Andrea N. Frazier v. Board of Review, Department Of

106 A.3d 1252, 439 N.J. Super. 130

• Court: New Jersey Superior Court Appellate Division
• Decided: January 22, 2015
• Docket: A-6228-12T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6228-12T3

ANDREA N. FRAZIER, APPROVED FOR PUBLICATION Appellant, January 22, 2015

v. APPELLATE DIVISION

BOARD OF REVIEW, DEPARTMENT OF LABOR and CENTER FOR FAMILY SERVICES, INC.,

Respondents.

________________________________________________________________

Submitted January 6, 2015 – Decided January 22, 2015

Before Judges Koblitz, Haas and Higbee.

On appeal from Board of Review, Department of Labor, Docket No. 335,488.

South Jersey Legal Services, Inc., attorneys for appellant (Lee Ginsburg, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Anthony DiLello, Deputy Attorney General, on the brief).

Respondent Family Services, Inc. has not filed a brief.

The opinion of the court was delivered by

KOBLITZ, J.A.D. Claimant Andrea Frazier appeals from the July 12, 2013

final decision of the Board of Review, Department of Labor and

Workforce Development, (the Board), affirming the Appeal

Tribunal's decision partially disqualifying her for unemployment

benefits,1 due to claimant's decision to voluntarily leave part-

time weekend employment after being involuntarily terminated

from her full-time job. Because her reasons for leaving her

part-time employment satisfy an exception to the

disqualification for benefits that a voluntary decision to quit

ordinarily carries, we reverse.

Claimant began employment as a full-time mental health

clinician at the University of Medicine and Dentistry of New

Jersey (UMDNJ) in 2005. In 2009 she also began working part-

time as needed on weekends as a counselor at the Center for

Family Services (CFS). On April 8, 2010, she was laid off from

UMDNJ through no fault of her own. Seven months later she

voluntarily quit her part-time CFS job to take other part-time

weekend work at Trenton Psychiatric Hospital (TPH), which

offered her higher pay and a regular schedule as well as a

possible path to full-time employment. Claimant worked at this

1 Our prior remand to the agency, requested by the agency for purposes of a recalculation, resulted in a restoration of $7 in weekly benefits, leaving a reduction of $89 per week due to claimant's partial disqualification from benefits.

2 A-6228-12T3 weekend job for only four months, quitting due to the dangerous

conditions on the job, which made the job unsuitable.2

The only issue before us is whether the Board abused its

discretion in finding that claimant's decision to leave her

part-time CFS job partially disqualified her from receiving

unemployment benefits.

Our review of an administrative agency's final action is

quite limited. "[A]n appellate court will not upset an agency's

ultimate determination unless the agency's decision is shown to

have been arbitrary, capricious, or [] unreasonable, or not

supported by substantial credible evidence in the record as a

whole." Barrick v. State, 218 N.J. 247, 259 (2014) (citations

and internal quotation marks omitted). The decision of an

administrative agency carries with it the presumption of

reasonableness. N.J. Ass'n of Sch. Adm'rs v. Schundler, 211

N.J. 535, 548 (2012) (citing N.J. Soc'y for Prevention of

Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385

(2008)). We defer to an agency's interpretation of its own

regulations unless "plainly unreasonable." In re Election Law

Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262

2 The agency accepted claimant's contention that being required to work with violent mentally ill patients without adequate security rendered this job unsafe and therefore unsuitable. She was, however, held accountable for the prior separation from CFS, reducing her benefits and leading to this appeal.

3 A-6228-12T3 (2010) (citations and internal quotation marks omitted).

"[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. W.T. v. Div. of Med. Assistance & Health

Servs., 391 N.J. Super. 25, 36 (App. Div. 2007) (citations

omitted).

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."

Utley v. Bd. of Review, 194 N.J. 534, 543 (2008) (citation

omitted). N.J.S.A. 43:21-5(a) disqualifies an individual from

the receipt of unemployment compensation 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." Therefore,

"benefits are available to a worker who voluntarily leaves his

job only if it is for 'good cause attributable to [the] work.'"

Utley, supra, 194 N.J. at 544 (quoting N.J.S.A. 43:21-5(a)).

The phrase "'good cause attributable to such work' means 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). If an employee

leaves a job for personal reasons, the employee is disqualified

4 A-6228-12T3 under the statute. Utley, supra, 194 N.J. at 544-45. "The

burden of proof is on the claimant to establish good cause

attributable to such work for leaving." N.J.A.C. 12:17-9.1(c).

Claimant quit CFS only after being terminated from her

full-time job at UMDNJ. She could not live on the income from

the sporadic hours of weekend work provided by CFS. She argues

that, because of the termination of her full-time employment and

her inability to find comparable full-time work, she was forced

to find better-paying and more dependable part-time work. She

anticipated that the job at TPH would provide a path to full-

time employment.

N.J.A.C. 12:17-9.2, entitled "Voluntarily leaving secondary

part-time employment[,]" provides:

(a) A worker, who is employed by two or more employers, one of which is full-time work and the other(s) part-time work, who is separated from the full-time employment and becomes eligible for benefits, and subsequently voluntarily leaves the part- time employment, shall be subject to a partial disqualification for voluntarily leaving the part-time employment. An individual may avoid partial disqualification if he or she can establish good cause attributable to such work as defined in N.J.A.C. 12:17-9.1(b).

. . . .

2. Personal reasons for leaving part- time employment which arise from the loss of the full-time employment may

5 A-6228-12T3 constitute good cause attributable to such work.

The Board argues that this provision was intended to apply

only when a part-time job interferes with the search for full-

time employment, as occurred in Goodman v. Board of Review, 245

N.J. Super. 551 (App. Div. 1991). Goodman held that claimant

was entitled to benefits after quitting her part-time job, which

she obtained after being terminated from full-time employment,

because that job interfered with her search for full-time

employment and was not "suitable employment" in any event, as it

paid substantially less than her full-time job. Id. at 560. In

contrast to the situation in Goodman, a worker who has both a

full- and part-time job at the same time and, after losing the

full-time job, voluntarily leaves the part-time job, is

extremely unlikely to have left the part-time job because it

interfered with seeking a full-time job. Thus, if N.J.A.C.

12:17-9.2(a)(2) is to be applied to individuals who worked part-

time while holding down a full-time job, as is clear from the

plain language of the regulation, other personal reasons

constituting "good cause" must logically be included.

The Tribunal, without explicitly addressing N.J.A.C. 12:17-

9.2(a)(2), reasoned that because claimant could search for a

full-time job and still work when needed on weekends, she did

not qualify for the exception to partial disqualification from

6 A-6228-12T3 benefits when leaving part-time work for personal reasons due to

the loss of a full-time job. The Board affirmed, adding no

further explanation. We are constrained to reject this

constricted interpretation because it is "plainly unreasonable."

In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008,

supra, 201 N.J. at 262 (citations and internal quotation marks

omitted). If the provision was so narrowly intended, we can

think of no reason why it would not explicitly communicate this

narrow intent.

We note as well that Goodman recognizes the

unreasonableness of disqualifying a claimant on the basis of

quitting a low-paying job that she would not have been required

to accept due to its lack of financial suitability.3 Goodman,

supra, 245 N.J. Super. at 558-60; see also N.J.S.A. 43:21-

5(c)(1) (delineating the factors to be considered in determining

whether work is "suitable"); Wojcik v. Bd. of Review, 58 N.J.

341, 345-46 (1971) (holding that voluntarily quitting brief

full-time employment, which began following termination from

3 We recognize that Goodman, decided prior to the promulgation of N.J.A.C. 12:17-9.2(a)(2), left open the possibility of partial disqualification due to quitting a part-time job obtained after being terminated from full-time employment. Goodman, supra, 245 N.J. Super. at 558-59. The Board, however, argues inconsistently that N.J.A.C. 12:17-9.2(a)(2) was promulgated to implement Goodman by avoiding partial disqualification in a Goodman situation, yet it also argues that Goodman's apparent allowance of partial disqualification should be applied here.

7 A-6228-12T3 long-term full-time employment, does not disqualify an employee

when the brief full-time work was unsuitable due to low pay,

inconsistency with prior training, and a risk to health); Johns-

Manville Prods. Corp. v. Bd. of Review, 122 N.J. Super. 366, 370

(App. Div. 1973) (holding that a substantial reduction in wages

is good cause to leave work and renders the job unsuitable).

We are aware that the provision is written with the

permissive word "may[,]" indicating that all personal reasons

that arise from the loss of full-time employment do not

necessarily provide "good cause attributable to the work" and

thus eligibility for full benefits. N.J.A.C. 12:17-9.2(a). The

Board, however, has not provided any reasons other than its

unreasonably narrow interpretation of the provision to justify

rejecting claimant's compelling reasons. Claimant reasonably

sought to improve her employment situation by accepting a part-

time job with guaranteed hours and better pay, a job that might

lead to full-time employment. She was forced to take on the

inherent risk and unpredictability of a new part-time job only

because she lost her full-time job. The agency's interpretation

is inconsistent with Goodman, Wojcik and Johns-Manville and

contrary to the governing statute, N.J.S.A. 43:21-5(a), as

implemented by N.J.A.C. 12:17-9.2(a)(2). We therefore reverse

8 A-6228-12T3 the Board's decision to partially disqualify claimant from

benefits.

Reversed.

9 A-6228-12T3