DOROTHY MOORE v. BOARD OF REVIEW DEPARTMENT OF LABOR and BERGEN REGIONAL MEDICAL CENTER, LP

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4382-17T4

DOROTHY MOORE,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and BERGEN REGIONAL
MEDICAL CENTER, LP,

     Respondents.
__________________________

                    Submitted October 17, 2019 – Decided October 31, 2019

                    Before Judges Whipple and Mawla.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 077,190.

                    Dorothy Moore, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Alexis F.
                    Fedorchak, Deputy Attorney General, on the brief.)
             Respondent Bergen Regional Medical Center has not
             filed a brief.

PER CURIAM

      This matter returns after a remand to the Board of Review (Board). Claimant

Dorothy Moore appeals from the April 17, 2018 final agency decision of the Board

affirming the February 21, 2018 decision of an Appeal Tribunal (Tribunal), which

held claimant was ineligible for benefits from November 1, 2015, through October

29, 2016, under  N.J.S.A. 43:21-4(c)(1). We affirm.

      Moore worked for Bergen Regional Medical Center as a patient account

management representative from April 24, 2006, until September 25, 2015. She was

a representative of the union and often walked to work because it was near her house.

However, after death threats were leveled against Moore and her family over a

custody dispute, she resigned her position unexpectedly and moved out of state.

Before leaving, she filed a police report.

      Once settled in her new home out-of-state, Moore filed for unemployment

benefits on November 1, 2015, and submitted a total of four job applications online

between then and January 2016. The Deputy for the Director of the Division of

Unemployment Insurance denied her application for unemployment benefits on

December 3, 2015, finding Moore left work voluntarily without "good cause

attributable to the work."

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      Moore appealed to the Tribunal and participated in the telephonic hearing

conducted on January 12, 2016. At the telephonic hearing, Moore testified the

reason she left her job was because "on September 28th, in the middle of the night"

she, her son, and her grandchildren "packed up and . . . left [her] home" because her

grandchildren's mother made "death threats" against her and her family after Moore's

son, who lived with Moore, was awarded custody of the children. According to

Moore, although the children's mother had never resided with her on a permanent

basis, she lived with Moore for "a little more than a year off and on" before the

children were born. The death threats were under investigation by police in her

former New Jersey town; Moore testified that she sent a copy of the police report to

the unemployment office, and she agreed to send another copy to the Tribunal

examiner.

       N.J.S.A. 43:21-5(j), allows the payment of benefits to individuals who resign

from their employment "due to circumstances directly resulting from the individual

being a victim of domestic violence as defined in"  N.J.S.A. 2C:25-19. However,

after reviewing her assertions and relying on the fact that the children's mother never

lived with Moore on a permanent basis, the Tribunal determined that Moore did not

qualify for benefits under subsection (j). In its decision, the Tribunal used a

definition of a "[v]ictim of domestic violence" that predated amendments to N.J.S.A.


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2C:25-19(d) and determined that Moore did "not meet the qualifications of [t]he

New Jersey Code [o]f Criminal Justice 2C:25-19(d) and [was] therefore not eligible

for benefits under the statute." The Tribunal affirmed the determination of the

Deputy, concluding that because Moore "left work due to personal problems which

were neither caused by her employer nor the result of the nature of the work itself,"

Moore was disqualified under  N.J.S.A. 43:21-5(a) as she "left work voluntarily

without good cause attributable to such work." Moore appealed to the Board and in

a May 3, 2016 decision, the Board adopted the findings of the Tribunal and affirmed

the Tribunal's decision.

      We reversed and remanded because we determined Moore qualifies as a

victim of domestic violence under the current definition contained in  N.J.S.A.

2C:25-19(d). Moore v. Bd. of Review, No. A-4455-15 (App. Div. Aug. 25, 2017)

(slip op. at 9). On remand, the Board was to consider whether the police report

submitted to support Moore's claim was sufficient documentation as required under

 N.J.S.A. 43:21-5(j)(2), as well as to reconsider her eligibility for benefits. Moore,

slip op. at 9. However, we took no position as to what impact the Tribunal's

determination that Moore's work search was "academic" would have on claimant's

eligibility for benefits, since at that time it was not the primary basis for the Board's

decision. Moore, slip op. at 9 n.1.


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      In September 2017, the Board remanded the matter to the Appeals Tribunal

and a new hearing was held on October 20, 2017. During that hearing, Moore

testified further as to the time period her grandchildren's mother lived with her, as

well as to her limited search for work, which included her temporary retirement

beginning on February 7, 2016. The Tribunal mailed a decision disqualifying Moore

for benefits as of November 1, 2015, pursuant to  N.J.S.A. 43:21-5(a), because she

left work voluntarily without good cause attributable to work. Further, the Tribunal

found Moore ineligible for benefits from November 1, 2015 to October 29, 2016,

pursuant to  N.J.S.A. 43:21-4(c)(1), because she was not available for work and was

not actively seeking work. Moreover, the Tribunal found Moore did not qualify as

a domestic violence victim under  N.J.S.A. 2C:25-19(d) because the mother of her

grandchildren was not a "household member."

      Moore appealed to the Board, and in its decision the Board remanded the case

to the Tribunal for an additional finding regarding whether or not the police report

submitted by Moore was sufficient evidence to qualify her for benefits under

 N.J.S.A. 43:21-5(j)(2). Thereafter, a third hearing was conducted on February 21,

2018. On the same day, the Tribunal held Moore ineligible for unemployment

benefits under  N.J.S.A. 43:21-4(c)(1) during the relevant time period because she

was unavailable for work and had not actively sought work. The tribunal determined


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that even if Moore qualified as a victim of domestic violence, the work search and

availability requirements were not waived, and Moore did not meet either the

requirements of an active work search or sufficient availability for work in order to

maintain her eligibility for benefits. Moore appealed to the Board, and on April 17,

2018 the Board rejected the findings of the Tribunal as to Moore's status as a victim

of domestic violence, but adopted the conclusion of the Tribunal that Moore did not

otherwise meet the eligibility requirements under  N.J.S.A. 43:21-4(c)(1). This

appeal followed.

      On appeal, Moore argues it was difficult to look for work under the

circumstances of her age, health, lack of a driver's license, and her relocation to an

unfamiliar state.   She also asserts that she left her home under frightening

circumstances and did not imagine she would lose her benefits.

      As in any review of a final decision of an administrative agency, we will

sustain the administrative rulings if the findings could reasonably have been reached

on substantial credible evidence in the record, considering the proofs as a whole.

Ford v. Bd. of Review,  287 N.J. Super. 281, 283 (App. Div. 1996). We give due

regard to the ability of the administrative agency to judge credibility, as well as to

the expertise of the agency. We will "reverse the decision of the administrative

agency only if it is arbitrary, capricious or unreasonable or it is not supported by


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substantial credible evidence in the record as a whole." Henry v. Rahway State

Prison,  81 N.J. 571, 579-80 (1980).

      Although we are sympathetic to Moore's plight, we discern no error requiring

us to reverse the Board's decision. We therefore affirm the Board's determination.

The Board's alternate basis for denying appellant's unemployment benefits was her

failure to actively seek work pursuant to  N.J.S.A. 43:21-4(c)(1). This statute

provides that an individual is not eligible for unemployment compensation unless

the individual "is able to work, and is available for work, and has demonstrated to

be actively seeking work." Ford,  287 N.J. Super. at 284 (quoting  N.J.S.A. 43:21-

4(c)(1)). As for what constitutes actively seeking work, "reading want ads and

telephoning a few places" is not enough. Guidice v. Bd. of Review,  14 N.J. Super.
 335, 338 (App. Div. 1951) (citations omitted).

      Here, Moore's testimony in her three administrative hearings demonstrated

she was not available for work, nor was she actively seeking work, from November

1, 2015, through February 6, 2016, other than filling out a total of four online

applications. It was not until January 2016, two months after she applied for

unemployment benefits, that Moore began to look for work by calling employment

agencies in addition to searching online. She testified she was sixty-eight years old,

did not drive, was still afraid to go out and look for work because of the prior threats,


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and had even decided to retire temporarily on February 7, 2016. During the October

20, 2017 hearing, Moore confirmed to the hearing examiner she had retired as of

February 7, 2016, but that after discovering the man who threatened her was now

imprisoned for life without parole, felt safer and began sending out resumes again.

As a result of her diligent efforts, Moore had the good fortune of securing new

employment.

      Based on the substantial credible evidence in the record that appellant was not

seeking work pursuant to  N.J.S.A. 43:21-4(c)(1) during the relevant time period, and

that such a determination was not arbitrary, capricious, nor an abuse of discretion,

we affirm the decision Moore was ineligible for benefits from November 1, 2015

through February 6, 2016.

      Affirmed.




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