DOROTHY MOORE VS. BOARD OF REVIEWÂ (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4455-15T4
DOROTHY MOORE,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR, and
BERGEN REGIONAL MEDICAL
CENTER LP,
Respondents.
___________________________
Submitted June 7, 2017 – Decided August 25, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Board of Review, Department
of Labor, Docket No. 077,190.
Dorothy Moore, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Elizabeth A. Davies,
Deputy Attorney General, on the brief).
Respondent Bergen Regional Medical Center LP
has not filed a brief.
PER CURIAM
Appellant Dorothy Moore appeals from the May 3, 2016 final
agency decision of respondent Board of Review (Board) affirming
the January 21, 2016 decision of the Appeal Tribunal (Tribunal).
The Tribunal determined that Moore was disqualified for
unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because she
left work at Bergen Regional Medical Center, LP (Bergen Regional)
"voluntarily without good cause attributable to the work." We
remand to allow the Board to determine whether the police report
submitted to support her claim for an exemption under N.J.S.A.
43:21-5(j) was sufficient documentation as required under N.J.S.A.
43:21-5(j)(2).
I.
We derive the following facts from the record. Moore worked
for Bergen Regional as a patients account management
representative from April 24, 2006 until September 25, 2015, when
she resigned her position and moved out of state. After moving,
Moore filed for unemployment benefits on November 1, 2015, and
submitted a total of four job applications since filing for
benefits, ultimately deciding to retire at age sixty-eight.
The Deputy for the Director of the Division of Unemployment
Insurance denied Moore's application for unemployment benefits on
December 3, 2015, on the ground that Moore left work voluntarily
without "good cause attributable to the work." Moore appealed to
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the Tribunal on December 9, 2015 and participated in the telephonic
hearing conducted on January 12, 2016. At the telephonic hearing,
Moore testified that "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.
According to Moore, although the children's mother had never
resided with her on a permanent basis, before the children were
born, she lived with her for "a little more than a year off and
on." Moore testified that her son lived with her and was awarded
custody of the two children on June 24, 2013. According to Moore,
they reported the threats to the police and the case was under
investigation by the Pennsylvania State Police. Although Moore
testified that a copy of the police report had been sent to the
unemployment office, she agreed to send another copy to the
Tribunal examiner.
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 N.J.S.A. 43:21-5(j),
which 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. In its decision, the Tribunal quoted the
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pre-amendment definition of a "[v]ictim of domestic violence"
contained in N.J.S.A. 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 filed a timely appeal to the
Board. In a May 3, 2016 decision, the Board adopted the findings
of the Tribunal and affirmed the Tribunal's decision on the basis
of the record below. This appeal followed.
II.
Our review of an administrative agency decision is limited.
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "[I]n reviewing
the factual findings made in an unemployment compensation
proceeding, the test is not whether [we] would come to the same
conclusion if the original determination was [ours] to make, but
rather whether the factfinder could reasonably so conclude upon
the proofs." Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.
Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings
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are supported 'by sufficient credible evidence, [we] are obliged
to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J.
453, 459 (1982)). We also give due regard to the agency's
credibility findings. Logan v. Bd. of Review, 299 N.J. Super.
346, 348 (App. Div. 1997). "Unless . . . the agency's action was
arbitrary, capricious, or unreasonable, the agency's ruling should
not be disturbed." Brady, supra, 152 N.J. at 210.
Moreover, we "give considerable weight to a state agency's
interpretation of a statutory scheme that the legislature has
entrusted to the agency to administer." In re Election Law
Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262
(2010). "We will defer to an agency's interpretation of both a
statute and implementing regulation, within the sphere of the
agency's authority, unless the interpretation is 'plainly
unreasonable.'" Ibid. (citation omitted). Although we "must
give deference to the agency's findings of facts, and some
deference to its 'interpretation of statutes and regulations
within its implementing and enforcing responsibility,' we are 'in
no way bound by the agency's interpretation of a statute or its
determination of a strictly legal issue.'" Utley v. Bd. of Review,
Dep't of Labor, 194 N.J. 534, 551 (2008) (citations omitted).
"Thus, to the extent [the agency's] determination constitutes a
5 A-4455-15T4
legal conclusion, we review it de novo." Lavezzi v. State, 219
N.J. 163, 172 (2014).
An individual is disqualified for 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 bears the burden of proving that he or she
"did so with good cause attributable to work." Brady, supra, 152
N.J. at 218 (citation omitted); N.J.A.C. 12:17-9.1(c).
"While the statute does not define 'good cause,' our courts
have construed the statute to mean 'cause sufficient to justify
an employee's voluntarily leaving the ranks of the employed and
joining the ranks of the unemployed.'" Domenico v. Bd. of Review,
192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd.
of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). Also,
N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such
work" as "a reason related directly to the individual's employment,
which was so compelling as to give the individual no choice but
to leave the employment."
An employee who leaves work for good, but personal, reasons
is not deemed to have left work voluntarily with good cause,
Brady, supra, 152 N.J. at 213, and is subject to disqualification
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under N.J.S.A. 43:21-5(a). Morgan v. Bd. of Review, 77 N.J. Super.
209, 214 (App. Div. 1962).
Mere dissatisfaction with working conditions
which are not shown to be abnormal or do not
affect health, does not constitute good cause
for leaving work voluntarily. The decision
to leave employment must be compelled by real,
substantial and reasonable circumstances not
imaginary, trifling and whimsical ones. . . .
[I]t is the employee's responsibility to do
what is necessary and reasonable in order to
remain employed.
[Domenico, supra, 192 N.J. Super. at 288
(citations omitted).]
However, N.J.S.A. 43:21-5(j) provides an exception to an
ineligibility determination for victims of domestic violence as
follows:
Notwithstanding any other provisions of
this chapter . . . , no otherwise eligible
individual shall be denied benefits because
the individual left work or was discharged due
to circumstances resulting from the individual
being a victim of domestic violence as defined
in [N.J.S.A. 2C:25-19(c)]. . . .
For the purposes of this subsection . . . ,
the individual shall be treated as being a
victim of domestic violence if the individual
provides one or more of the following:
(1) A restraining order or other
documentation of equitable relief issued by a
court of competent jurisdiction;
(2) A police record documenting the domestic
violence;
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(3) Documentation that the perpetrator of the
domestic violence has been convicted of one
or more of the offenses enumerated in
[N.J.S.A. 2C:25-19];
(4) Medical documentation of the domestic
violence;
(5) Certification from a certified Domestic
Violence Specialist or the director of a
designated domestic violence agency that the
individual is a victim of domestic violence;
or
(6) Other documentation or certification of
the domestic violence provided by a social
worker, member of the clergy, shelter worker
or other professional who has assisted the
individual in dealing with the domestic
violence.
"Domestic violence" includes terroristic threats or "[a]ny
other crime involving risk of death or serious bodily injury to a
person protected under the 'Prevention of Domestic Violence
Act[.]'" N.J.S.A. 2C:25-19(a). The recent amendments to the Act,
which became effective August 10, 2015, expanded the protections
afforded under the Act and expanded the definition of those
protected under the Act by changing the phrase "former household
member" to include a person subjected to domestic violence by any
person who "was at any time a household member." See L. 2015, c.
98, § 2, eff. Aug. 10, 2015. Recently, we held that the new
definition widened the net of cases falling within the Act's
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jurisdiction. R.G. v. R.G., 449 N.J. Super. 208, 219-20 (App.
Div. 2017).
Clearly, Moore qualifies as a victim of domestic violence
under the current definition contained in N.J.S.A. 2C:25-19(d).
However, applying the pre-amendment definition, the Board
concluded that Moore did "not meet the requirements laid out to
be classified as a 'victim of domestic violence'" because she
testified that "the mother of her grandchildren had never had a
permanent residence with her." We conclude the Board
misinterpreted the Act when it found that Moore did not qualify
as a victim of domestic violence. Because Moore qualifies as a
victim of domestic violence, as she had been a household member
with her grandchildren's mother, the issue then becomes whether
the police report submitted to support her claim was sufficient
documentation as required under N.J.S.A. 43:21-5(j)(2). Because
the Board did not address that issue, a remand is warranted for
the Board to develop the record further and reconsider Moore's
eligibility for unemployment benefits.1
1
Noting that it was "academic," the Tribunal also determined that
Moore's "work search since filing her claim for benefits [was] not
active as required by unemployment law to avoid an ineligibility"
determination. Because this determination was not the primary
basis for the Board's decision, we take no position on the impact
that such a determination would have on Moore's eligibility for
benefits.
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The Board's decision is vacated and the matter is remanded
for further proceedings consistent with this opinion. We do not
retain jurisdiction.
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