Opinion
DOCKET NO. A-4880-13T3
04-20-2016
GLORIA SCHAEFER, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and RHP STAFFING COMPANY, d/b/a PINEWOOD ESTATES, Respondents.
Christopher J. Eibeler argued the cause for appellant (Smith Eibeler, LLC, attorneys; Mr. Eibeler, of counsel and on the briefs; Dhara K. Patel, on the briefs). Christopher J. Hanlon argued the cause for respondent RHP Staffing Company (Hanlon Niemann & Wright, P.C., attorneys; Mr. Hanlon, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Christopher M. Kurek, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from the Board of Review, Department of Labor, Docket No. 429,664. Christopher J. Eibeler argued the cause for appellant (Smith Eibeler, LLC, attorneys; Mr. Eibeler, of counsel and on the briefs; Dhara K. Patel, on the briefs). Christopher J. Hanlon argued the cause for respondent RHP Staffing Company (Hanlon Niemann & Wright, P.C., attorneys; Mr. Hanlon, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Christopher M. Kurek, Deputy Attorney General, on the brief). PER CURIAM
Gloria Schaefer appeals from a final decision of the Board of Review (Board), disqualifying her from receiving unemployment benefits, in accordance with N.J.S.A. 43:21-5(a), because she left employment with respondent RHP Staffing Company (RHP) voluntarily, without good cause attributable to the work. She argues she should not have been disqualified from receiving benefits because she was compelled to leave her job due to the "intolerable and unlawful working conditions" that existed at her place of employment and her "decision to accept a 'better position' constitutes good cause to voluntarily leave work." As a result, she argues, the Board's final determination of her ineligibility was incorrect.
In her reply brief, Schaefer raises an additional issue regarding her alleged status as a non-exempt employee that she did not raise in her original brief. We do not consider that argument because "[a]n appellant may not raise new contentions for the first time in a reply brief." L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.), certif. denied, 218 N.J. 273 (2014).
The deputy director initially denied Schaefer's claim for benefits after she was terminated from her employment with Coastal Amusements (Coastal), for whom she worked for approximately one month after leaving RHP. She appealed the denial and, after a telephonic hearing, the Appeal Tribunal affirmed the deputy director's initial decision. Schaefer appealed and the Board affirmed. This appeal followed.
Schaefer's employment history is not disputed. Prior to working for Coastal, Schaefer worked for RHP for five years as the "Community Manager" for a manufactured-home park owned by RHP. At the telephonic hearing before the Appeal Tribunal's claims examiner, both Schaefer and RHP's representatives, David Hale and Joseph Carbone, were represented by counsel and testified to their versions of the facts relating to Schaefer's employment and resignation, and discussions about Schaefer returning to work after she resigned.
According to Schaefer, she left work because "the working conditions were unsafe." She complained of confrontations with community residents who were upset with RHP, RHP's refusal to pay vendors, which caused her to be unable to address the residents' concerns, and the presence of bedbugs, other insects, and rats. Schaefer testified that these conditions existed during the entire course of her employment, but that, due to her financial circumstances, she could not leave her employment until she found another job, which she had been looking for from the time she started working for RHP.
The parties also presented their versions of discussions they had regarding Schaefer returning to RHP's employment after she started her new position. Those discussions broke down when RHP refused to meet Schaefer's demands for a higher salary.
After considering the parties' testimony and the exhibits admitted into evidence, the claims examiner issued a written decision affirming the denial of benefits. She first cited the applicable law, relying upon N.J.S.A. 43:21-5, N.J.A.C. 12:17-9.1, and the Supreme Court's opinion in Self v. Board of Review, 91 N.J. 453 ( 1982). Applying that law, the claims examiner rejected Schaefer's contention that she left her job because of unsafe working conditions. She attributed Schaefer's alleged issues to the location and nature of her employment, finding that working "near woods" would naturally create problems with insects and rodents and that, as the manager of a residential community, it was part of her "job to deal with residents even if the[y] get upset." The claims examiner attributed any delay in RHP's attention to repairs and vendors' invoices to RHP being part of a larger corporation that "has procedures for invoice approvals [that] may . . . take time." Because Schaefer worked under these conditions throughout her employment and sought to be re-employed by RHP at a higher salary even after her resignation, the claims examiner concluded that Schaefer left her job "voluntarily without good cause attributable to the work." In addition, she found that, because Schaefer left her subsequent employer after working there for only four weeks, the time worked was "insufficient to remove the disqualification from" her employment with RHP.
"New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, 'provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment.'" Frazier v. Bd. of Review, 439 N.J. Super. 130, 134 (App. Div. 2015) (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)).
The Act disqualifies a person for benefits
[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment, . . . and has earned in employment at least ten times the individual's weekly benefit rate . . . .
[N.J.S.A. 43:21-5(a).]
The regulation defines "'good cause attributable to such work' [as] a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).
In Self, the Court explained that "a departure not attributable to work is a 'voluntary departure without good cause related to work' that will disqualify the employee from receiving unemployment benefits." Self, supra, 91 N.J. at 457.
We begin our consideration of Schaefer's appeal by recognizing that our "review [of] administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not disturb the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self, supra, 91 N.J. at 459). Because of our deference to the agency and the fact-sensitive nature of the examination into the basis for an employee's departure, the agency's determination carries a strong presumption of reasonableness and, when the agency's findings of fact are challenged on appeal, a claimant carries a substantial burden of persuasion. Gloucester Cty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).
"We [also] defer to an agency's interpretation of its own regulations unless 'plainly unreasonable.'" Frazier, supra, 439 N.J. Super. at 134 (quoting In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). "[W]hen [the] agency's decision is plainly mistaken, however, it is entitled to no such deference and must be reversed in the interests of justice." Ibid. (alterations in original) (citation omitted).
We conclude from our review that Schaefer's contentions on appeal are without sufficient merit to warrant discussion in a written opinion, as the Board's decision was supported by "sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). Schaefer failed to satisfy her burden to prove that she left her employment with RHP for "good cause attributable to the work," see N.J.A.C. 12:17-9.1(c) — reasons beyond "[m]ere dissatisfaction with working conditions [that] are not shown to be abnormal or do not affect health," Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) - especially given that she endured the conditions about which she complained throughout her entire tenure and chose to leave RHP only after securing new employment at a higher salary. See Lord v. Bd. of Review, 425 N.J. Super. 187, 191 (App. Div. 2012) ("[A]n employee's separation will be considered 'voluntarily' within the intent of N.J.S.A. 43:21-5(a) only if 'the decision whether to go or to stay lay at the time with the worker alone'" (quoting Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953))); see also N.J.A.C. 12:17-9.1(b).
In post-briefing submissions, see R. 2:6-11(d), the parties discussed the impact of a 2015 amendment to N.J.S.A. 43:21-5(a), which exempts an employee
who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer.
[L. 2015, c. 41, § 1 (effective May 14, 2015)].
Appellant's reliance upon Rider College v. Board of Review, 167 N.J. Super. 42 (App. Div. 1979), is misplaced. In Rider, we concluded that, "[w]hile there may be situations where a voluntary quit to take a better position because of factors related to the work would constitute good cause attributable to the work, the burden of proving that the voluntary separation from employment meets the statutory test is upon the claimant." Id. at 47. Without proof that she voluntarily left RHP because of reasons "so compelling as to give [her] no choice but to leave the employment," N.J.A.C. 12:17-9.1(b), the situation contemplated in Rider did not exist in this case. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Schaefer argues we should give retroactive application to this amendment. We decline the invitation to do so, as "[t]he general rule of statutory construction is that courts favor prospective application of statutes," and we perceive no basis for making an "exception[] to the general rule against retroactive application" in this case. Lombardo v. Revlon, Inc., 328 N.J. Super. 484, 489-90 (App. Div. 2000).