MICHELLE LOVE VS. BOARD OF REVIEW (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NOT FOR PUBLICATION WITHOUT THE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-1181-18T1
MICHELLE LOVE,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF
LABOR, and EMPIRE
INTERNATIONAL, LTD.,
Respondents.
_______________________
Submitted November 4, 2019 – Decided November 26, 2019
Before Judges Ostrer and Vernoia.
On appeal from the Board of Review, Department of
Labor, Docket No. 155,089.
Michelle Love, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Donna Arons, Assistant
Attorney General, of counsel; Alexis F. Fedorchak,
Deputy Attorney General, on the brief).
Respondent Empire International, LTD., has not filed a
brief.
PER CURIAM
Claimant Michelle Love appeals from a Board of Review final agency
decision disqualifying her from unemployment compensation benefits because
she voluntarily resigned her employment as a customer care representative with
Empire International, Ltd. without good cause attributable to the work. Based
on our review of the record in light of the applicable legal principles, we vacate
the Board's decision and remand for further proceedings.
I.
Claimant commenced her employment as a customer care representative
with Empire in May 2017. Following the termination of her employment one
year later, she filed a claim for unemployment benefits in June 2018. A Division
of Unemployment Compensation deputy determined claimant was disqualified
from benefits from May 20, 2018, through July 14, 2018, because she was
discharged on May 21, 2018, for simple misconduct connected to the work by
violating a company rule.
Claimant appealed. The notice of the hearing before the Appeal Tribunal
stated that the issue to be determined was whether claimant was terminated for
misconduct and severe misconduct, but Empire's position at the hearing was that
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claimant was disqualified from benefits because she voluntarily resigned
without good cause attributable to the work. The hearing examiner noted that
claimant had not been provided notice of that issue prior to the hearing and
offered claimant's counsel the opportunity to adjourn the hearing, but counsel
waived claimant's "right to written notice for voluntarily leaving" and agreed to
proceed with the hearing.
With the change of the hearing issue from whether claimant was
terminated for misconduct to whether she voluntarily resigned for good cause
not attributable to the work, the evidence presented centered on the
circumstances surrounding the May 21, 2018 termination of claimant's
employment. Empire's director of operations, Jeanine Simonson, testified that
in March 2018, claimant was written up because a review of recorded
communications between claimant and Empire's customers revealed
communications claimant did not "handle[] well" and also claimant's
"erroneous[]" award of "credits and things" to customers. Simonson testified
that in March 2018, Empire instituted a performance improvement plan for
claimant; claimant was advised that if her performance did not improve, further
disciplinary action up to termination could occur; and claimant received a
written warning to that effect.
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Simonson also explained that claimant's performance improved, and that
two months later, on May 21, 2018, the company offered to increase claimant's
wages one dollar per hour. According to Simonson, claimant said the increase
was insufficient, she had another job, and she was going to have to quit because
the job with Empire did not pay enough. According to Simonson, she told
claimant, "I guess you have to do . . . what you have to do" and accepted
claimant's resignation. Simonson testified that claimant's later assertion "that
she didn’t quit is totally untrue."
On May 21, 2018, claimant submitted a detailed letter to Empire's chief
executive officer, David Seelinger, describing her employment history with the
company, the reduction and turnover of staff in her department, and her
dissatisfaction with the amount and payment of her wages. Claimant noted that
in September 2017, she complained about a co-employee who "continually left
work early, showed up late, or took numerous days off," and that, after the
employee was informed of her complaint, there "was unnecessary and
unprofessional drama and tension within the team." She also stated that in
March 2018, she was shocked to be placed on a performance improvement plan,
and that in May she was informed she "perfect[ed] all [of her] skills . . .
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and . . . made outstanding progress." Claimant also declared that she "will be
putting in . . . two week[s'] notice due to the ongoing struggles."
In the hours following receipt of claimant's letter, Simonson and Belle
Riskin, Empire's Director of Human Resources, spoke to claimant on the
telephone. Simonson could not recall all that was said during the conversation.
Simonson denied claimant was told her employment was being involuntarily
terminated and recalled she and Riskin accepted claimant's resignation.
Simonson acknowledged the phone call was recorded and Empire had the
recording. Empire paid claimant through June 1, 2018.
Claimant disputed Simonson's testimony concerning the phone call.
Claimant testified that after she sent the May 21, 2018 letter, Riskin and
Simonson called and advised her she was "terminated effective immediately."
Claimant also asserted she sent the May 21 letter to complain that Empire had
not paid her as required by law for time she had been required to be available
"on call" to address customer issues. Following the termination of her
employment, claimant filed a claim concerning the on-call pay issue with the
New Jersey Department of Wage and Hour Compliance. Claimant testified she
raised the on-call pay issue with Simonson and Seelinger in the months prior to
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the termination of her employment and in May 2018 told them she "would have
to resign" if the issue was not resolved.
Claimant denied resigning on May 21, 2018, and testified she told
Simonson, and later Seelinger in the May 21 letter, that she was thinking about
resigning, but would put her resignation in writing. She explained that she never
submitted a written resignation, and that she wrote to Seelinger a second time
clarifying she did not resign in her May 21 letter, "didn’t want to resign," and
"wanted to still work for the company." Claimant denied telling Simonson she
had another job and testified that after she sent the May 21 letter, Simonson and
Riskin called her and said she was terminated "effective immediately" but would
be paid for two weeks.
In its written decision, the Appeal Tribunal determined the evidence did
not establish claimant expressed a "future intention" to resign, but rather
established claimant "initiated the separation both verbally and in writing" on
May 21, 2018. The Appeal Tribunal found claimant was placed on a
performance improvement plan, agreed to the plan, and was subsequently told
her performance improved. The Appeal Tribunal noted that claimant was
offered a one dollar per hour wage raise, but did not accept it. The Appeal
Tribunal also found that claimant told her manager, Simonson, that she had
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another job and would be leaving her employment, and that claimant sent the
letter to Seelinger advising she was submitting her two weeks' notice due to
ongoing struggles at Empire. The Appeal Tribunal concluded that claimant left
work voluntarily and that her reason for resigning—ongoing struggles at
Empire—did not constitute good cause attributable to the work. The Appeal
Tribunal disqualified claimant for benefits as of May 20, 2018, in accordance
with N.J.S.A. 43:21-5(a).1
Claimant appealed. In her pro se letter to the Board in support of her
appeal, claimant argued the evidence did not support the Appeal Tribunal's
findings, the findings were erroneous, the Appeal Tribunal did not consider if
her purported resignation was for good cause attributable to the work, and the
Appeal Tribunal erred by failing to issue a subpoena for the audio recording of
the May 21, 2018 telephone call during which Simonson and Riskin allegedly
involuntarily terminated her employment. Claimant noted that her counsel
requested the subpoena prior to the hearing and during the hearing, and that
Empire's failure to produce the recording of the telephone call undermined its
contention that she resigned.
1
The Appeal Tribunal also rejected the deputy's determination claimant was
disqualified because she was discharged for simple misconduct connected to the
work. See N.J.S.A. 43:21-5(b).
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In its decision, the Board did not address claimant's argument concerning
the requests for the subpoena for the recording. The Board's decision reflects
only that it reviewed the record and affirmed the Appeal Tribunal's decision.
This appeal followed.
II.
Our scope of review of an agency decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579
(1980)). In challenging an agency conclusion, the claimant carries a substantial
burden of persuasion, and the determination of the administrative agency carries
a presumption of correctness. Gloucester Cty. Welfare Bd. v. N.J. Civ. Serv.
Comm'n, 93 N.J. 384, 390-91 (1983).
We are also "obliged to defer to the Board when its factual findings are
based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd.
of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citations
omitted). Indeed, "[w]e are not permitted to review the case as though we were
the original factfinder and substitute our judgment for any disagreements we
might have with the Board." Ibid. "Rather, we must determine whether the
Board could reasonably have reached its conclusion based on the proofs." Ibid.
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A court may properly intervene if an agency's action was arbitrary,
capricious or unreasonable, or was "'clearly inconsistent with its statutory
mission or with other State policy.'" Brady v. Bd. of Review, 152 N.J. 197, 210
(1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27
(1994)). Judicial review, however, is confined to determining, first, whether
the agency decision offends the State or Federal Constitution; second, whether
it violates legislative policies; third, whether the record contains substantial
evidence to support the agency decision; and, fourth, whether the agency, in
applying legislative policies to the facts, clearly erred in reaching a conclusion
that could not reasonably have been made. Id. at 211; see also Barry v. Arrow
Pontiac, Inc., 100 N.J. 57, 71 (1985) (explaining that agency determinations are
reversed only if arbitrary, capricious, unreasonable, unsupported by substantial
credible evidence as a whole, or inconsistent with the enabling statute or
legislative policy).
Our consideration of a Board's final decision is also guided by the
fundamental principles governing unemployment compensation. The
unemployment compensation law, N.J.S.A. 43:21-1 to -71, is designed to reduce
the impact of unemployment for workers who, without fault, become
unemployed. Brady, 152 N.J. at 212. The policy underlying the law is the
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provision of "protection against the hazards of economic insecurity due to
involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J.
371, 374 (1989); see also N.J.S.A. 43:21-2 (declaring it the public policy "to
lighten [the] burden which . . . so often falls with crushing force upon" a worker
and his or her family who is subject to "[i]nvoluntary unemployment").
The unemployment compensation law disqualifies a person from
receiving unemployment benefits if he or she "left work voluntarily without
good cause attributable to such work." N.J.S.A. 43:21-5(a). The phrase "good
cause attributable to such work" is defined 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." N.J.A.C. 12:17-9.1(b). "The test of
'ordinary common sense and prudence' must be utilized to determine whether an
employee's decision to leave work constitutes good cause." Brady, 152 N.J. at
214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div.
1964)). The employee bears the burden of proof to establish good cause. Id. at
218; N.J.A.C. 12:17-9.1(c).
N.J.S.A. 43:21-5(a) "protects not only workers who are involuntarily
unemployed—those who are laid-off or terminated from their jobs by their
employers—but also those who voluntarily quit their jobs for good cause
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attributable to their work." Utley v. Bd. of Review, 194 N.J. 534, 543-44 (2008).
Because an employee "has the 'responsibility to do whatever is necessary and
reasonable in order to remain employed,'" Brady, 152 N.J. at 124 (quoting
Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)), a decision
to quit "'must be compelled by real, substantial and reasonable circumstances
not imaginary, trifling and whimsical ones,'" ibid. (quoting Domenico v. Bd. of
Review, 192 N.J. Super. 284, 288 (App. Div. 1983)).
Consistent with the foregoing principles, the Board contends there is
substantial credible evidence supporting its determination that claimant resigned
her employment without good cause attributable to the work, and that we are
therefore obligated to defer to those findings and affirm. "Application of the
substantial evidence rule presupposes an adequate opportunity by the party
against whom a decision has been rendered to have marshalled and offered
evidence." Jones v. Dep't of Corr., 359 N.J. Super. 70, 75 (App. Div. 2003)."
The Board ignores claimant's contention that the factual findings supporting its
decision are the product of the Appeal Tribunal and Board's arbitrary,
capricious, and unreasonable denial of her requests for the issuance of a
subpoena for crucial evidence: the recording of the May 21, 2018 telephone call
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between claimant, Simonson, and Riskin that followed claimant's letter to
Seelinger.
Claimant argues she did not resign from her employment at Empire, but
instead was involuntarily terminated by Simonson and Riskin during the
telephone call. She contends that dispositive evidence she was involuntarily
terminated lies in the recording. Simonson testified she could not recall all that
was said during the call other than claimant was told her resignation was
accepted, and they never told claimant she was involuntarily terminated. In her
appeal to the Board, claimant requested that it issue a subpoena for the recording
because "it is the best existing evidence of whether [she] was terminated or not,
and it would easily clarify and provide incontrovertible evidence" that she was
involuntarily terminated and did not quit.2
Claimant contends it was error for the Appeal Tribunal in the first
instance, and the Board on her appeal from the Appeal Tribunal's decision, to
deny her requests for a subpoena for the recording and decide the matter without
the benefit of the recording. N.J.A.C. 1:12-11.1 provides for the issuance of
2
Claimant's August 12, 2018 letter to the Board appealing the Appeal Tribunal's
decision includes other arguments and requests. The Board's actions or inaction
regarding those other arguments and requests are not challenged on appeal. We
therefore do not address them.
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subpoenas by the Appeal Tribunal for the production of witnesses and records
"in cases appealed to an [A]ppeal [T]ribunal," and also permits the Board to
issue subpoenas on appeals from Appeal Tribunal decisions. To obtain a
subpoena, the party applying for the subpoena must make a "showing of the
necessity therefor." N.J.A.C. 1:12-11.1.
Claimant's counsel demonstrated the necessity for the subpoena for the
recording of the May 21, 2018 telephone conversation in her July 30, 2018
prehearing letter to the Appeal Tribunal and again during the hearing itself. In
her letter requesting the subpoena prior to the hearing, claimant's counsel
explained the notice of hearing stated claimant was disqualified for misconduct
and that claimant was never advised of any misconduct. Counsel sought the
subpoena of the May 21, 2018 audio recording of claimant's termination "to
substantiate the employer's position so that [claimant's counsel could] prepare
in advance of the hearing." Neither the Board nor Empire objected to the
request, and counsel's representations were sufficient to warrant issuance of the
subpoena.3 The record does not offer any basis supporting the Appeal Tribunal's
failure to address, act upon or grant the request.
3
In a July 26, 2018 prehearing submission to the Appeal Tribunal on claimant's
behalf, her counsel noted her prior request for the issuance of a subpoena for the
(continued)
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Moreover, during the hearing, when the issue of whether claimant
resigned or was involuntarily terminated first became the primary issue to be
decided, the recorded telephone call gained more importance and counsel noted
the Appeal Tribunal's failure to issue the requested subpoena before the hearing.
Counsel also requested on two occasions that the hearing record remain open to
allow the recording to be subpoenaed "if there [was] any question whether or
not [claimant] was terminated as opposed to voluntarily quit." The Appeal
Tribunal did not deny the requests, but never expressly ruled on them. There
was no post-hearing opportunity to subpoena the recording because the Appeal
Tribunal's decision was issued and mailed on the same day as the hearing.
In her letter to the Board challenging the Appeal Tribunal's decision,
claimant explained that during the hearing the issue of whether she quit or was
involuntarily terminated became the centerpiece of her disqualification.
Claimant asserted that production and review of the recording by the Board was
therefore essential because the recording memorialized the actual termination of
her employment, would confirm her version of the events, and would contradict
Simonson's testimony and Empire's version of her termination.
audio recording of the telephone call, and that the subpoena had not been
received.
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Claimant satisfied N.J.A.C. 1:12-11.1's standard for the issuance of a
subpoena for the recording in matters on appeal before the Board. Appeals to
the Board "may be heard upon the evidence in the record made before the
[A]ppeal [T]ribunal," but the Board "may direct the taking of additional
evidence before it," N.J.A.C. 1:12-14.3(a), if in the Board's discretion
"additional evidence is necessary to enable it to determine the appeal," N.J.A.C.
1:12-14.3(b). In its discretion, the Board may also "remand any claim or any
issue involved in a claim to an [A]ppeal [T]ribunal for the taking of such
additional evidence as the Board . . . may deem necessary." N.J.A.C. 1:12-
14.3(c).
In its final decision, the Board did not address claimant's arguments
concerning the subpoenaed recording or her request that the Board issue a
subpoena for the recording on claimant's appeal. The Board offered no findings
or reasoning supporting its apparent decision to ignore claimant's subpoena
request and to reject claimant's assertion that it was error for the Appeal Tribunal
not to issue the subpoena when it was first requested and when it was requested
during the hearing. See generally Flagg v. Essex Cty. Prosecutor, 171 N.J. 561,
571 (2002) (finding an abuse of discretion where a decision is made "without a
rational explanation"). In its brief on appeal to this court, the Board similarly
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ignores these issues and offers no argument disputing claimant's contention that
the Appeal Tribunal's and Board's failures to issue the subpoena for the
recording constitute errors requiring a reversal of the disqualification decisions.
Claimant was entitled to obtain and present evidence supporting her
eligibility for unemployment compensation benefits, and she properly attempted
to do so here with her requests for the issuance of a subpoena of the audio
recording. To be sure, counsel could have interposed an objection at the
commencement of the hearing, requested an adjournment, or more directly
reprised the request for the subpoena during the hearing. Nonetheless, the
requests were made before and during the hearing, and on the appeal to the
Board, and the record is bereft of evidence supporting a proper denial of the
requests or excusing the Appeal Tribunal's and Board's inexplicable failures to
address, respond, or rule on the requests. The recording, which Simonson
testified was made and exists, constitutes essential and perhaps dispositive
evidence of whether claimant resigned or was involuntarily terminated. That
issue is at the core of the determination of claimant's disqualification from
benefits under N.J.S.A. 43:21-5(a).
We vacate the Board's decision and remand for the issuance of the
subpoena for the recording of the May 21, 2018 telephone call between claimant,
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Simonson, and Riskin. The Board, through the Appeal Tribunal or otherwise,
shall reopen the record; consider the recording, the prior record, and such other
evidence that may be introduced; and determine claimant's eligibility for
unemployment compensation benefits. We do not offer any opinion on the
merits of claimant's entitlement to benefits or disqualification from benefits.
Those issues shall be decided anew on remand.
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
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