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Dahling v. Board of Review

August 12, 2009

EILEEN S. DAHLING, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND KEITH L. DUNOFF, D.M.A., D/B/A DIVERSIFIED DENTAL, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 171,433.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Parker and LeWinn.

Petitioner Eileen S. Dahling appeals from the March 31, 2008 final decision of the Board of Review (Board), which affirmed the decision of the Appeal Tribunal finding petitioner disqualified for unemployment benefits as of April 22, 2007, and liable for repayment of $10,764 in benefits she received. For the reasons that follow, we reverse and remand for a new hearing before the Appeal Tribunal.

At the Appeal Tribunal hearing held on January 14, 2008, petitioner testified that beginning in May 2003, she was employed as the office manager at Diversified Dental, of which Dr. Keith Dunoff was the proprietor. In February 2007, petitioner requested a leave under the Family Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601 to 2654, to care for her ailing husband. Dr. Dunoff told petitioner she could work from home and come into the office whenever possible; petitioner was paid for the hours that she worked.

Petitioner further testified that three weeks into her FMLA leave, she saw her office manager position advertised in a local paper. When petitioner went into the office April 22, 2007, a new employee, Kathy Acey, was sitting at petitioner's desk; petitioner's possessions were boxed up and there was no workspace provided for her. Petitioner testified that she assumed she was "out[] of [t]here."

Petitioner told Dr. Dunoff that she had seen her position advertised in the local newspaper, and that Acey was "presenting herself as an office manager and there [wa]s no workspace for [her]." Dr. Dunoff "didn't really respond . . . ." As a result of that conversation petitioner assumed she had been terminated.

Petitioner thereupon applied for unemployment benefits; between April and November 2007, she received $414 per week in benefits. In December 2007 petitioner received a notice from the Department of Labor informing her that she had been disqualified for benefits because she had left her job voluntarily. The notice further advised petitioner that as a result of this ineligibility determination, she was obligated to repay $10,764.

It appears that a "protest" filed by Dr. Dunoff triggered this notice; as of the date of the hearing before the Appeal Tribunal, however, petitioner had not received a copy of Dr. Dunoff's "protest." The Board has appended a copy of this "protest" to its brief; the form, dated July 30, 2007, states that petitioner's last day of work was April 25, 2007, noting "Eileen [r]esigned . . . position . . . 'QUIT[.]'" Appended to the form is a statement bearing Dr. Dunoff's typed name, which reads as follows:

Eileen Dahling resigned her position, and it was witnessed that she said, "I QUIT[.]" Her position had been maintained for her at her available hours . . . and it was made very clear that there always was a need for her skills and tasks requiring her involvement in the office. However, Eileen made the decision to resign.

Petitioner presented the testimony of two co-workers, Bernadette Faragasso and Mary Poe. Faragasso testified that once Acey began her employment there, Dr. Dunoff told Faragasso to discuss "concerns with the office" with Acey because "he said . . . she's your officer manager." Faragasso stated that Acey "started to do everything that [petitioner] used to do from day one. Taking care of Medicaid, taking care of the doctor's salaries, taking care of . . . everything that [petitioner] had done previously." Faragasso also testified that she "had heard through people in the office that . . . the position had been in the paper and then about two weeks after that [Dr. Dunoff] was interviewing and then maybe about two weeks after that was when [Acey] came on board."

Poe testified that she "concur[red] with everything" that petitioner and Faragasso said in their testimony. Poe also stated that she saw petitioner's position posted in the newspaper as "office manager."

No witnesses appeared on behalf of petitioner's employer and no testimony was presented supporting the position that petitioner had resigned voluntarily. The hearing examiner did not question ...


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