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Molloy v. Board of Review


April 7, 2009


On appeal from the Board of Review, Department of Labor, Docket No. 148,476.

Per curiam.


Argued February 23, 2009

Before Judges Sapp-Peterson and Alvarez.

Petitioner, Dori J. Molloy, appeals the March 19, 2008 final decision of the Board of Review (the Board) affirming an Appeal Tribunal order following several hearings, which required her to refund $4808 in unemployment benefits. We affirm.

Petitioner's job at Colonial Supplemental Insurance (Colonial), a subsidiary of Unumprovident Corp., ended August 27, 2006, when the company downsized and her position was moved out-of-state. In September 2006, petitioner commenced to work for her former employer on a commission-only basis, enrolling small businesses in the several insurance programs Colonial offered. Petitioner did not sell coverage; rather, she completed the necessary paperwork to enroll new insureds once policies were sold and forwarded the materials for processing. Colonial scheduled the appointments on Monday through Friday, during normal business hours.

Because the Appeal Tribunal determined that petitioner was actually self-employed as a commissioned salesperson during the weeks in question, she was found to be ineligible for benefits within the meaning of the unemployment compensation law, N.J.S.A. 43:21-1 to -24.30. Accordingly, the Appeal Tribunal ordered that previously paid benefits had to be reimbursed. Four hearings were conducted before the matter concluded, the last two as a result of a November 26, 2007 remand by the Board. In the remand decision, the Board directed the Appeal Tribunal to take additional testimony as to whether petitioner's wages were earned in employment and whether she was available for work and actively seeking work. See N.J.S.A. 43:21-4(c). The hearings were also occasioned by difficulties in obtaining petitioner's complete records.

Petitioner was paid $4808 in unemployment benefits for the weeks ending September 2, 2006, through September 23, 2006, October 21, 2006, January 6, 2007, through January 13, 2007, February 3, 2007, and March 31, 2007, through April 7, 2007. Petitioner was paid approximately $10,392 in commissions by Colonial from September 2006 to March 2007.

Petitioner filed certifications for benefits via the internet, by phone, and in person. The certifications included the hours she worked as well as the commissions she earned. At the second of the four hearings, conducted on August 30, 2007, petitioner repudiated the information contained in several of her prior certifications as to hours worked. She testified that she had mistakenly included the hours she spent looking for work together with hours actually worked for Colonial. When asked why she included both, she said, "I don't know, I just wasn't thinking." Petitioner is a certified public accountant who holds a master's degree in business administration.

The third hearing, conducted on December 14, 2007, was carried to December 17, 2007, because petitioner's records were still unavailable. At the final December 17 hearing, petitioner repeatedly insisted that the discrepancies between the number of hours she worked as she originally certified and as amended on August 30, 2007, were due to bad recordkeeping on her part and the inclusion of hours that she spent looking for employment. She also asserted that she did not know what she had been "thinking" when she completed the paperwork, and that she "should have been more careful." She denied knowing the designation of the specific income tax form that her accountant had filed on her behalf for the 2006 income year. She explained that she was unable to produce the names of all of the prospective employers to whom she had sent resumes or otherwise contacted for work because her computer had "crashed" in "maybe January" of that year.

At the December 17, 2007 final hearing, petitioner was asked about the following statement included in her April 17, 2007 appeal of the initial determination that she owed a refund: "I am also cold calling for appointments and meeting with brokers to sell my own cases in hopes to grow my own block of business and be able to sustain myself in the next few months financially." Despite this unsolicited statement written by petitioner herself, at the final hearing she flatly denied making cold calls soliciting commission work. She claimed that she might have meant that she made cold calls "looking for a job." She later said, "I don't know why I wrote that."

Not surprisingly, the Appeal Tribunal found petitioner's statements not credible as to her purported misunderstanding of the meaning of the phrase "hours worked," her poor recordkeeping and other reasons for providing mistaken information on the original certifications. Given her educational background, the Appeal Tribunal considered the statements to be particularly incredible. Hence, the Appeal Tribunal concluded that petitioner was not available for work, but was in actuality, a self-employed person earning commissions and seeking to establish her own business.

When an administrative agency issues a final decision, our review is limited. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). Our role is to "survey the record to determine whether there is sufficient credible competent evidence... to support the agency... conclusions." Ibid. We do not reverse an agency decision unless it is "'arbitrary, capricious or unreasonable' or it is unsupported by 'substantial credible evidence in the record as a whole.'" In re Morrison, 216 N.J. Super. 143, 160 (App. Div. 1987) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

An agency's credibility findings are entitled to substantial deference. State v. Locurto, 157 N.J. 463, 472 (1999). The decision whether to accept or reject witnesses' testimony rests with the agency so long as the choice is reasonably made. Where reasonable, the decision is conclusive on appeal. Renan Realty Corp. v. Dep't of Cmty. Affairs, 182 N.J. Super. 415, 421 (App. Div. 1981).

Clearly, this record contained substantial evidence that petitioner was not available for work during the relevant time frame. Her repudiation of her initial filings once refunds were demanded was found not to be credible, and given her stated reasons for the allegedly incorrect filings, particularly in light of her background, that conclusion is sound. The credibility findings of the Appeal Tribunal were reasonably made and are therefore conclusive on appeal.

In order to qualify for benefits, an individual must be "able to work,... available for work" and demonstrate that he or she is "actively seeking work." N.J.S.A. 43:21-4(c)(1). We concur with the factual determination that petitioner did not meet that statutory definition of "unemployed" and was accordingly ineligible for the benefits paid to her. She was self-employed as a commissioned salesperson and was attempting to develop her career. Petitioner was not available for work within the meaning of the statute. See Melfi v. Bd. of Review, 336 N.J. Super. 609, 612 (App. Div.), certif. denied, 168 N.J. 289 (2001).

Petitioner asserts in reliance upon Borromeo v. Bd. of Review, 196 N.J. Super. 576, 582 (App. Div. 1984), that her employment of thirty to forty hours of work per week as a commissioned salesperson did not preclude her from seeking employment. That reliance is misplaced. Borromeo does hold that working thirty to forty hours a week at an unproductive sales job "does not in every case ipso facto compel the conclusion that... disqualification exists." Ibid. The facts there, however, were very different from the facts here. Borromeo spent four or five hours daily, four days a week, on the road attempting to sell the product line that he represented in addition to several hours, five days a week, soliciting business on the phone. Id. at 578. In three months, however, Borromeo earned weekly commissions in excess of his weekly benefit rate only once. Id. at 579. His total earnings for the period in question were $495, and during that time he collected $1150 in benefits. Ibid. Those numbers are a far cry from the numbers here.

Furthermore, as petitioner stated in writing, her express intent during the relevant time frame was to develop a customer base in the insurance field. As she said, she hoped to "grow" her own "block of business and be able to sustain [herself] in the next few months financially." A person who is working substantial hours and earning commissions, in addition to working towards developing her own business, is not a person available for other full-time work. There is simply no basis for disturbing the Board of Review's determination. See Svendsen v. Bd. of Review, 364 N.J. Super. 202, 209 (App. Div. 2003) (holding that agency determination will not be disturbed unless arbitrary, capricious or unreasonable, or lacking in substantial support in the evidence).

Having collected benefits to which she was not entitled because she was not attached to the labor market, clearly petitioner must refund the benefits that she received. Accordingly, she must pay back the $4808 at issue. N.J.S.A. 43:21-16(d); Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).


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