.
We reverse the final decision of the Board of Review denying benefits and the request for refund. The case is remanded to the Division of Unemployment and Disability Insurance to determine the amount of unemployment compensation benefits to which Geant is entitled. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION