CHERYL A. STOLBA 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NOT FOR PUBLICATION WITHOUT THE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

CHERYL A. STOLBA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

Respondent,

and

GENTLE DENTAL CARE, L.L.C.,

Defendant.

________________________________________________

January 28, 2014

Submitted December 17, 2013 Decided

Before Judges Messano and Hayden.

On appeal from the Board of Review, Department of Labor, 341,623.

Cheryl A. Stolba, appellant, pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

PER CURIAM

Cheryl A. Stolba appeals from the final decision of the Board of Review (the Board) that affirmed the decision of the Appeal Tribunal (the Tribunal) finding Stolba ineligible for unemployment benefits because she left work voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). We affirm.

The record reveals that Stolba was a dental hygienist at Gentle Dental Care (GDC), which employed twenty employees, when she took time off to care for family members who faced serious health problems. Stolba was out of work from April 14, 2011, until May 29, 2011. When she attempted to return to work, GDC notified her that it had filled her position with another employee. Stolba applied for unemployment benefits, and the Deputy Director of the Division of Unemployment and Disability (the Director) found her ineligible. She appealed, and a telephonic hearing occurred before the Tribunal on September 9, 2011.

Stolba testified that GDC advised her to take family leave because she was missing too much time at work. She applied for and received temporary disability effective April 14, 2011, the first day she missed work. Although GDC told her they could not hold her job for more than three weeks, she was unable to return to work for a total of six weeks. Stolba acknowledged that GDC had no obligation to keep her position vacant, but she "expected" it would.

In its decision dated September 13, 2011, the Tribunal determined that Stolba knew GDC would hold her job open for only three weeks. As a result, the Tribunal determined Stolba was disqualified from receiving unemployment benefits pursuant to N.J.S.A. 43:21-5(a), because she left work for personal reasons unconnected with her employment.

The Tribunal further noted that pursuant to N.J.S.A. 43:21-39.1, an employee who leaves work pursuant to New Jersey s Family Leave Act, N.J.S.A. 34:11B-1 to -16, was required to obtain temporary disability benefits concurrently with any approved leave. Stolba obtained those benefits, but GDC was not required by statute to hold her position open for six weeks. See N.J.S.A. 34:11B-3(f)(3) (defining "employer" for purposes of the Family Leave Act as one who "employs [fifty] or more employees for each working day during each of [twenty] or more calendar workweeks"). Knowing GDC would only hold her position open for three weeks, Stolba did not return to work for six weeks. The Tribunal determined her decision was "personal" and not connected to her employment.

As a result, the Tribunal determined Stolba was not eligible for unemployment benefits because she left work voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). The Tribunal affirmed the Deputy's decision, and the Board, in turn, affirmed the Tribunal's determination. This appeal followed.

Stolba argues that she was misled by GDC because, although it advised her that it could only hold her job for three weeks, it also assured her that she would still have her position after six weeks. She notes that twice in the past, GDC, although under no obligation, held her position open after her Family Leave temporary disability benefits were exhausted. She contends that based upon these prior experiences, and other assurances made by GDC, she believed she could still return to her position after six weeks elapsed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing 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)). "If the Board's factual findings are supported by sufficient credible evidence, [we] are obliged to accept them." Brady, supra, 152 N.J. at 210 (quotations and citations omitted); Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

N.J.S.A. 43:21-5(a) provides that "[a]n 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 . . . ." An employee who leaves work voluntarily has the burden of demonstrating that she did so with good cause that was attributable to her work. Morgan v. Bd. Of Review, 77 N.J. Super. 209, 213 (App. Div. 1962).

Contrary to Stolba's assertion that she did not "voluntarily" leave her employment, the Tribunal, and in turn the Board, specifically found that Stolba was aware beforehand that GDC was not required to keep her position open for the full six weeks she remained away from her job. This conclusion was reached after assessing the credibility of Stolba's own testimony, and consequently it is entitled to our deference. See Logan v. Board of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) ("The appellate court must also give due regard to the opportunity of the one who heard the witnesses to judge their credibility.") (citation omitted); and see N.J.A.C. 12:17-9.1(e)(2) (providing that a separation from work "shall be reviewed as a voluntarily leaving work issue where the separation [is] for . . . [c]are of children or other relatives").

In short, while we are sympathetic to Stolba's personal circumstances and the obvious difficulties she faced, an employee who leaves "for personal reasons, however compelling, . . . is disqualified under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544 (2008). The Board's decision to deny Stolba unemployment benefits was not "arbitrary, capricious or unreasonable." Brady, supra, 152 N.J. at 210.

Affirmed.