THERESA J. FERRIOLA 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NOT FOR PUBLICATION WITHOUT THE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

THERESA J. FERRIOLA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and VERIZON

CORPORATE SERVICES CORP.,

Respondents.

________________________________________________________________

April 15, 2014

Submitted March 4, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from the Board of Review, Department of Labor, Docket No. 376,004.

Theresa J. Ferriola, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

Genova Burns Giantomasi Webster LLC, attorneys for respondent Verizon Corporate Services Corp. (Kathleen Barnett Einhorn, of counsel and on the brief; Eugene H. Kim, on the brief).

PER CURIAM

Theresa J. Ferriola appeals from a final decision of the Board of Review that she was ineligible for unemployment benefits. We affirm.

Ferriola was employed as a storekeeper by Verizon Corporate Services Corp. (Verizon) from approximately June 15, 2007, through August 28, 2011. It is undisputed that a prerequisite for this position is a valid driver's license. In September 2009, Ferriola's driving privileges were suspended for a period of ten years following her conviction for driving while intoxicated (DWI). Pursuant to Verizon policy, Ferriola was permitted a period of time to find alternative employment within the company that did not require a valid driver's license, but these efforts proved to be unsuccessful. As a result, Ferriola's employment was terminated as of August 28, 2011.

Ferriola applied for and received unemployment benefits. However, the Deputy Director of the Division of Unemployment and Disability Insurance later determined that she was disqualified for benefits from August 14, 2011, because she left work voluntarily without good cause attributable to the work. The Deputy Director further found Ferriola liable for a refund of $11,990, the amount of benefits received for the weeks ending August 20, 2011, through January 14, 2012, pursuant to N.J.S.A. 43:21-16(d). Ferriola appealed these determinations and, following a telephone hearing, the Appeals Tribunal held that Ferriola was disqualified for benefits under N.J.S.A. 43:21-5(a) because the loss of her driving privileges due to her DWI conviction constituted voluntarily leaving her employment without good cause attributable to her work. However, the Appeal Tribunal reduced the period of disqualification, which lowered the amount of the required refund to $10,900. This decision was affirmed by the Board of Review.

In this appeal, Ferriola argues that the procedure followed by the Department of Labor violated her right to procedural due process. She contends the hearing was unfair because she was "unaware of the statutes going to be used against her." She states the notice of the hearing conducted by telephone listed the issues to be addressed as misconduct, severe misconduct, non-fraud refund, and voluntary leaving. She argues this notice did not adequately apprise her as to the meaning of "voluntary leaving" and that the hearing did not address the "non-fraud refund." However, she has not identified any evidence that she was unable to present at the hearing that would have led to a different result.1 Because we find that appellant received adequate notice and a fair opportunity to be heard, Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992), we find no violation of her right to procedural due process. Any further elaboration of the meaning of the terms listed in the notice or the consequences of the refund issue could have been obtained through a review of applicable statutes and regulations.

Ferriola also argues that it was unwarranted and unreasonable for Verizon to dismiss her and not permit her to accept a lower-level clerk position that was available. However, Verizon submitted testimony that the position required an applicant to pass a written and oral examination, which Ferriola failed to pass. Therefore, she was not qualified for the position.

N.J.S.A. 43:21-5(a) disqualifies a claimant from receiving unemployment benefits if the employee "has left work voluntarily without good cause attributable to such work." N.J.A.C. 12:17-9.10(a) states:

If an individual is discharged due to the loss of a prerequisite license which is necessary to perform the duties of his or her employment, such discharge shall subject the individual to disqualification for benefits for voluntarily leaving work if he or she engaged in an act which resulted in the loss of the license.

The facts giving rise to the application of the disqualification here pursuant to N.J.A.C. 12:17-9.10(a) are undisputed. It was Ferriola's burden to establish her entitlement to collect unemployment benefits, Brady v. Bd. of Review, 152 N.J. 197, 218 (1997), a burden she clearly failed to meet here. We therefore conclude that the Board's decision was not arbitrary, capricious, or unreasonable and had adequate support in the record. See id. at 210-11.

1 Although Ferriola cites N.J.A.C. 12:17-14.2, which permits a waiver of the recovery of an overpayment of benefits, she did not request such a waiver at the hearing.