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Adams v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 14, 2007

CHARLES M. ADAMS, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW AND NEW JERSEY FOUNDATION FOR THE BLIND, RESPONDENTS-RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No, 83,092.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 10, 2007

Before Judges Parker and C.S. Fisher.

Claimant Charles M. Adams appeals from a Board of Review (Board) decision affirming an Appeal Tribunal (Tribunal) decision that claimant is not eligible for unemployment compensation because he left work voluntarily without good cause related to his employment. We reverse.

Claimant was employed by the New Jersey Foundation for the Blind (Foundation) as a facility coordinator from May 3, 2003 to May 13, 2005. On May 9, 2005, claimant informed the Executive Director, Donna Meade-Pendley, that he needed time off to care for his wife because she was suffering from a Lupus "flare-up." The Director inquired whether plaintiff could work part-time, to which he responded, "No." The Director indicated that claimant had to submit a letter of resignation for payroll purposes, and on May 5, 2005, claimant submitted the letter of resignation effective May 13, 2005. Claimant, however, "believed that there was a mutual agreement that he would be able to return to work at a future date; as soon as his wife recovered."

On July 5, 2005, claimant advised the Director that he was ready to return to work. The Director responded "that his job had been dismantled and that she would need a week to reassemble it." The Director testified that although the Foundation thought about rehiring claimant, it was unable to do so. Claimant was so notified on July 12, 2005.

After the Director declined to rehire claimant, he applied for unemployment benefits, which were denied on July 28, 2005 because he was deemed to have left work voluntarily without good cause attributable to the work. Claimant appealed and the Tribunal conducted a hearing on August 25, 2005. The Tribunal affirmed the earlier decision.

On August 31, 2005, claimant appealed to the Board. The Board remanded the matter to the Tribunal for additional testimony, specifically related to whether the Foundation was required to provide Family Medical Leave and whether plaintiff left with good cause attributable to the work.

On October 21, 2005, the Tribunal conducted a second hearing. During this hearing, the Foundation's director provided a document allegedly signed by claimant, acknowledging receipt of the employee handbook, which specifies procedures for taking a leave of absence from the Foundation. Claimant, however, disputed the legitimacy of the signature on the document because it was dated December 7, 2001 and plaintiff did not begin working for the Foundation until May 3, 2003. Claimant contended that he never received an employee handbook and was unaware of the leave policy, even though he was responsible for distributing them to newly hired employees and collecting the acknowledgement forms.

The Foundation presented evidence regarding the number of its employees and demonstrated that it is not required to provide Family Medical Leave. 29 C.F.R. § 825.104(a); N.J.S.A. 34:11B-3(f)(3).

The Tribunal once again affirmed the original decision, noting that claimant voluntarily left his job to care for his spouse, that he failed to request a leave of absence and that the Foundation was not statutorily required to provide Family Medical Leave because it has less than fifty employees for forty-two weeks of the year. N.J.S.A. 43:21-5(a); N.J.A.C. 12:17-9.1(e).

Claimant appealed the Tribunal's second decision to the Board on January 9, 2006, and the Board affirmed on February 22, 2006. On April 25, 2006, claimant filed his appeal in which he argues:

CLAIMANT'S LEAVING HIS JOB WITH EMPLOYER TO CARE FOR HIS ILL SPOUSE WAS A MUTUAL AGREEMENT WHEREIN THE DOOR WAS LEFT OPEN FOR HIS RETURN TO WORK. WHEN CLAIMANT TRIED TO RETURN, HE WAS TOLD BY THE EMPLOYER HE COULD NOT RETURN TO WORK BECAUSE IT WAS ONLY A MATTER OF TIME BEFORE HIS SPOUSE WOULD HAVE A RELAPSE AND THE EMPLOYER COULD NOT TAKE A CHANCE THAT CLAIMANT WOULD NOT BE THERE FOR WORK. CLAIMANT SHOULD, THEREFORE, NOT HAVE BEEN DISQUALIFIED FOR BENEFITS.

Claimant contends that his absence from work should be treated as a constructive leave of absence since it was based upon permission granted by the Director and that he was involuntarily terminated from his employment on July 12, 2005, when the Director declined to rehire him. Consequently, he maintains that he is eligible to receive unemployment benefits. The Foundation contends that defendant voluntarily left work on May 13, 2005, citing his letter of resignation, which disqualified him from receiving benefits.

Ordinarily, we defer to the decision of an administrative agency unless it "is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

N.J.S.A. 43:21-5(a) provides that a person is disqualified from receiving unemployment benefits when he or she leaves work voluntarily without good cause attributable to such work. Ibid. A claimant bears the "burden of establishing entitlement to unemployment compensation." Combs v. Bd. of Review, 269 N.J. Super. 616, 624 (App. Div. 1994). The burden shifts to the employer when the employee invokes his right to Family Medical Leave under the statute. Hutchens v. Bd. of Review, 368 N.J. Super. 9, 14 (App. Div. 2004).

An employee who chooses to terminate employment for personal reasons, however, is disqualified from collecting unemployment benefits, Self v. Bd. of Review, 91 N.J. 453, 457 (1982), unless the employer has a leave policy for which the employee would qualify or the employee left voluntarily with an understanding he would be rehired in the future. For example, in DeLorenzo v. Bd. of Review, 54 N.J. 361 (1969), the claimant lost her job because of illness unrelated to the employment. Id. at 362. The Court classified her leaving as involuntary because she did not intend to quit her job on account of her illness; she intended to work upon recovery. Id. at 363. The Court found that this was not a voluntary quit within the intent of the statute, N.J.S.A. 43:21-5(a), but found that the Board on remand had properly summarized the meaning of the statute:

The Board of Review does not now hold that a failure to report for work because of illness (not attributable to the work) is itself a voluntary quit which disqualified the employee for benefits after recovery, even though he seeks to return to the job and is refused work.

The Board now holds that when an employee becomes ill and does those things reasonably calculated to protect the employment and, notwithstanding that she is not reinstated, there is no voluntary leaving of work. In these matters involving separation from employment for health reasons, the Board now holds that the disqualification arises only upon a finding that the employee, in fact, decided to terminate the employment because the work duties are detrimental to an existing physical condition or state of health which did not have a work connected origin. [Id. at 364.]

Similarly, claimant did not intend to quit his job. He believed he was leaving work temporarily to care for his wife and he returned to the Foundation on July 5, 2005 seeking reemployment which was denied on July 12, 2005.

Plaintiff testified to his lack of knowledge regarding the Foundation's leave of absence policy. The Foundation's submission of an alleged acknowledgement form purportedly signed by claimant a year and a half before he commenced employment renders the Foundation's credibility highly suspect.

Under the circumstances here, where the Foundation failed to demonstrate that claimant had actual or constructive notice of the Foundation's leave policy, which would otherwise have been available to him, and claimant attempted to regain his employment in accordance with his understanding of the Foundation's agreement, we find that the Board's decision is not supported by substantial credible evidence in the record.

While we ordinarily accord a strong presumption of reasonableness to the decision of an administrative agency, Smith v. Ricci, 89 N.J. 514, 525 (1982), we do not act simply as a rubber stamp of the agency's decision and we will reverse when it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80. Accordingly, the decision of the Board is reversed.

Reversed.

20070314

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