DANIELLE F. RUBESTELLO v. BOARD OF REVIEW DEPARTMENT OF LABOR and QUICKCONNECT.COM INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIELLE F. RUBESTELLO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and QUICKCONNECT.COM,

INC.,

Respondents.

- -

September 24, 2015

Before Judges Hoffman and Whipple.

On appeal from the Board of Review, Department of Labor, Docket No. 419,196.

Kristen Welsh Ragon argued the cause for appellant (Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys; Evan L. Goldman, on the brief).

Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Jenkins,on the brief).

Respondent Quickconnect.Com, Inc. has not filed a brief.

PER CURIAM

Claimant Danielle F. Rubestello appeals from a June 28, 2013 final decision of the Board of Review (Board), concluding that she was disqualified for unemployment benefits because she had left work voluntarily without good cause attributable to such work. We reverse.

Claimant worked for her employer as a client care representative from 2005 until January 2013. At the beginning of January 2013, claimant started experiencing depression. On January 24, 2013, claimant had a meeting with her employer's chief executive officer (CEO) and chief financial officer (CFO) concerning claimant s recent work performance.

Following the meeting, claimant had what she described as a "meltdown" and contacted her psychiatrist. Claimant attempted to call the CEO and CFO to inform them of the situation. When neither answered, she sent a text message, which stated

I'm sorry if I let you guys down, and appreciate all that you have done. I do know that I have not been myself and, honestly, can't explain why I can't tell you that . . . that everything I feel overwhelmed, and just had a breakdown when you guys left. My physic[ian] wants me in there now. I want you to lay me off and gonna discuss it with my physic[ian]. I think it would be best if you hire someone new and get a fresh start. I appreciate everything, am sorry.

Claimant proceeded to clean out her desk, and left her keys on the desk before leaving the office. Claimant said that the CEO sent her a text message later stating, "Well, we ll take this as your resignation." Claimant responded that she was not quitting. Regarding claimant's layoff request, the CFO responded by stating, No, there will not be a layoff and there s plenty of work here. Claimant attempted to call the CFO later that night to discuss the matter, but her call was not answered.

The following day, on January 25, 2013, claimant sent an email to the CFO captioned "Psychiatrist Note - Time Off & Employer Disability Form[.]" Attached to the email was a disability note from claimant's psychiatrist. The CFO did not respond to the email. On January 27, 2013, claimant followed up with the CFO to confirm receipt of the email.

Claimant filed for temporary disability benefits and her disability claim was approved. On February 14, 2013, claimant sent the CFO an email with an attached note from her psychiatrist indicating that she could return to work on February 18, 2013. The CFO responded on February 15, 2013, stating, "There is no need to update us as you quit on [January 24, 2013] as evidenced by leaving your keys, cleaning out your desk, asking us to go in another direction by hiring someone new and asking us to lay you off."

Upon receiving this response, claimant applied for unemployment benefits; however, her claim was denied because she was deemed to have left work voluntarily without good cause attributable to such work. Claimant filed an appeal. Following a hearing where claimant and the CFO testified, the Appeal Tribunal issued a decision reversing the denial of benefits, concluding that claimant did not leave work voluntarily without good cause attributable to such work.

The employer then appealed, and on June 28, 2013, the Board reversed the Appeal Tribunal, concluding, "The claimant demonstrated, through her actions, that she had no intention of returning to work." This appeal followed.

N.J.S.A. 43:21-5(a) provides that a person is disqualified from receiving unemployment benefits when he or she leaves work voluntarily without good cause attributable to such work. A claimant bears the "burden of establishing entitlement to unemployment compensation." Combs v. Bd. of Review, 269 N.J. Super. 616, 624 (App. Div. 1994) (citations omitted).

In general, an employee is disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a) if he or she makes a "departure not attributable" to his or her work. Self v. Bd. of Review, 91 N.J. 453, 457 (1982). However, an exception to this rule exists where an employee, unable to work because of illness, nevertheless makes an attempt to protect his or her employment. Ibid.; DeLorenzo v. Bd. of Review, 54 N.J. 361, 364 (1969).

In DeLorenzo, the claimant lost her job because of illness unrelated to the employment. Id. at 362. The Court classified her leaving as involuntary because she did not intend to quit her job on account of her illness; rather, she intended to work upon recovery. Id. at 363. The Court found that this was not a voluntary quit within the intent of the statute, N.J.S.A. 43:21-5(a), but found that the Board on remand had properly summarized the meaning of the statute

The Board of Review does not now hold that a failure to report for work because of illness (not attributable to the work) is itself a voluntary quit which disqualified the employee for benefits after recovery, even though he seeks to return to the job and is refused work.

The Board now holds that when an employee becomes ill and does those things reasonably calculated to protect the employment and, notwithstanding that she is not reinstated, there is no voluntary leaving of work. In these matters involving separation from employment for health reasons, the Board now holds that the disqualification arises only upon a finding that the employee, in fact, decided to terminate the employment because the work duties are detrimental to an existing physical condition or state of health which did not have a work connected origin.

[Id. at 364.]

Here, claimant left work after suffering a mental breakdown. She immediately went to her psychiatrist, who took her out of work due to her mental state. Confirming medical documentation was emailed to the employer the next day. Thereafter, claimant attempted to maintain contact with her employer but received no response to numerous emails and phone messages. The record supports the finding of the Appeal Tribunal that "[t]he claimant did not have intentions on leaving the job, which was evidenced by her contact to the employer the following day and her repeated attempts to contact the employer with no response."

While we ordinarily accord a strong presumption of reasonableness to the decision of an administrative agency, Smith v. Ricci, 89 N.J. 514, 525 (1982), we will reverse when it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980) (citation omitted).

In this case, we do not find substantial credible evidence in the record to support the Board's conclusion that claimant intended to leave her job or provided notice of her resignation. Instead, the record supports the conclusion of the Appeal Tribunal that claimant did not intend to leave her job. The Board failed to address the undisputed evidence of claimant's medical condition or consider claimant's conduct in light of this condition. Accordingly, the decision of the Board is reversed.

Reversed.