CHERYL L. COBB 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NOT FOR PUBLICATION WITHOUT THE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-2423-11T1

CHERYL L. COBB,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR AND EAST ORANGE CHILD

DEVELOPMENT CORPORATION,

Respondents.

__________________________________________________

April 18, 2013

Submitted April 9, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from the Board of Review, Department of Labor, Docket No. 322,684.

Cheryl Cobb, appellant pro se.

Jeffrey S. Chiesa, Attorney General for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

PER CURIAM

Claimant Cheryl L. Cobb appeals from a final order of the Board of Review (Board) finding her ineligible for emergency unemployment compensation (EUC) benefits. We affirm.

Claimant worked at the East Orange Child Development Corporation from October 28, 1991 to September 30, 2010. Due to a serious accident, she was unable to work and remained on disability leave from July 1, 2009 until March 1, 2010. When she returned to work, her previous position as disabilities coordinator was no longer available, and her employer offered her another position with a lower salary. Claimant took the position and worked until September 30, 2010, when the employer eliminated her position due to funding problems.

Claimant filed for unemployment benefits on October 10, 2010. The claim established a base year of July 1, 2009 through June 30, 2010, and a weekly benefit rate of $428. During the base year period, she worked eighteen base weeks and earned a total of $10,713.35. On January 23, 2011, after her regular benefits ran out, she applied for extended benefits under the EUC program. Because she worked for less than twenty base weeks during the base year and her earnings totaled less than forty times her weekly benefit rate, the Deputy to the Division Director denied her EUC claim.

Claimant appealed, and, after a hearing, the Appeal Tribunal affirmed the Deputy's determination. On June 3, 2011, claimant appealed that decision to the Board, which also affirmed on the basis that she failed to establish the requisite base weeks or earnings during the base year period. This appeal follows.

The EUC program provides that to be eligible for emergency unemployment benefits, an individual must have at least twenty base weeks or have been paid wages which equals or exceeds forty times the weekly benefit rate during the base year. Emergency Unemployment Compensation Act of 2008, Pub. L. No. 110-252, 4001, Title IV, 122 Stat. 2323 (June 30, 2008) (the EUCA).1 The twenty base weeks needed for EUC benefits are calculated from "the base period with respect to which the individual exhausted all rights to regular compensation under the State law." Ibid. "Base week" is defined in this State as any calendar week during which the individual earned wages not less than an amount twenty times the minimum wage. N.J.S.A. 43:21-19(t)(3). For the applicable base year, a base week was any week where a minimum of $145 was earned. See 38 N.J.R. 3487(a); N.J.A.C. 12:15-1.5.

Claimant contends that she would be eligible for EUC benefits if an "alternative base period" was used to calculate her base period. She argues that since she did not qualify for EUC under the base year established for her regular benefits, the deputy should have used an alternative base period because of her inability to work during the regular base period. We cannot agree.

A base year for unemployment compensation benefit calculations is "the first four of the last five completed calendar quarters immediately preceeding an individual's benefit year." N.J.S.A. 43:21-19(c)(1). The option of designating an "alternative base year" is only available if one's wages are insufficient to qualify for benefits under the ordinary base year period. Ibid. Claimant qualified for benefits during the base year period of July 1, 2009 to June 30, 2010 because her earnings, $10,713.35, totaled more than 1000 times the minimum wage. See N.J.A.C. 12:17-5.1(a). As a result, she had no need to establish an alternative base year. Moreover, when claimant exhausted her regular benefits available under the regular base year period, the EUCA mandated that her EUC eligibility be calculated from that period, during which she worked less than the minimum requisite base weeks.

Furthermore, claimant did not satisfy the alternative requirement for EUC eligibility, namely, that she earn wages equal to or exceeding forty times the weekly benefit rate during the base year. That amount here, based on claimant's weekly benefit rate of $428, would total $17,120. In contrast, claimant only earned $10,713.35 in wages during the base year and as such, did not meet the minimum eligibility requirement.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting 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. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). 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 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. Brady v. Bd. Of Review, 152 N.J. 197, 210-11 (1997).

Applying these principles, we conclude the Board's determination of claimant's ineligibility for EUC benefits is supported by sufficient credible evidence in the record, McGowan, supra, 347 N.J. Super. at 563, and fully comports with applicable law.

Affirmed.

1 The Act appears as a note to 26 U.S.C.A. 3304, which it amends.