EILEEN S. DAHLING v. BOARD OF REVIEW DEPARTMENT OF LABOR and KEITH L. DUNOFF, D.M.A d/b/a DIVERSIFIED DENTAL

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APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4379-07t24379-07T2

EILEEN S. DAHLING,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

KEITH L. DUNOFF, D.M.A.,

d/b/a DIVERSIFIED DENTAL,

Respondents.

_______________________________


Submitted March 24, 2009 - Decided

Before Judges Parker and LeWinn.

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

Eileen S. Dahling, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent, Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Keith L. Dunoff, D.M.A., respondent has not filed a brief.

PER CURIAM

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 petitioner on the contents of Dr. Dunoff's "protest."

On January 31, 2008, the Appeal Tribunal issued a decision finding that petitioner "left . . . work voluntarily without good cause attributable to [the] work," and, therefore, was disqualified for benefits as of April 22, 2007. The hearing examiner further found that "[a] few weeks after [petitioner] began her FMLA, the employer hired another employee. That new employee was stationed at the claimant's desk and began doing the claimant's job duties." Notwithstanding the testimony of petitioner's two co-workers, the examiner found that "[t]he employer never presented the new employee as the officer manager until months after the claimant left . . . work voluntarily."

Because "[t]he employer never told [petitioner] that she was being discharged[,]" the examiner concluded that "[s]ubstantial testimony provided during the hearing established that [petitioner] had left . . . work voluntarily without good cause attributable to such work." (Emphasis added). On March 31, 2008, the Board summarily affirmed the Appeal Tribunal, finding no need for "a further hearing."

On appeal, petitioner argues that the Board erred in finding her ineligible for unemployment benefits; violated statutes and regulations by "redetermining" petitioner's qualification for benefits; and violated her due process rights.

We find no merit to petitioner's claims regarding statutory, regulatory and constitutional violations. We do conclude, however, that the Appeal Tribunal mischaracterized the testimony before it as "[s]ubstantial" and, therefore, erred in rendering a determination adverse to petitioner on the record before it.

We are satisfied that petitioner believed her employment had been terminated as evidenced by a new employee, Acey, sitting at her desk and being identified by her co-workers as the new manager, as well as the fact that petitioner's belongings had been boxed up and no workplace remained for her to use. We conclude that the reasonableness of petitioner's belief should have been examined more thoroughly at the hearing. The examiner heard testimony only from petitioner and two witnesses who supported her, and had no evidence from the employer other than Dr. Dunoff's "protest." This does not, in our view, constitute "[s]ubstantial" credible evidence of record.

We reach this conclusion notwithstanding our obligation generally to accord deference to administrative agency factfinding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). Where, as here, we conclude that the agency's decision is not supported by the record, we will reverse. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

N.J.S.A. 43:21-5(a) provides that an individual shall be disqualified 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 four weeks in employment, . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

"'Good cause'" has been construed to mean "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Trupo v. Bd. of Review, 268 N.J. Super. 54, 57 (App. Div. 1993) (quoting Domenico v. Bd. of Review, 192 N.J. N.J. Super. 284, 287 (App. Div. 1983)). "Good cause" has further been defined by regulation to mean "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 scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence." Domenico v. Bd. of Review, supra, 192 N.J. Super. at 288.

Measured against these standards, we conclude that petitioner's subjective belief that she had been replaced by Acey as office manager under the circumstances may have presented petitioner with "a reason . . . so compelling as to give [her] no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). Petitioner acknowledged that Dr. Dunoff never specifically told her that she was terminated or that she had been replaced by Acey. Petitioner did testify, however, that when she spoke to Dr. Dunoff on April 22, 2007, after finding Acey at her desk, "[h]e really had no explanation." When petitioner said "I guess I'm outta here[,]" Dr. Dunoff apparently said nothing to disabuse her of that notion.

As no witness testified on behalf of the employer before the Appeal Tribunal, we conclude that the hearing examiner improperly considered Dr. Dunoff's unsworn and unchallenged statement to be more credible than the sworn testimony presented by petitioner and her witnesses.

Therefore, this matter must be remanded for a new hearing. We express no view on the ultimate merits of petitioner's claim; we are concerned only that the evidence of record adequately supports the resolution of that claim.


Reversed and remanded for proceedings in conformance with this opinion.

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A-4379-07T2

August 12, 2009