Opinion
DOCKET NO. A-3043-13T4
09-27-2016
STACY MILLER, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and COUNTY OF BURLINGTON, Respondents.
Sarah Hymowitz argued the cause for appellant (Legal Services of New Jersey, Inc., attorneys; Ms. Hymowitz, of counsel and on the brief; Melville D. Miller, on the brief). Robert M. Strang, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Strang, on the brief). Andrew C. Rimol argued the cause for respondent County of Burlington (Capehart Scatchard, P.A., attorneys; Evan H.C. Crook, of counsel and on the brief; Mr. Rimol, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Rothstadt. On appeal from the Board of Review, Department of Labor, Docket No. 429,087. Sarah Hymowitz argued the cause for appellant (Legal Services of New Jersey, Inc., attorneys; Ms. Hymowitz, of counsel and on the brief; Melville D. Miller, on the brief). Robert M. Strang, Deputy Attorney General, argued the cause for respondent Board of Review (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Strang, on the brief). Andrew C. Rimol argued the cause for respondent County of Burlington (Capehart Scatchard, P.A., attorneys; Evan H.C. Crook, of counsel and on the brief; Mr. Rimol, on the brief). PER CURIAM
Stacy Miller appeals from a final decision of the Board of Review (Board), disqualifying her from receiving unemployment benefits, in accordance with N.J.S.A. 43:21-5(a), because she voluntarily left employment with the County of Burlington, without good cause attributable to the work. She argues the Board should not have disqualified her from receiving benefits because she did not leave work voluntarily. Rather, she left after having received a notice of "impending layoff or discharge," N.J.A.C. 12:17-9.5, which qualified her for unemployment benefits. As a result, she argues, the Board's final determination of her ineligibility was incorrect. We disagree and affirm.
"New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, 'provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment.'" Frazier v. Bd. of Review, 439 N.J. Super. 130, 134 (App. Div. 2015) (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)).
The Act disqualifies a person for benefits
[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment, . . . and has earned in employment at least ten times the individual's weekly benefit rate . . . .
[N. J.S.A. 43:21-5(a).]
The regulation provides:
Voluntary leaving work prior to imminent layoff or discharge.
If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days.
[N. J.A.C. 12:17-9.5.]
The facts adduced at a hearing before the Appeal Tribunal regarding Miller's employment were undisputed and can be summarized as follows. Miller worked for the County from 1997 to November 25, 2012, as a corrections officer. Prior to her last day of work, Miller received notification from the County that she was to appear for three disciplinary hearings regarding her repeatedly arriving late for her shift and for her failure to "clock out" on November 17, 2012. According to a representative from the County, "If [Miller] was found guilty on all three [charges of misconduct], she was facing termination . . . ."
According to Miller, she was advised by her union representative that she would not be able to prevail at the hearings because her tardiness was due to personal reasons — including oversleeping - and she did not have any evidence to present in mitigation of her conduct — e.g. flat tires, sickness and the like. The union representative also advised Miller that she should resign rather than face termination because, if the County fired Miller, she could not rely on the County as a reference in a future job search.
Miller stopped reporting for work after November 25, 2012. She used accrued vacation time and, on December 12, 2012, informed the County in writing that she was resigning effective December 18, 2012, because she was moving out of state. According to Miller, she included the reference to moving out of state to give "an air of legitimacy to her resignation and avoid any suggestion of termination."
Miller applied for unemployment benefits in May 2013. By that time, she had relocated to South Carolina. In response, the Deputy Director of the Department of Labor notified Miller she was disqualified from receiving benefits because she left work voluntarily without good cause attributable to her work. Miller appealed and the matter was scheduled for a hearing before the Appeal Tribunal. Miller and a representative of the County testified at the telephonic hearing. After considering the testimony and other evidence adduced during the hearing, the Appeal Tribunal issued a decision modifying the Deputy Director's determination. The Appeal Tribunal rejected the determination that Miller left work voluntarily without cause, finding "[s]ubstantial evidence . . . that [Miller] resigned in the face of imminent discharge to protect her name," but found that she was "dicharg[ed] for severe misconduct." Citing to N.J.S.A. 43:21-5(b), the Appeal Tribunal determined Miller was therefore not eligible for benefits.
This portion of the statute states in pertinent part:
An individual shall be disqualified for benefits:
. . . .
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b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow that week, as determined in each case.
Miller appealed the Appeal Tribunal's determination to the Board, arguing the Appeal Tribunal applied the wrong standard, and Miller's infractions "did not constitute . . . misconduct" that warranted discharge. In its written decision, the Board adopted the Appeal Tribunal's findings, but rejected its determination that Miller was discharged for misconduct and "that [she] resigned in lieu of imminent discharge" because, if Miller had participated in the scheduled disciplinary hearings, there was a possibility that she would not be terminated. The Board determined that Miller instead left work to relocate out of state, which was a personal reason "not attributable to the employment." As a result, she was disqualified from receiving benefits in accordance with N.J.S.A. 43:21-5(a).
After Miller received the Board's decision, she asked the Board to reconsider. The Board granted Miller's request, vacated its earlier determination and issued a final decision on January 9, 2014. In its final decision, the Board expanded on its earlier conclusions and again found Miller to be disqualified from receiving benefits. The Board found that Miller notified her employer she was resigning to move out of state and as "the [disciplinary] hearing officer had not made a decision and [Miller] had a relatively short period to wait . . . [for the hearings that could have] subject[ed] [her] to a lesser penalty for her infractions . . . [she] was not in danger of imminent discharge when she resigned to relocate out of state."
This appeal followed.
On appeal, Miller argues that the Board erred by not "adjudicating the case under N.J.A.C. 12:1[7]-9.5," and its decision was "arbitrary, unreasonable, and capricious because it is based on findings of fact unsupported by the case record." Relying on our opinion in Shuster v. Bd. of Review, Dept. of Labor, 396 N.J. Super. 240 (App. Div. 2007), Miller contends that her receipt of notices to appear for disciplinary hearings, coupled with statements made by the union representative, established she was facing imminent discharge and her statement that she was resigning to move out of state was only made "to give an appearance of legitimacy to her resignation."
We begin our consideration of Miller's appeal by recognizing that our "review [of] administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not disturb the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Board of Review, 91 N.J. 453, 459 (1982)). Because of our deference to the agency and the fact-sensitive nature of the examination into the basis for an employee's departure, the agency's determination carries a strong presumption of reasonableness and, when the agency's findings of fact are challenged on appeal, a claimant carries a substantial burden of persuasion. Gloucester Cty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).
"We [also] defer to an agency's interpretation of its own regulations unless 'plainly unreasonable.'" Frazier, supra, 439 N.J. Super. at 134 (quoting In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). "'[W]hen [the] agency's decision is plainly mistaken,' however, it is entitled to no such deference and must be reversed in the interests of justice." Ibid. (alterations in original) (quoting W.T. v. Div. of Med. Assistance & Health Servs., 391 N.J. Super. 25, 36 (App. Div. 2007)).
Applying this standard, we conclude from our review that Miller's contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and that the Board's decision was supported by "sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). We affirm substantially for the reasons stated by the Board. We add only the following brief comments.
Miller failed to meet her burden of proof that she received a notice from her employer that her "lay off or discharge" was definite, see N.J.A.C. 12:17-9.5; Brady, supra, 152 N.J. at 218-19; Shuster, supra, 396 N.J. Super. at 247 (holding discharge was imminent when employer "specifically advised [employee] that her continued employment was no longer desired and that he intended to find a replacement"), or that "[t]he circumstances [of her employment were] so compelling as to indicate a strong probability that [her] fears about [her] job security [would] in fact materialize, that serious impending threats to [her] job [would] be realized, and that [her] belief that [her] job [was] imminently threatened [was] well founded." Shuster, supra, 396 N.J. Super. at 245 (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)). "Mere speculation about job stability is insufficient." Ibid. (quoting Fernandez, supra, 304 N.J. Super. at 606).
Also, we agree with the Board's interpretation of its own regulation that prevents an employee facing disciplinary hearings from being eligible for unemployment benefits when she resigns rather than risk the outcome of the hearings, which can never be certain, regardless of any advice she receives from third parties. The Board also appropriately relied on the fact that the employee informed the employer she was leaving her job to move out of state — and then relocated. We have no cause to disturb the Board's decision in this matter.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION