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DeGregorio v. Board of Review

August 26, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 202,015.

Per curiam.


Submitted May 18, 2010

Before Judges Carchman and Lihotz.

Claimant Dawn C. DeGregorio appeals from a final decision of the Board of Review (Board) requiring her to refund unemployment compensation benefits previously paid during a period when she was found ineligible to receive benefits. The Board affirmed the determination of an appeals tribunal, which found claimant liable to repay the benefits previously paid. N.J.S.A. 43:21-16(d)(1). Following our review, we conclude the final decision of the Board was properly premised upon facts in the record and its determinations were consonant with relevant statutory provisions. Accordingly, we affirm.

Claimant was employed by Bell-Mark Sales Co., Inc. (Bell-Mark) as an accounts receivable clerk from October 2006 to October 4, 2007. While employed, claimant often told her co-worker Lorraine Ciuta of her plans to relocate to Florida. She even showed Ciuta pictures of a house claimant and her husband intended to purchase when they moved. Claimant was scheduled to undergo surgery on October 5, 2007, and return to work on October 8, 2007. Although claimant's surgery was re-scheduled, on October 5, 2007, she neither notified her employer nor attended work. During the appeal tribunal hearing, claimant testified she later called Bell-Mark on October 8, 2007, to advise she was sick and requested the day off. On October 9, 2007, claimant again called her supervisor, James Pontrella Jr., finally disclosing that she was in Florida. She also called Ciuta, explaining her husband had secured employment in Florida; they had purchased a home, and intended to relocate. Finally, in an October 10, 2007 telephone conversation with Pontrella, claimant confirmed her intention to relocate to Florida. Pontrella stated Bell-Mark would replace her.

Claimant filed for unemployment compensation benefits. Her application was denied by a deputy claims examiner, who found she had "left work voluntarily without good cause attributable to such work[.]" N.J.S.A. 43:21-5(a). Claimant appealed. During a telephonic hearing before the appeals examiner, claimant testified she was terminated. No representative from the employer appeared. Consequently, the appeals tribunal (tribunal) found claimant was discharged by her employer and she did not intend to leave her job. Claimant was awarded $8,788.00 in benefits. Bell-Mark appealed, challenging the determination. The Board remanded the matter to an appeals tribunal for additional evidence regarding claimant's separation from employment. Upon remand, the same appeals examiner conducted a telephonic hearing during which claimant, her husband, Ciuta and Pontrella testified. The tribunal concluded claimant had not been discharged but instead voluntarily left her employment, making her ineligible to receive benefits. Claimant appealed to the Board, which affirmed the tribunal's decision.

In a separate matter, the Director of the Division of Unemployment Insurance issued a Request for Refund of the monies previously paid to claimant. Claimant also appealed that determination. A tribunal concluded claimant was liable for refunding all benefits erroneously paid. Following its review, the Board affirmed that determination.

In disputing the Board's findings, claimant argued Bell-Mark dismissed her despite the fact that she was ready, willing and able to return to work and continued to reside in New Jersey. Additionally, because she maintains she is eligible to receive benefits, claimant asserts she should not be required to repay the monies she had received.

The scope of our review of administrative agency decisions is limited. Brady v. Bd. Of Review, 152 N.J. 197, 210 (1997); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The agency's determination carries a presumption of correctness, and a claimant carries a substantial burden of persuasion. Gloucester Cty. Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). "We are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record," Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations and citations omitted), and overturn an agency determination only if "'it is found to be arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester Cty., supra, 93 N.J. at 391). Finally, we accord substantial deference to an agency's interpretation of the statute it is charged with enforcing. Board of Educ. v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). "The basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374.

The governing statute, N.J.S.A. 43:21-5(a), provides an individual is disqualified for unemployment benefits where the "individual has left work voluntarily without good cause attributable to such work." Self v. Bd. of Review, 91 N.J. 453, 456-57 (1982). "Good cause means cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed[.]" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal citation omitted).

Our review of the record discerns the Board's determination denying claimant benefits was properly supported by substantial credible evidence. The Board rejected claimant's contention that Bell-Mark fired her. She departed for Florida after postponement of a medical procedure on October 5, 2007, and she did not report for work on October 5, and October 8 through 10. Additionally, the evidence included Ciuta's testimony relating claimant's disclosures of her move and the purchase of a home, along with Pontrella's statement that claimant resigned, which he confirmed in an October 11, 2007 letter to claimant stating, "Congratulations on your relocation plans to Florida. I wish you and your husband the best in your move and his new job." We have no basis to interfere with the Board's reasonable conclusion to deny claimant's request for benefits because she voluntarily resigned her employment in order to relocate to Florida. See Lourdes Med. Ctr., supra, 197 N.J. at 367-68; Campbell, supra, 39 N.J. at 562.

Finally, because claimant had been paid benefits that she was not entitled to receive, she is liable to refund the benefits paid pursuant to N.J.S.A. 43:21-16(d). See Kugel v. Bd. of ...

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