ZAHIRAH N. HEMINGWAY v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0760-16T4

ZAHIRAH N. HEMINGWAY,

        Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR and AJS SUPERMARKETS,
LLC,

     Respondents.
_____________________________

              Submitted May 2, 2018 – Decided May 23, 2018

              Before Judges Nugent and Geiger.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              088,574.

              Zahirah Hemingway, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Nicholas Logothetis, Deputy Attorney General,
              on the brief).

              Respondent AJS       Supermarkets,      LLC,   has   not
              filed a brief.

PER CURIAM
       Appellant Zahirah N. Hemingway appeals from a final agency

decision of the Board of Review dated September 27, 2016.               The

Board   of   Review   affirmed   the   Appeal   Tribunal's   determination

denying Hemingway's application for unemployment benefits.                We

affirm.

       Respondent AJS Supermarkets, LLC, (AJS) employed Hemingway

as a part-time cashier beginning February 23, 2015.           On March 6,

2016, Hemingway received a written notice that she was suspended

indefinitely, pending termination, because her cash register was

short $9.58 the previous day, which was considered excessive.              A

shop steward was present when Hemingway received the notice.

       Under their union contract, AJS employees can be suspended

indefinitely but not for a fixed period of time.                 Following

suspension, the employee may contact the union to set up a meeting

to grieve the suspension.        The union representative then contacts

an AJS representative to schedule the meeting.

       Hemingway was familiar with this grievance process, having

previously grieved three disciplinary actions while employed by

AJS.    Despite her familiarity with the grievance process, neither

Hemingway nor the union contacted AJS to schedule a meeting to

grieve the disciplinary action. As a result, AJS assumed Hemingway

was no longer interested in working for them.



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      On March 13, 2016, Hemingway filed for unemployment benefits.

In an April 25, 2016 decision, the Deputy Director of the Division

of Unemployment and Disability Insurance (the Division) found

Hemingway was entitled to unemployment benefits commencing March

13, 2016.

      AJS appealed to the Appeal Tribunal, which held a hearing on

July 13, 2016.          During the hearing, Hemingway argued AJS had

terminated her employment and she had attempted to grieve the

termination by calling the union, but the representative told her

there was nothing the union could do for her because she was on

"final correct[ive]."          Rather than advising the union she wanted

to   formally       grieve   the    disciplinary       action,   Hemingway     "just

accepted it."

      Under     AJS's    disciplinary      policy,      an   employee    can     face

termination if he or she commits an additional violation or

repeated violations.         If the "employee grieves [the violation] and

the union feels [the violation is] not severe enough, then [the

employee] may go back on non-final corrective."

      In a July 19, 2016 decision,                the Appeal Tribunal noted

Hemingway     "had    previously      received    in    excess   of    six   written

warnings      for    similar       infractions,    including      an    indefinite

suspension."        The Appeal Tribunal found Hemingway was aware of the

process for disputing the indefinite suspension, having done so

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previously on multiple prior occasions.            The Appeal Tribunal

concluded:

           Following the suspension on [March 6, 2016],
           the claimant and her union representation
           declined to grieve the suspension, and the
           claimant was considered to have been separated
           from employment after failing to attempt to
           return from that indefinite suspension. Had
           the claimant attempted to return to work by
           grieving the suspension, the claimant may have
           returned to work . . . .

The Appeal Tribunal further found the March 6, 2016 indefinite

suspension was not a discharge and Hemingway was "obligated to

initiate her return to work" but declined to do so "[a]fter meeting

resistance from her union representation, due to the volume of the

claimant's infractions during the time with [AJS]."          The Appeal

Tribunal   rejected   Hemingway's   contentions,    determining,     "[i]n

failing to grieve the indefinite suspension, the claimant in effect

severed her employment with [AJS]" and had "left work voluntarily

without good cause attributable to the work."

     The     Appeal   Tribunal   reversed   the     Deputy   Director's

determination and found Hemingway was disqualified for benefits

under 
N.J.S.A. 43:21-5(a) as of March 6, 2016. The Appeal Tribunal

remanded the issue of potential liability for a refund of benefits

to the Deputy Director for an initial determination.

     Hemingway appealed to the Board of Review.       On September 27,

2016, the Board affirmed the decision of the Appeal Tribunal but

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corrected the separating employer from Staff Management Group, LLC

to AJS.   This appeal followed.

     On appeal, Hemingway argues her March 6, 2016 indefinite

suspension amounted to a discharge.       She further argues, had the

Deputy Director followed proper protocol, she would not have been

initially approved for unemployment benefits and would not be

obligated to reimburse the unemployment benefits she received.

     We   exercise     limited   review   of    administrative        agency

decisions.   Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997).              We

simply determine whether the administrative decision is arbitrary,

capricious, or unreasonable.      Henry v. Rahway State Prison, 
81 N.J. 571, 579-80 (1980). The burden of proof rests with the person

challenging the action.     In re Arenas, 
385 N.J. Super. 440, 443-

44 (App. Div. 2006).    An individual seeking unemployment benefits,

bears the burden of proving he or she is entitled to receive them.

Brady, 
152 N.J. at 218; Bonilla v. Bd. of Review, 
337 N.J. Super.
 612, 615 (App. Div. 2001).

     In   matters    involving   unemployment    benefits,    we      accord

deference to the expertise of the Board of Review.      See Brady, 
152 N.J. at 210.   We must accept the Board of Review's findings if

they are supported by sufficient credible evidence.          Ibid.

     Unemployment compensation exists "to provide some income for

the worker earning nothing because he is out of work through no

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fault or act of his own."       Futterman v. Bd. of Review, 
421 N.J.

Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady,


152 N.J. at 212).    An individual is disqualified from unemployment

benefits "[f]or the week in which the individual has left work

voluntarily without good cause attributable to such work, and for

each week thereafter until the individual becomes reemployed and

works eight weeks in employment."        
N.J.S.A. 43:21-5(a).

       An employee who has left work voluntarily has the burden of

proving she did so with good cause attributable to the work.

Brady, 
152 N.J. at 218; Domenico v. Bd. of Review, 
192 N.J. Super.
 284,    287-88   (App.   Div.   1983).      "[I]t   is   the   employee's

responsibility to do what is necessary and reasonable in order to

remain employed."    Domenico, 
192 N.J. Super. at 288 (citing Condo

v. Bd. of Review, 
158 N.J. Super. 172, 175 (App. Div. 1978)).

"Evidence of a claimant's failure to seek redress of his grievances

before quitting, including failure to press his right to pursue a

grievance procedure, is certainly relevant and probative on the

bona fides of his claim."       Stonco Electr. Prods. Co. v. Bd. of

Review, 
106 N.J. Super. 6, 10 (App. Div. 1969).

       Applying these principles, we affirm substantially for the

reasons expressed by the Appeal Tribunal in its written decision.

We add the following comments.



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     The decision of the Board of Review was not arbitrary,

capricious, or unreasonable and is amply supported by substantial,

credible evidence in the record.    After receiving the notice of

indefinite suspension, Hemingway did not contact AJS to grieve her

suspension.   Considering her disciplinary and grievance history

with AJS, Hemingway should not have viewed the March 6, 2016

suspension notice as a discharge.      By failing to grieve the

indefinite suspension, Hemingway did not do what is necessary and

reasonable in order to remain employed.   She did not demonstrate

she left work with good cause attributable to the work.

     Hemingway's remaining argument is without sufficient merit

to warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).

     Affirmed.




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