IRENE BRENNAN v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IRENE BRENNAN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, AND VERIZON COMMUNICATIONS,

Respondents.

_____________________________________________

January 30, 2014

Submitted November 13, 2013 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Board of Review, Department of Labor, Docket No. 255,324.

Irene Brennan, appellant pro se.

Genova Burns Giantomasi & Webster, attorneys for respondent Verizon Communications (Kathleen Barnett Einhorn, of counsel and on the brief).

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

PER CURIAM

Claimant Irene Brennan appeals the October 13, 2011 final decision of the Board of Review denying her request, pursuant to N.J.A.C. 12:17-14.2, for a waiver of the recovery of unemployment benefits that she received when she was ineligible. We affirm.

The record reflects that, as a result of a voluntary separation package she received from Verizon in 2003, Brennan initially received unemployment benefits, then was notified that she was ineligible for the benefits. She appealed, and the Board of Review found her ineligible to receive benefits as she had left work without good cause related to the work. We affirmed that decision on appeal. Tarzian v. Board of Review, A-0141-06 (App. Div. June 5, 2009). On January 30, 2006, the Department of Labor issued a Request for Refund of Unemployment Benefits in the amount of $12,532 because Brennan had received benefits even though she was ineligible. Brennan paid the refund in full in 2008.

Subsequently, Brennan requested a waiver of her obligation to repay the benefits. On September 28, 2009, the Director of the Division Of Unemployment Insurance in the Department of Labor (Director) denied the request, noting that the amount was paid in full, and recovery of the amount was "not patently contrary to principles of equity as defined by [N.J.A.C. 12:17-14.2]." On November 16, 2009, the Appeal Tribunal affirmed the determination of the Director. The Board of Review affirmed the Appeal Tribunal's decision.

Appellant appealed. At the request of the Board of Review, we remanded for the taking of additional testimony on the issue of the request for a waiver. Following a new hearing, the Appeal Tribunal again denied the request for a waiver. On October 13, 2011, the Board of Review affirmed the decision of the Appeal Tribunal. This appeal followed.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71-72 (1985) (citing Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).

Once a person has been disqualified from receiving unemployment benefits, the unemployment compensation statute requires repayment of any benefits received. N.J.S.A. 43:21-16(d)(1). Recoupment of "unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits[,]" protects the public and maintains a fund for those adversely affected by unemployment, rather than those who voluntarily choose to leave the workforce. Bannan v. Bd. Of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). "The public interest is clearly not served by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may be." Ibid.

Nonetheless, the Director may authorize a repayment waiver or payment plan if the claimant is deceased, disabled or where "the recovery of the overpayment would be 'patently contrary to the principles of equity.'" N.J.A.C. 12:17-14.2(d). In order to determine whether recovery would be "patently contrary to the principles of equity," the Director must determine "whether the terms of a reasonable repayment schedule would result in economic hardship to the claimant." Ibid. Here, the Board of Review twice considered Brennan's waiver request and determined that she was not eligible for one. We are satisfied that this determination was fully supported by the facts and applicable law.

Brennan does not claim disability or economic hardship. Rather, she requests that the Director consider "non-economic factors," which are not specified in the regulation. Her chief argument is that because the agency initially approved the receipt of benefits, it is inequitable for her to have to repay the benefits.

We recognize that Brennan did not act in bad faith in receiving the benefits, but she is still required to repay them. N.J.S.A. 43:21-16(d)(1). She has failed to put forth any ground for a waiver that is included in N.J.A.C. 12:17-14.2(d). We are compelled to affirm the agency decision unless it is arbitrary, capricious or unreasonable. Barry, supra, 100 N.J. at 71. We discern no reason to interfere with the Board's determination.

Affirmed.