Opinion
DOCKET NO. A-1726-12T1
07-21-2014
JOY A. XHUDO, Plaintiff-Appellant, v. BOARD OF REVIEW and SAFE STREETS U.S.A., Defendants-Respondents.
John J. Hoffman
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the Board of Review, Department of Labor, Docket No. 384,793.
Joy A. Xhudo, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Adam Verone, Deputy Attorney General, of counsel and on the brief).
Respondent Safe Streets U.S.A. has not filed a brief. PER CURIAM
Claimant Joy A. Xhudo appeals the final decision of the Board of Review (Board) of the New Jersey Department of Labor and Workforce Development (Department). The Board affirmed her ineligibility for the partial unemployment benefits she had received and required her to repay those benefits. Xhudo disputes her ineligibility under N.J.S.A. 43:21-4(c), arguing that she was not offered full-time employment upon her return from maternity leave and, therefore was not a part-time employee due to her own unavailability. We affirm.
I.
It is undisputed that Xhudo worked for Safe Streets USA (Safe Streets) as a full-time Sales Representative from October 2009 to August 2010. She took maternity leave in August 2010 and returned to Safe Streets as a part-time employee in December 2010.
Xhudo testified that, after returning from maternity leave, she contacted Safe Streets Human Resources manager, Anna Fugel, to inquire into her eligibility for partial unemployment benefits. Unable to answer Xhudo's questions, Fugel told Xhudo to "contact the State." Xhudo contacted the Department, which informed her that she was eligible for benefits if she worked less than thirty-two hours per week. Xhudo filed a claim for partial unemployment. The Department approved her claim, and Xhudo received weekly payments of $425 for the weeks ending January 22, 2011 to January 14, 2012, totaling $15,102.
In April 2012, the Department sent a letter to Xhudo, informing her that a re-determination had been conducted, that she was determined to have been ineligible for benefits in January 2011, and that she was required to "refund the sum of $15,102.00 received as benefits for the weeks ending January 22, 2011 through January 14, 2012."
Xhudo appealed the re-determination to the Department's Appeal Tribunal (Tribunal). At a telephonic hearing on July 20, 2012, Xhudo testified that, upon returning from maternity leave, she "wanted to go back full-time because [she] had no issues with childcare." She claimed that Ray Stelter, her manager, placed her on a part-time schedule because business "was slow" and "[t]here wasn't enough work to fill." She added that, "as far as [she] knew," Safe Streets was aware she was collecting benefits, and that at no point did Safe Streets inform her of her ineligibility.
Stelter and Fugel also testified. Stelter testified that he offered Xhudo full-time work when she returned to Safe Streets in December, but she refused. According to Stelter, Xhudo explained that "she just could not give [Safe Streets] full-time hours" because she was "still getting acclimated" to life with her baby and needed to coordinate with her husband's work schedule. Stelter stated that he had hired Xhudo as a full-time employee and expected her to return to work full-time, but he agreed to allow Xhudo to work part-time hours for "a few weeks" to get acclimated because she was "an asset to the company." Stelter testified that he spoke with Xhudo "numerous times throughout [the] year" about returning to full-time status, but Xhudo continued to refuse. Fugel corroborated Stelter's testimony, stating that it was her understanding that Stelter wanted Xhudo to "come back full-time," but Xhudo "would only come back part-time" because "she was going to stay home with the baby."
The Tribunal rejected Xhudo's claim that Safe Streets did not offer full-time employment to her when she returned to work, and affirmed the Department's decision. It found "the first hand persuasive testimony presented by the employer witnesses indicates [Xhudo] was allowed to return to her full-time employment, but chose not to due to childcare issues." Because "[c]ontinuing full-time work was available with [Safe Streets] from January 16, 2011 until the present time," and Xhudo "restricted her employment to part-time," she was "ineligible for benefits under N.J.S.A. 43:21-4(c)" due to her own unavailability.
Xhudo appealed the Tribunal's determination to the Board, which affirmed the Tribunal on October 19, 2012. Xhudo appeals to this court.
II.
"'[I]n reviewing the factual findings made in an unemployment compensation proceeding, 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.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "If the Board's factual findings are supported "by sufficient credible evidence, courts are obliged to accept them.'" Ibid. Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009). We must hew to our limited standard of review.
III.
In this appeal, Xhudo argues that she was entitled to partial unemployment benefits because Safe Streets did not make full-time hours available. She thus disputes the Tribunal's contrary credibility findings.
On appeal, Xhudo also argues for the first time, and with no evidentiary support, that Safe Streets had expanded their Florida office and reduced their New Jersey office, resulting in less hours for the sales representatives remaining in New Jersey, eventually closing the New Jersey office after she left in September 2012 for a second maternity leave. "Generally, an appellate court will not consider issues . . . which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Thus, we give this unsupported argument no weight.
The Tribunal heard Stelter and Fugel testify, and found their testimony more credible and persuasive than Xhudo's testimony. We must give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Makutoff v. Bd. of Review & Soc. Gen., 427 N.J. Super. 218, 223 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 656 (1999)). Further, the Board accepted the Tribunal's credibility determination. If the credibility and factual findings of the Board "are supported by sufficient credible evidence, courts are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982); see Messick v. Bd. of Review, 420 N.J. Super. 321, 330 (App. Div. 2011). We see no basis in the record to overturn the credibility finding of the Tribunal and Board. Having properly found the employer's witnesses credible, the Tribunal's decision and Board's affirmance were supported by sufficient credible evidence in the record.
The Board's decision also comported with the law. The unemployment compensation program is "designed to provide a cushion for workers who are involuntarily unemployed through no fault or act of their own." Brady, supra, 152 N.J. at 222; see N.J.S.A. 43:21-2. To be eligible, a claimant must "demonstrate an ability and willingness to conform to a reasonable work schedule offered by the employer." McCoy v. Bd. of Review, 381 N.J. Super. 169, 172 (2005); N.J.S.A. 43:21-4(c). A claimant shall be disqualified for benefits "if it is found that the individual has failed, without good cause . . . to accept suitable work when it is offered." N.J.S.A. 43:21-5(c). Furthermore, "[a]n individual who limits his or her availability to part-time work shall be ineligible for benefits" unless "[t]he individual has worked in part-time work during a substantial portion of the individual's base year." N.J.A.C. 12:17-12.7(b). Here, Xhudo's base year was her prior full-time employment with Safe Streets, and so her claim was not based on prior "part-time employment." N.J.A.C. 12:17-12.7(a).
Separation from employment due to childcare is "reviewed as a voluntarily leaving work issue." N.J.A.C. 12:17-9.1(e)(2). The Tribunal found Xhudo was offered full-time work "numerous times" from January 2011 to January 2012, but always declined "because of the time that she needed to spend [at] home and with the baby." A "claimant's inability to return to work due to the unavailability of childcare arrangements is irrelevant and not 'good cause.'" Espina v. Bd. of Review, 402 N.J. Super. 87, 93 (App. Div. 2008). Having found Xhudo voluntarily restricted herself to part-time employment to meet her childcare needs, the Tribunal and Board properly found her ineligible for the partial unemployment benefits she received. Xhudo has failed to show that the Board's decision was arbitrary, capricious, or unreasonable.
Because Xhudo was ineligible for partial unemployment from January 22, 2011 to January 14, 2012, the Department properly determined she was obligated to return the funds she received for that period. Under N.J.S.A 43:21-16(d)(1), claimants who receive benefits to which they are not entitled "shall be liable to repay those benefits in full." A claimant's obligation to refund any improperly received unemployment benefits applies even if the claimant receives the benefits in good faith. Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973). Accordingly, Xhudo was properly found liable to repay the benefits she received between January 22, 2011 and January 14, 2012. "Although the Act is to be liberally construed in favor of claimants to effectuate its remedial purposes," it is also the Board's important duty "'to preserve the [unemployment insurance trust] fund against claims by those not intended to share in its benefits.'" Brady, supra, 152 N.J. at 212 (alteration by Court; citations omitted).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION