SANDRA CALDWELL v. BOARD OF REVIEW DEPARTMENT OF LABOR and KEYSKILLS LEARNING INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0882-09T1

SANDRA CALDWELL,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR, and

KEYSKILLS LEARNING, INC.,

Respondent.

SubmittedMay 9, 2011 Decided July 18, 2011

Before Judges Lisa and Alvarez.

On appeal from the Board of Review, Department of Labor, Docket No. 199,554.

Sandra Caldwell, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Keyskills Learning, Inc. has not filed a brief.

PER CURIAM

Claimant Sandra Caldwell appeals from the August 25, 2 009 Board of Rev.ew (Board) final decision affirming the denial of Emergency Unemployment Compensation Act of 2008 (EUC) benefits. See Pub. L. No. 110-252, Title IV, 122 Stat. 2323, 2353-57 (2008) (note to and amending 26 U.S.C.A. 3304). For the reasons that follow, we affirm the Board's determination that Caldwell was not actively seeking work and was unavailable for work for the period July 12, 2008, to May 2, 2009.

Caldwell's only point on appeal is:

THE APPEAL TRIBUNAL'S FINDING OF INELIGIBILITY FOR PURS[U]ING SELF-EMPLOYMENT OPPORTUNITIES OUTSIDE THE COURSE OF THE NORMAL WORKDAY IMPLIED THAT THE APPELLANT WAS NOT ACTIVELY SEEKING WORK BUT PARTIALLY ACTIVELY SEEKING WORK IS ERRONEOUS AS A MATTER OF LAW AND [] CONTRARY TO THE GOALS OF THE UNEMPLOYMENT ACT AND, THEREFORE, CLAIMANT SHOULD NOT HAVE BEEN DISQUALIFIED FOR EXTENDED UNEMPLOYMENT COMPENSATION (EUC) FROM JULY 12, 2 008 TO MAY 2, 2009.

On February 20, 2008, Caldwell applied for benefits under the Self-Employment Assistance and Entrepreneurial Training Act (SEA), N.J.S.A. 43:21-67 to -70. Those benefits ended on July 12, 2008, after which she applied for additional unemployment benefits.

For "issue clarification," Caldwell completed a statement at the agency's request dated October 2, 2008, which asked if, during the period of time she was seeking EUC benefits, she had been engaged in self-employment activities. She responded in the affirmative. She also answered in the affirmative to the question, "[a]re you continuing to pursue this self-employment on a full-time basis?" Additionally, Caldwell stated that she worked some sixty hours per week in her computer business.

Because Caldwell's October 2008 statement did not indicate that she was available for employment, or detail her efforts at securing employment, the Deputy Director of the Division of Unemployment Insurance (Director) denied her claim for benefits on October 27, 2008. Caldwell appealed to the Tribunal and a hearing was subsequently conducted on November 13, 2008, after which it affirmed the Deputy's determination. On December 9, 2008, Caldwell appealed the decision to the Board. On March 13, 2009, the Board remanded the matter for additional testimony as to her availability for work. The Tribunal conducted a second hearing on May 19, 2009. Its subsequent decision modified the earlier denial only to the extent that Caldwell was deemed eligible for benefits from May 3, 2009 through May 16, 2009, as she established that during those weeks she was available for work and actively seeking employment. See N.J.S.A. 43:21-4(c)(1).

Even when she testified at the first appeal hearing, Caldwell indicated she was still devoting time to her business, and was actively engaged in writing course curricula on her computer. During the relevant time frame, Caldwell could not document efforts at securing other employment other than claiming e-mail contact with employment agencies, that she had visited career centers and job fairs, and had applied for eight bartending jobs.

By the time of the second hearing, Caldwell was working on a per diem basis as a substitute teacher. In an effort to establish her compliance with the Tribunal's request that she document her efforts to locate work, Caldwell provided a letter from the SEA program coordinator at Essex County Community College. Unfortunately, that letter did not specify the jobs for which Caldwell applied, only enumerating the dates of contact between the coordinator and Caldwell.

On August 25, 2009, the Board affirmed the Tribunal's decision and Caldwell appealed to this court. After appeal, the Board could not locate Caldwell's agency file, and therefore obtained an order granting leave for a remand.
Eventually, the Board located the file and reaffirmed the final agency decision issued on August 25, 2009.

The scope of our review of administrative agency action is limited and highly deferential. It is restricted to the following inquiries:

"(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]

So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Id. at 210.

EUC benefits are paid to claimants whose rights to regular unemployment benefits under state or federal law are exhausted after the week of May 1, 2007. Caldwell's receipt of SEA benefits was the equivalent of regular benefits. In order to become eligible for EUC benefits thereafter, an individual must meet all the terms and conditions for payment of regular unemployment compensation under state law. In compliance with federal law, the Division pays EUC benefits to SEA program participants only if those benefits are exhausted, and the participants "are no longer engaged in self-employment activity," and "are able and available for and actively seeking regular full-time work." New Jersey's unemployment compensation law defines eligible individuals as those who are "able to work," are "available for work," and are "actively seeking work." N.J.S.A. 43:21-4(c)(1).

The Board concluded that Caldwell's October 2008 clarification statement which she subsequently repudiated during her testimony, contending that she had misunderstood the questions established that she continued to devote her efforts to the development of her computer business. It was not unreasonable for the Board to find her initial responses more credible than her subsequent statements, which were made after she understood the reason she was denied benefits.

Although it is acceptable for those attempting to sustain themselves through receipt of unemployment benefits to develop, if possible, their self-employment, such efforts cannot make them unavailable for full-time work. See Ford v. Bd. of Review, 287 N.J. Super. 281, 285-86 (App. Div. 1996).

For the period of two weeks in May for which Caldwell was deemed eligible, she submitted a detailed list of job contacts, thereby documenting her attempts to find and availability for work. See N.J.S.A. 43:21-4(c)(1). She did not provide a list for the other weeks.

We review factual findings made by an administrative agency in the same deferential manner as we do other decisions. In fact, on appeal, "the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (internal quotation omitted). So long as the factual findings are supported by "sufficient credible evidence, courts are obliged to accept them." Ibid. (internal quotation omitted). The Board's determination that Caldwell's initial written submission was more credible than her later testimony is based on sufficient, credible evidence in the record.

We do not find the decision to hold Caldwell to her initial assertions to be arbitrary, capricious, or unreasonable. We therefore conclude this ruling should not be disturbed.