KAI A. HUNTER v. BOARD OF REVIEW AND NEW YORK CITY BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0502-10T4

KAI A. HUNTER,

Appellant,

v.

BOARD OF REVIEW AND NEW YORK

CITY BOARD OF EDUCATION,

Respondents.

____________________________________________________________

May 31, 2011

Submitted May 10, 2011 - Decided

Before Judges Graves and Waugh.

On appeal from the Board of Review,

Department of Labor, Docket No. 243,918.

Kai A. Hunter, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent Board of Review (Lewis A.

Scheindlin, Assistant Attorney General,

of counsel; Lisa N. Lackay, Deputy Attorney

General, on the brief).

Respondent New York City Board of Education

has not filed a brief.

PER CURIAM

Claimant Kai Hunter appeals from a final decision of the Board of Review (Board), which affirmed a decision by the Appeal Tribunal. The Appeal Tribunal determined that Hunter was not eligible to receive unemployment compensation benefits because she "left work voluntarily without good cause attributable to such work," and that she must repay the benefits she received in the amount of $22,545. We affirm.

During the Appeal Tribunal hearing on March 2, 2010, Hunter testified she was employed by the New York City Board of Education as a substance abuse counselor for seven months until mid-June 2008. During that seven-month period, Hunter was living in New Jersey, and her commuting expenses, including tolls and parking, were "about $20.00 per day." Hunter testified that she submitted her resignation "due to financial difficulties" because she did not "have the funds to get back and forth from New Jersey to New York."

The Appeal Tribunal concluded that Hunter was not qualified to receive unemployment benefits and that she was liable to repay the benefits she received:

The claimant was employed by the [New York City Board of Education] for 7 months through mid June 2008. The claimant left work because of financial difficulty attributed to the commute to work. The claimant could not afford the cost of gasoline, tolls and parking she was paying to get to work. The employer had not agreed to compensate for those expenses. She left work for that reason only.

A claim for unemployment benefits dated 7/27/08 established a weekly rate of $501.00. The claimant received benefits in the sum of $22,545.00 for the weeks ending 8/2/08 through 6/6/09.

. . . .

The claimant's leaving the job due to the cost to commute to work is a personal one. The claimant is disqualified under N.J.S.A. 43:21-5(a) as of 6/15/08, as the claimant left work voluntarily without good cause attributable to the work.

Since the claimant received benefits to which she was not entitled, the claimant is liable for refund in the sum of $22,545.00, received as benefits for the weeks ending 8/2/08 through 6/6/09, in accordance with N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2, unless the Director directs otherwise.

Hunter filed an administrative appeal, but the Board affirmed the Appeal Tribunal's decision on September 2, 2010. On appeal to this court, Hunter acknowledges that she resigned from her job due to the "costly commute." Nevertheless, she contends she was eligible to receive benefits and should not be required to refund them. We do not agree.

Our role in reviewing 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). Ordinarily, we "will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

In this case, we conclude that the Board's decision to deny claimant benefits and to require repayment of the benefits received is supported by substantial credible evidence. The governing statute, N.J.S.A. 43:21-5(a), provides that a claimant may not receive benefits if he or she "has left work voluntarily without good cause attributable to such work." Although the statute does not define "good cause," "courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).

Hunter testified she "liked" her job and her only reason for resigning was her inability to pay her commuting expenses. Thus, the record amply supports the Board's determination that Hunter was not eligible for benefits because she voluntarily quit her job for personal reasons. See Utley v. Bd. of Review, 194 N.J. 534, 544-45 (2008) (stating that "when 'commuting problems' arise solely from the personal circumstances of the worker, unrelated to an alteration in the terms or conditions of employment, the worker who voluntarily quits his job cannot show 'good cause' qualifying him for benefits"); Morgan v. Bd. of Review, 77 N.J. Super. 209, 214 (App. Div. 1962) ("An employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work.").

We also agree that Hunter must refund the unemployment benefits that were erroneously paid to her. N.J.S.A. 43:21-16(d)(1) requires the full repayment of unemployment benefits received by any individual who was not entitled to receive the benefits regardless of the reason for the overpayment. Moreover, in Bannan v. Board of Review, 299 N.J. Super. 671, 674 (App. Div. 1997), this court recognized that the recovery of such benefits "furthers the purpose of the unemployment compensation laws," and that "[t]he public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been."

The Division of Unemployment and Temporary Disability Insurance is required by regulations to issue a demand for a refund of improperly paid benefits whenever a determination of overpayment is made. N.J.A.C. 12:17-14.1 Except in cases of fraud, the Division must seek refunds "before four years have elapsed from the time the benefits in question were paid." N.J.S.A. 43:21-16(d)(1); see also N.J.A.C. 12:17-14.1. Here, the refund demand was timely, and Hunter admitted receipt of benefits in the amount of $22,545. Consequently, the Board's decision requiring Hunter to repay the benefits was neither arbitrary, capricious, nor unreasonable.

Hunter's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).