Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Soler v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 20, 2008

ANA Y. SOLER, APPELLANT,
v.
BOARD OF REVIEW, AND CASTLEFORD TAILORS, LTD., RESPONDENTS.

On appeal from a Final Decision of the New Jersey Department of Labor and Workforce Development, Board of Review, Docket No. 131,317.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2008

Before Judges S. L. Reisner, Gilroy and King.

Claimant Ana Y. Soler appeals from the December 29, 2006, final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision holding her disqualified for unemployment benefits, pursuant to N.J.S.A. 43:21-5(a), for having left work voluntarily, without good cause attributable to the work. We reverse and remand.

Claimant was employed by Castleford Tailors, Ltd., as a sewing machine operator from August 8, 2005, through September 6, 2006, after which she applied for unemployment compensation benefits. On October 19, 2006, a Deputy Director of the Division of Unemployment Insurance (Division) found claimant eligible for benefits, determining that she had been terminated from employment because of excessive absenteeism, not for misconduct connected with the work. The employer appealed to the Appeal Tribunal, and a hearing was conducted on December 1, 2006, at which claimant was unrepresented. In the interim, claimant had been receiving unemployment benefits.

On December 4, 2006, the Appeal Tribunal issued its decision, determining claimant ineligible for benefits since September 3, 2006, pursuant to N.J.S.A. 43:21-5(a). "The claimant's separation occurred when the claimant was unable to commit [to a fulltime work schedule] due to the potential of family obligations. Her reason for leaving was personal and not attributable to the work itself." After modifying the Deputy's determination, the Appeal Tribunal remanded the issue of claimant's potential liability to refund benefits already received to the Director for "an initial determination in accordance with established procedure." Claimant appealed to the Board. On December 29, 2006, the Board affirmed the decision of the Appeal Tribunal.

On appeal, claimant argues:

POINT I.

THE UNEMPLOYMENT COMPENSATION LAW IS REMEDIAL LEGISLATION WHICH IS TO BE LIBERALLY CONSTRUED FOR CLAIMANTS AND WHICH IS PROTECTED BY PROCEDURAL DUE PROCESS.

POINT II.

THE FACTUAL FINDINGS AND LEGAL CONCLUSIONS OF THE AGENCY ARE UNSUPPORTED BY AND INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE, AND THE DECISION TO DENY BENEFITS IS CONSEQUENTLY ARBITRARY, CAPRICIOUS, AND UNREASONABLE.

A. THE EVIDENCE IN THE RECORD DEMONSTRATES THAT THE EMPLOYER TERMINATED THE CLAIMANT DUE TO CLAIMANT'S INDICATION THAT SHE PERIODICALLY HAD FAMILY OBLIGATIONS, AS SHOWN BY EMPLOYER TESTIMONY.

B. THE EMPLOYER CHOSE TO HAVE THE TERMINAL CONVERSATION WITH THE CLAIMANT IN ENGLISH, A LANGUAGE SHE CANNOT SPEAK, AND AS A RESULT, IN THE INTEREST OF JUSTICE, EMPLOYER TESTIMONY ON CLAIMANT'S INTENT TO VOLUNTARILY QUIT MUST BE GIVEN NO WEIGHT.

C. THE CLAIMANT WAS PURSUING HER UNION RIGHTS AND CONTINUED EFFORTS TO MAINTAIN HER EMPLOYMENT, EVIDENCE WHICH THE AGENCY OVERLOOKED AND UNDERVALUED SUCH THAT THE DECISION OF THE BOARD OF REVIEW APPEARS TO BE MISTAKEN AND ARBITRARY.

D. THE EMPLOYER ADMITTED THAT THE STANDARD OF WORK BEING MANDATED BY PROMISE WAS NOT A STANDARD TO WHICH ALL EMPLOYEES [WERE] EXPECTED TO COMMIT.

POINT III.

THE PROCEDURE OF THE DEPARTMENT OF LABOR IN THIS CASE VIOLATED BASIC CONCEPTS OF PROCEDURAL DUE PROCESS AND DENIED CLAIMANT THE RIGHT TO A FAIR HEARING, UNDER STATE AND FEDERAL LAW.

A. THE ISSUE OF THE EMPLOYER'S APPEAL, PRESENTED TO THE NON-ENGLISH[-]SPEAKING CLAIMANT PRIOR TO THE HEARING WAS IMPROPERLY CHANGED, WITHOUT NOTICE AND WITHOUT THE CLAIMANT'S CLEAR UNDERSTANDING OF HER DUE PROCESS RIGHTS.

B. THE CLAIMANT WAS DENIED DUE PROCESS WHEN THE AGENCY RELIED ON HEARSAY EVIDENCE FROM THE WITNESS CALLED TO SUPPORT THE EMPLOYER, WAS NOT PRESENT ON SEPT. 6, AND FURTHER, WHEN THE EXAMINER FAILED TO CALL THE ONLY MANAGER WHO COULD CONFIRM THAT THE CLAIMANT HAD PROPERLY REQUESTED LEAVE.

C. THE TELEPHONE HEARING PROCESS HAD AUDIBILITY ISSUES, INTERPRETATION ISSUES, AND A DISAPPEARING EMPLOYER REPRESENTATIVE; AS A RESULT, THE HEARING SHOULD AT LEAST BE REMANDED TO ADDRESS PROCEDURAL ISSUES IN THE INTEREST OF JUSTICE.

POINT IV.

DISMISSING AN EMPLOYEE FOR EXPRESSING THE POTENTIAL TO TAKE FAMILY AND MEDICAL LEAVE IN ACCORDANCE WITH FEDERAL AND STATE LAW OFFENDS PUBLIC POLICY AND OFFENDS THE CLAIMANT'S ESTABLISHED RIGHTS.

I.

Appellate courts have a limited role in reviewing decisions of an administrative agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); State-Operated Sch. Dist. of Newark v. Gaines, 309 N.J. Super. 327, 331 (App. Div.), certif. denied, 156 N.J. 381 (1998). There should not be an independent assessment of the evidence by the appellate court. In re Taylor, 158 N.J. 644, 656 (1999). The appellate court must accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982); City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). Thus, the determinations of the administrative agencies must be given great deference. State v. Johnson, 42 N.J. 146, 159 (1964). We cannot overturn an agency's decision that is based on sufficient evidence, even if this court would have reached a different result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 578 (1998); Outland v. Bd. of Trs., 326 N.J. Super. 395, 400 (App. Div. 1999).

II.

Claimant argues that she was denied the right to a fair hearing before the Appeal Tribunal. Claimant contends that she commenced the hearing believing that the employer was contesting her receipt of unemployment benefits on the ground that she had been discharged for misconduct, N.J.S.A. 43:21-5(b), not because she had left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). Claimant contends the Appeal Tribunal examiner did not provide her with sufficient information concerning the adverse effect that a finding she had left work voluntarily without good cause attributable to the work would have on her obligation to repay benefits already received, and on receipt of future benefits. Claimant asserts that absent that information, she was unable to make an intelligent waiver of her right to an adjournment of the hearing to prepare an adequate defense against the employer's new assertion.

The employer counters that claimant was provided the opportunity "for a complete hearing by the Board." The employer contends that the examiner correctly informed claimant of the consequences of an adverse decision if she went forward with the hearing that day and lost. We disagree.

The principle is well established that "'state statutes providing for the repayment of unemployment compensation benefits create in the claimants for those benefits property interests protected by due process.'" Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992) (quoting Wilkinson v. Abrams, 627 F.2d 650, 664 (3rd Cir. 1980)). In the context of a possible termination of unemployment benefits, a claimant is entitled to adequate notice and an opportunity to be heard. Garzone v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004). As stated by the Court, "[p]ut simply, the citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government decision becomes final." Rivera, supra, 127 N.J. at 583.

Under the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, for notice to comply with due process, the notice must include: "(1) . . . the time, place, nature of the hearing; (2) . . . the legal authority and jurisdiction under which the hearing is to be held; (3) [a] reference to the particular sections of the statutes and rules involved; [and] (4) [a] short and plain statement of the matters asserted." N.J.S.A. 52:14B-9(b). If the notice fails to adequately explain the matters to be addressed at the hearing, a claimant is entitled, "upon application[,] [to] a more definite and detailed statement," N.J.S.A. 52:14B-9(b)(4). In addition, the process requires that the "statement of the matters asserted," ibid., informed the claimant "as to the sanction [or consequences] which might result" on a finding of disqualification. Malady v. Bd. of Review, 166 N.J. Super. 523, 531-32 (App. Div. 1979) (citing Reid v. Dep't. of Labor and Indus., 164 N.J. Super. 350, 351 (App. Div. 1978)).

The difference in a claimant being determined ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-5(a) (having left work voluntarily without good cause attributable to the work) as compared to being determined ineligible under N.J.S.A. 43:21-5(b) (suspended or discharged for misconduct connected with the work) is considerable. Under N.J.S.A. 43:21-5(a), a claimant is deemed ineligible "[f]or the week in which the individual has left work voluntarily . . . and thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case." N.J.S.A. 43:21-5(a). Moreover, whenever an individual who has been paid unemployment compensation benefits is subsequently found not to have been entitled to those benefits, that individual must repay them in full to the Division. N.J.S.A. 43:21-16(d); see Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). Accordingly, if claimant is determined to have left work voluntarily, she would be subject to repaying all benefits received prior to the Board's final decision.

However, if a claimant is determined ineligible for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(b), his or her period of ineligibility is limited to "the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period), as determined in each case." N.J.S.A. 43:21-5(b). Accordingly, any refund of benefits received would also be limited.

The Appeal Tribunal hearing was conducted by the claimant and employer's representatives appearing telephonically. Although the claimant understands English, she has difficulty expressing herself "to make [her] point." Accordingly, the Division provided a Spanish interpreter, who also appeared telephonically. At the outset of the hearing, the Appeals Tribunal examiner stated that she was under the belief that "the issue in this case is misconduct." On questioning the employer's vice president, Hugh McGinn, the examiner inquired whether claimant's separation was "due to a discharge, a voluntary leaving, or lack of work?" Mr. McGinn answered that the employer considered claimant "as a voluntary resignation." Immediately after hearing this statement, the examiner stopped the proceeding and provided notice to claimant of the effect a determination that she left work voluntarily without good cause attributable to work would have on her right to receive future unemployment benefits, and of her right to an adjournment to address the new assertion of the employer:

Examiner: Miss Soler the employer contends that you voluntarily resigned the position which carries a different disqualification period. That disqualification period is indefinite until you go back to work and work . . . at least four weeks and earn[] six times your weekly benefit rate.

Interpreter Translates.

Interpreter: Can I speak?

Examiner: No not yet.

Interpreter Translates.

Claimant: Okay.

Examiner: Since the issue of voluntary leaving was not included on the notice of hearing that schedule[d] you for the hearing today we can continue with the hearing today with the understanding that you may be disqualified indefinitely for benefits or we can postpone the hearing in order for you to prepare for the issue of voluntary leaving at another hearing.

Interpreter Translates.

Claimant: Uh huh.

Interpreter Translates.

Examiner: In order to [insure] due process for both parties I have to give the claimant Miss Soler an opportunity to make a decision whether to address this issue today or at another hearing. What would you like to do Miss Soler?

Interpreter Translates.

Claimant. Uh huh.

Interpreter Translates.

Interpreter: Sorry I didn't expect this because that's not true what he's say.

Examiner: Do you wish to continue with the hearing with the understanding that a new issue will be determined [and] discussed or do you want to prepare for the issue of voluntary leaving for another hearing date which will be scheduled within 30 days. Interpreter Translates.

Claimant: Uh huh.

Interpreter Translates.

Interpreter: I'll continue.

We are satisfied that claimant was provided with sufficient notice to defend against and address the employer's assertion that she had left work voluntarily for reasons not attributable to the work. Claimant was informed that if she was found to have left work voluntarily for personal reasons, she would be disqualified for unemployment benefits indefinitely until she becomes reemployed and has worked four weeks and earned in employment six times her weekly benefit rate. N.J.S.A. 43:21-5(a). However, claimant was not informed that if she was found to have left work voluntarily for reasons not attributable to the work, that she would be required to refund all unemployment benefits already received.

Because the examiner's advice at the hearing did not inform claimant of her exposure to having to repay all benefits already received, we determine that such notification did not comply with fundamental principles of due process governing contested unemployment benefit proceedings. N.J.S.A. 52:14B-9(b); Malady, supra, 166 N.J. Super. at 531-21; Reid, supra, 164 N.J. Super. at 351. Although we cannot determine whether the outcome of the hearing would have been any different or whether claimant would have engaged the services of an attorney to represent her at a continued hearing because of her exposure to repayment of benefits already received, we conclude that a remand is necessary to provide her that opportunity in view of the inadequate oral notice provided by the examiner. "[W]e are satisfied that essential fairness requires that she be given the opportunity for a presentation on adequate notice with respect to liability for a refund . . . ." Reid, supra, 164 N.J. Super. at 353.

Because we are remanding the matter for a new hearing on proper notice to claimant, advising of all issues that will be addressed at the hearing, we do not address claimant's remaining points.

Reversed and remanded. We do not retain jurisdiction.

20080220

© 1992-2008 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.