LEANNE LEBLANC v. BOARD OF REVIEW

NOT FOR PUBLICATION /* /*]]>*/

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5054-10T3

LEANNE LEBLANC,

Appellant,

v.

BOARD OF REVIEW and MICHAEL

FITZPATRICK, DMD, L.L.C.,

Respondents.

_____________________________________

March 11, 2013

 

Argued May 22, 2012 - Decided

 

Before Judges Nugent and Carchman.

 

On appeal from the Board of Review, Department of Labor, Docket No. 292,423.

 

Alan H. Schorr argued the cause for appellant (Alan H. Schorr and Associates, attorneys; Arykah Asheley, on the briefs).

 

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

 

Respondent Michael Fitzpatrick, DMD, L.L.C., has not filed a brief.

PER CURIAM

Appellant Leanne LeBlanc appeals from the final determination of the Board of Review (the Board) that reversed the decision of the Appeal Tribunal and disqualified her for unemployment benefits because she voluntarily left her job. Because appellant was not afforded the opportunity to make either an oral or written argument to the Board, we reverse and remand.

The Appeal Tribunal found the following facts, which the Board "affirmed and adopted." Appellant worked as a dental hygienist for respondent, Dr. Fitzpatrick, from November 6, 2007 through June 6, 2010. Dr. Fitzpatrick hired appellant to work three and one-half days per week and she never worked a four-day week while employed by him. Upon returning from maternity leave following the birth of her first child, appellant requested and was granted permission to work three days per week from 8:00 a.m. to 5:00 p.m. because of her childcare needs. Dr. Fitzpatrick allowed her to work that schedule from February 26, 2009 to February 17, 2010, when she took another maternity leave. She remained out of work on maternity leave, followed by Family Leave, through June 23, 2010. Appellant expected to return to work on June 24, 2010.

Appellant attended a training course at work on May 19, 2010, at which time she discussed her return to work with Dr. Fitzpatrick. Dr. Fitzpatrick requested that appellant return to work four days per week. She explained she could only work three days per week because she only had childcare for three days. Dr. Fitzpatrick subsequently notified appellant he could employ her only two days per week and he was giving her other scheduled work day to another hygienist. Dr. Fitzpatrick told appellant that if the office were busy, he would schedule her for an additional half-day from time to time. He made clear, however, that he could not guarantee the additional half-day.

Appellant explained to Dr. Fitzpatrick that she needed to work three days each week for financial reasons. She said she would work the two days if she were able to find work elsewhere for one day each week "to cover the reduction in hours."

On June 2, 2010, appellant and Dr. Fitzpatrick spoke again about her return to work. Her employment with him ended on that day. Dr. Fitzpatrick advised appellant he could not allow her to return to her three-day work week, and that he could only give her two days because she could not work a four-day week. Appellant reiterated that she needed to work three days each week to meet her financial obligations. She explained that she was unable to find work elsewhere for only one day each week. The Appeal Tribunal found that "[a]s a result of the change in hours, appellant resigned." Appellant disputes that factual determination.

The Appeal Tribunal concluded appellant was eligible for unemployment benefits and reversed a Deputy's contrary determination. The Appeal Tribunal reasoned that appellant did not leave work voluntarily without good cause attributable to the work. Rather, the Appeal Tribunal determined that the work was not suitable and that claimant had good cause for her refusal to continue to work two days per week.

On April 11, 2011 the Board adopted the Appeal Tribunal's factual findings but reversed its decision, holding that the Appeal Tribunal

[f]ound the issue to be reviewed [as] a refusal of suitable work as her change in hours was substantial and the claimant had good cause for refusing this new offer of work. We do not agree. The claimant was hired on a part-time basis so the reduction in hours is not considered new work.

 

The Board concluded that "claimant's leaving partial employment for no employment" did not give her good cause to leave and as such, appellant was disqualified for unemployment benefits. This appeal followed.

Appellant raises the following issues on appeal:

I. THE APPEAL TRIBUNAL ERRED IN FINDING THAT MS. LEBLANC RESIGNED FROM EMPLOYMENT.

 

II. THE DECISION BY THE BOARD OF REVIEW IS NOT ENTITLED TO DEFERENCE BECAUSE THE DEPARTMENT OF LABOR DID NOT MAKE FINDINGS AS TO CRITICAL FACTS IN DISPUTE.

 

III. THE CLAIMANT WAS DENIED DUE PROCESS BECAUSE SHE DID NOT RECEIVE PROPER NOTICE OF HER RIGHTS AND/OR OBLIGATIONS WHEN AN EMPLOYER APPEALS TO THE BOARD OF REVIEW.

 

IV. IN THE ALTERNATIVE, SHOULD THE APPEAL TRIBUNAL'S FINDING OF FACTS BE DEEMED ACCURATE, THE BOARD OF REVIEW ERRED WHEN IT FOUND THAT THE EMPLOYER'S UNILATERAL CHANGE IN MS. LEBLANC'S HOURS WAS NOT NEW WORK AND/OR A SUBSTANTIAL CHANGE IN HER WORK CONDITIONS.

 

a. In the alternative, should the Court determine that the reduction in hours constituted suitable work, Ms. LeBlanc should only have been subject to a four week disqualification.

 

The scope of our review is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). When we "'review[] the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We "must . . . give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982).

Appellant first contends the Appeal Tribunal erred by finding that she resigned. She argues that her "employer's argument that [she] refused to accept the two-day work schedule is illogical," and that she agreed to work two days, but Dr. Fitzpatrick withdrew that offer. In short, she argues that the Appeal Tribunal reached the wrong factual conclusion, and should have accepted her testimony.

The Appeal Tribunal's finding of fact -- that appellant resigned --is supported by sufficient credible evidence. Dr. Fitzpatrick testified explicitly that he did not fire appellant, she declined to work two or possibly two and one-half days, and she said she would be better off on unemployment. The doctor's testimony fully supported the Appeal Tribunal's factual determination that appellant rejected the doctor's offer and resigned. We will not second-guess the Appeal Tribunal's credibility determination. See Logan, supra, 299 N.J. Super. at 348.

Appellant's second argument is little more than a reiteration of her first argument. She asserts that because she was not timely advised of Dr. Fitzpatrick's appeal through the Board, she was not able to submit a brief, and the Board was thus unaware that she "did not resign from employment but was terminated when the employer rescinded the offer of a reduced work schedule." Appellant then repeats that "the Board['s] decision still is contrary to the evidence it had before it."

Appellant's second argument warrants little discussion. In its decision, the Board stated, "[t]he matter is reviewed on the record below." The record below included the Appeal Tribunal's resolution, based on its credibility determination, of the conflicting testimony about whether appellant resigned, or whether Dr. Fitzpatrick revoked his offer to employ her two days per week. The record also included the recording of the Appeal Tribunal hearing. Having the recording before it, the Board was able to assess the basis of the Appeal Tribunal's credibility determinations, and decide whether to adopt or reject those determinations. The Board decided to adopt the Appeal Tribunal's fact-finding and credibility determinations. As we have previously noted, those findings and determinations are supported by sufficient credible evidence in the record.

Appellant claims in her third argument that her right to due process of law was denied because she "was never advised that she . . . could participate in opposing the employer's appeal to the Board[.]" More specifically, appellant argues the "Notification of Appeal to the Board of Review" did not inform her that she had a right to contest her employer's appeal with supporting documentation and did not inform her of a deadline for submitting documentation. She asserts that had she been notified of those rights, "she would have defended her qualification for unemployment benefits as well as argued that she did not resign but had in fact accepted the two day work schedule and that it was the employer who severed the work relationship when it gave [appellant's] shifts to a coworker." Appellant also asserts that had she received proper notification of her rights, she "may have chosen to have experienced counsel to defend her appeal."

Unquestionably, "'state statutes providing for the payment of unemployment compensation benefits create in the claimants for those benefits property interests protected by due process.'" Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992) (quoting Wilkinson v. Abrams, 627 F.2d 650, 654 (3d Cir. 1980)). "'[A]ny proceeding which is to be accorded finality [requires] notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Id. at 583 (alterations in original) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 399 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 2d 865, 873 (1950). Here, the record reflects that Dr. Fitzpatrick submitted voluminous material to the Board that he had not introduced before the Appeal Tribunal. More significantly, the record does not reflect that the Board afforded appellant an opportunity to respond to those materials, submit a brief, or make an oral argument.

The Board is authorized to prescribe rules concerning "[t]he manner in which disputed benefit claims, and appeals from determinations with respect to . . . claims for benefits . . . shall be presented . . . ." N.J.S.A. 43:21-6(f). N.J.A.C. 1:12 applies to unemployment benefit cases before the Board. N.J.A.C. 1:12-1.1. N.J.A.C. 1:12-14.3 provides that "appeals to the Board . . . may be heard upon the evidence in the record made before the appeal tribunal, or the Board . . . may direct the taking of additional evidence before it." N.J.A.C. 1:12-14.3(b) further provides, in pertinent part, that "[i]n the hearing of an appeal in the record, the Board . . . may limit the parties to oral argument or the filing of written argument, or both." (emphasis added).

Here, the Board acted well within its discretion, and in accordance with its own regulation, when it determined to hear the appeal based upon the evidence in the record made before the Appeal Tribunal. When the Board notified appellant that Dr. Fitzpatrick had appealed from the Appeal Tribunal decision, however, it did not afford her the opportunity to file a written argument. That omission was contrary to its own regulation, N.J.A.C. 1:12-14.3(b). The notice provided, in pertinent part:

NOTIFICATION OF APPEAL TO THE BOARD OF REVIEW

 

The attached communication has been received and is under consideration by the Board . . . as an appeal from the Appeal Tribunal decision cited above.

 

If the appeal is timely, the Board will evaluate the entire record including the cassette recording(s) of the Appeal Tribunal hearing and any written arguments submitted.

 

Moreover, please take notice that the Board hereby exercises its authority pursuant to N.J.S.A. 43:21-6(e) to take jurisdiction over any and all issues arising from the Appeal Tribunal decision regarding the determination(s) of the deputy/director.

 

When the review is completed, the decision of the Appeal Tribunal may be affirmed, reversed, remanded or another hearing date scheduled. All interested parties shall be advised of whatever action is taken in this matter at the earliest possible date.

 

The notice refers to "[t]he attached communication." Although the record before us is not entirely clear, the "attached communication" appears to be Dr. Fitzpatrick's four-page, single-spaced letter filing his appeal. That letter refers to supporting documents including his "written testimony, the testimonies of two relevant employees -- including the long-term temporary employee who made [appellant's] interim and varying schedule changes possible -- office staff meeting minutes, e-mail, and information derived from the social networking site, Facebook." Dr. Fitzpatrick's letter states that "[t]he largest source of evidence will be 151 pages of our office schedule reflecting a continuous period of time from just prior to [appellant's] employment until just after her decision to leave her position." The doctor apologized in his letter "for the volume of materials enclosed[.]" The Board may or may not have considered those materials. Regardless, appellant should have been afforded the opportunity to respond to the materials or to submit a written argument. Because she was not afforded the opportunity to do either, she may have reasonably perceived that the Board's reversal of the Appeal Tribunal's decision was based upon the voluminous material unilaterally submitted to the Board by Dr. Fitzpatrick, to which she had no opportunity to respond.

We recognize that the Board's decision presented in part, a question of law. Nonetheless, the factual basis of the decision involved a critical factual determination; namely, appellant's "leaving partial employment for no employment at all." Making that determination, the Board implicitly rejected appellant's testimony before the Appeal Tribunal that Dr. Fitzpatrick revoked his offer to employ her two days each week.

For these reasons, we reverse and remand to the Board. The Board should afford appellant the opportunity to submit a written argument. The Board should also clarify whether it will consider Dr. Fitzpatrick's voluminous documentary evidence. If so, appellant should be provided the opportunity to refute that evidence.

Appellant argues, "in the alternative," that she resigned for good cause due to a substantial change in her work conditions, namely, a substantial reduction in her wages. That reduction -- one-third of her weekly pay -- amounts to $312 each week. The Board counters that employees who resign due to dissatisfaction with hours of employment do not leave work for good cause. The Board also argues that an employer who reduces a part-time employees' hours, but does not require an employee to take a different job requiring lesser skill, does not provide the employee with good cause to quit and enter the ranks of the unemployed. Because appellant was not afforded the opportunity to address that issue before the Board, we decline to decide it. In so declining, we recognize the well-settled principle that "[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibilities is ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997). In view of that principle, it would be ill-advised to decide an administrative law issue when the administrative agency has not first decided the issue on a record that includes the arguments of the parties involved in the dispute before it.

Lastly, appellant argues that if disqualified for benefits, she should only be disqualified for four weeks. Whether that determination must be made depends upon, in the first instance, whether appellant is qualified or disqualified for unemployment benefits. In view of our decision to remand this matter to the Board, we need not address appellant's final argument.

R

eversed and remanded. We do not retain jurisdiction.