SEB REALTY CORP v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and ELAINE R. THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5084-06T35084-06T3

SEB REALTY CORP.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR, and ELAINE R. THOMAS,

Respondents.

_________________________________

 

Submitted: August 27, 2008 - Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Board of Review, Department of Labor, Docket No. 141,277.

Laurence J. Bravman, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

Respondent Elaine R. Thomas has not filed a brief.

PER CURIAM

Appellant SEB Realty (Realty), the former employer of Elaine R. Thomas (Thomas), appeals from the final agency action of the Board of Review (Board) affirming the March 9, 2007, decision of the Appeal Tribunal, who concluded that Thomas did not leave work voluntarily without good cause attributable to the work and affirmed the award of unemployment benefits to her. We affirm the determination of the Board of Review.

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:

(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 apply ing the legislative policies to the facts, the agency clearly erred in reaching a con clusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Const. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreason able." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the find ings of the agency could have been reached on the credible evi dence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)). Here, in essence, Realty denies that "the record contains sub stantial evidence to support the findings on which the agency based its action." George Harms Const., supra, 137 N.J. at 27. We thus review the record for substantial evidence supporting the agency's final action.

Realty first employed Thomas in January 2001. On June 7, 2006, Thomas underwent heart surgery and then was on a medical leave of absence. Three days after this surgery, Realty filled Thomas's position as the leasing agent at Woodmere Apartments. Although Realty's president, Steven Breitman, testified that Thomas considered retiring at some point, it was undisputed that she returned to work on a part-time basis at The Heathers, another property owned by Realty, on September 25, 2006. Although Thomas expressed a desire to return to the Woodmere Apartments, she was told that the agent working at Woodmere was going to remain there. Two days later, she became ill again and underwent gall bladder surgery. On the day of the surgery, Thomas called her manager, Judy McKinney, and advised her that she would return to work in about one week.

Thomas was discharged from the hospital on October 1, 2006, and went to see McKinney two days later. McKinney asked Thomas whether, in light of her age, she was planning to retire. McKinney had never made an inquiry like this previously. Thomas replied that she could not afford to retire completely. One week later, Thomas reminded McKinney that she wanted to return to work but her doctor would not yet let her do so on a fulltime basis. McKinney again suggested that Thomas should consider retiring, but Thomas insisted that she wanted to return to work. At some point, McKinney told Thomas that there was no work available for her, but agreed to speak with Breitman about the possibility of future part-time work. At the annual holiday party in December, Thomas told Breitman's son that she still wanted to return to work.

On December 17, 2006, Thomas filed a claim for unemployment benefits because she had been told there was no work available. She testified that as of that date she was ready to return to work even though her physician would not clear her for unre stricted fulltime duties until January 3, 2007. On January 4, 2007, Thomas again contacted McKinney seeking work but she told Thomas that there was nothing available. Thomas continued to contact Realty on a weekly basis thereafter and each time was told that there was nothing available yet.

Realty argues that the evidence at the hearing estab lished that Thomas was not cleared to return to work without restrictions until January 3, 2007. Thus, it urges that Thomas was "medically unable to work" on December 17, 2006, when she filed for unemployment benefits. Realty also argues that the evidence established that Thomas did not speak to McKinney between October 3 and the 2006 holiday party at which, it con tends, Thomas told Breitman that she was enjoying retirement. As a consequence, it urges that Thomas was disqualified from receiving unemployment benefits as a result of her voluntary retirement.

The public policy behind the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, is to provide "protection against the hazards of economic insecurity due to involuntary unemploy ment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989). The Law provides in pertinent part that an individual is disqualified for benefits "[f]or the week in which the indi vidual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate." N.J.S.A. 43:21-5(a).

An employee who leaves work voluntarily has the burden to prove that he or she did so for good cause attributable to that work in order to qualify for benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). On the other hand, where an employee is out of work "through no fault or act of his own," the employee is entitled to benefits. Schock v. Bd. of Review, 89 N.J. Super. 118, 125 (App. Div. 1965) (quoting Battaglia v. Bd. of Review, 14 N.J. Super. 24, 27 (App. Div. 1951)). The Board concluded here that Thomas was out of work involuntarily.

Clearly, there were disputes in the evidence before the Appeal Tribunal. First, Breitman testified that McKinney told him that Thomas voluntarily retired. Thomas, on the other hand, testified that she never told this to McKinney and could not afford to retire. The Appeal Tribunal resolved this dispute adversely to Realty.

Second, Breitman asserted that Thomas was not medically cleared to return to work without restrictions until January 3, 2007, but admitted that her separation date was in December. Thomas testified that she was ready, able and willing to return to work at least on a part-time basis before that date but was told that there was no work. Accepting the doctor's note as establishing the date when Thomas was able to return to work, and accepting that the separation date for Thomas was in Decem ber, the Appeal Tribunal concluded that Realty discharged Thomas while she was too disabled to work.

We also note that Breitman did not dispute that Realty had no work for Thomas on December 17, 2006, when she first applied for unemployment benefits; on January 4, 2007, when she again called about returning to work; and at any time thereafter as she continued to call about returning to work.

Thus, we are satisfied that there was substantial evidence in the record to support the conclusion of the Board that Thomas was qualified to receive unemployment benefits.

Affirmed.

(continued)

(continued)

7

A-5084-06T3

October 3, 2008