NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Appellant, Borough of Ringwood (Ringwood), challenges the final determination of the Board of Review, Department of Labor and Workforce Development (Board), finding Barbara Ficken had not voluntarily quit her job, and therefore was not disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). We conclude the Board's decision, reversing that of the Appeal Tribunal (Tribunal), was not adequately supported by the facts in the record and therefore we reverse.
We discern the following facts from the record, which includes a testimonial hearing conducted via telephone by the Tribunal on March 12, 2014. For sixteen years, from November 1997 to December 2013, Ficken was a police dispatcher for Ringwood. Ficken's last day of attendance at work was July 26, 2013. Thereafter to August 11, she was on vacation. Ficken was scheduled to return on August 12, but she called in sick for that day and the following day.
On August 14, 2013, Ficken's husband dropped off a note to her supervisor from Michael Lief, M.D., stating that she could not work from August 12 through August 16, 2013. Her husband also submitted a second note, from Efstathia Chiopelas, M.D., on the same day, stating Ficken could not work from August 14 through September 3, 2013. Dr. Chiopelas explained, "[d]ue to a flare of her underlying disease she was advised to rest and stay home from work." Ficken testified she saw both these doctors on August 14, which is typical of her visits, as she sees "three to five specialists a day usually." Both doctors' letterheads bear the same address. As of August 14, Ficken had exhausted her paid sick leave.
On September 4, Ficken again saw Dr. Lief. He gave her a note excusing her from work through January 1, 2014, "due to her ongoing chronic medical conditions," which was delivered by her husband to her supervisor on September 5.
Ringwood's attorney, Justin Santagata, testified that he sent Ficken a notice dated September 11, 2013, under the Federal Family Medical Leave Act (FMLA), 29 U.S.C.S. §§ 2601 to 2654, advising her to submit the requisite medical certifications to obtain the four-month leave of absence and that her job would not be held beyond that period. The notice indicated the amount of FMLA days Ficken had and that Ringwood was not required to hold her position past the expiration of these days.
The notice was sent via regular and certified mail; the certified mail was returned, but the regular mail was not. The letter was addressed to Ficken at her address in Ringwood. Santagata testified that this address was obtained from Ringwood's records. Ficken did not provide the requisite medical certifications or any further information and testified that she never received this notice. She testified that she moved from Ringwood at the end of August, had filled out a change of address form at the post office, and had received other correspondence that was forwarded from that address.
On September 26, 2013, Ficken called Susan Rohdieck, a deputy clerk in Ringwood, about temporary disability benefits.1 Rohdieck testified that Ficken indicated she received a letter from Ringwood's attorney that she could lose her job. Rohdieck also memorialized the conversation in her notes on Ficken's disability claim memo.
On December 18, 2013, Ringwood's manager, Scott Heck, sent Ficken a letter stating that she had failed to fill out the FMLA paperwork, and that Ringwood had waited until the expiration of the FMLA period, and now that time had expired. Therefore, Ringwood advised Ficken that she had abandoned her position and relinquished her job. The address on the letter was in West Milford, Ficken's then current address.
Ficken testified she was released by her doctor to return to work on December 27, 2013. Thereafter, on December 30, 2013, Ficken came to Heck's office to discuss the termination letter. Ficken's friend, Jean Lee, accompanied her to the office. In response to a question from Santagata, Lee testified that Ficken told her that Ficken did not open a letter from Santagata's office.
On January 5, 2014, Ficken filed an application for unemployment benefits. On February 11, 2014, a Notice of Determination indicated Ficken was granted unemployment benefits as it was found that she was discharged for "simple misconduct." Ringwood appealed this decision to the Tribunal and a hearing was conducted via telephone on March 12, 2014. Heck, Rohdieck, and Santagata testified for Ringwood, while Ficken and Lee testified for Ficken.
In a decision mailed on April 22, 2014, the Tribunal found:
[t]he claimant asserts she did not receive correspondence from the borough attorney, which had required her to fill out FMLA paperwork to approve her leave of absence. This assertion is rejected as the preponderance of evidence presented indicates the claimant did receive the correspondence, via regular mail, sent by the borough attorney. As such, it is concluded by this Tribunal that the claimant's failure to request permission for a leave of absence by properly filling out the FMLA paperwork, demonstrates her intention to abandon the job.
The Tribunal found Ficken was disqualified for benefits under N.J.S.A. 43:21-5(a), concluding that she voluntarily left work without good cause attributable to the work. It found that the disqualification did not arise under N.J.S.A. 43:21-5(b), as Ficken was not discharged for misconduct connected with the work.2
On May 7, 2014, Ficken appealed the decision of the Tribunal to the Board. The Board issued its final agency decision on November 5, 2014. The Board adopted most of the Tribunal's findings of fact, except it rejected the finding that Ficken had received correspondence from Ringwood's attorney and instead concluded:
[t]he claimant hand-delivered the medical documentation excusing her from work through October [sic3] 1, 2014, on September 3, 2013. Subsequently, the claimant maintained contact with the benefits clerk regarding her temporary disability claim. The claimant did not receive any additional forms to complete after September 3, 2013 regarding a leave under the [FMLA]. On December 30, 2013, the claimant received a termination letter, dated December 18, 2013, from the employer. The employer decided to fill the claimant's position due to the nature of the work that the claimant performed.
The Board held that Ficken was not disqualified under N.J.S.A. 43:21-5(a) because the facts showed that Ficken's separation was not voluntary, she had done enough to evidence an intent to keep her job, and she had not received the FMLA notice. In reversing the Tribunal, the Board concluded:
[t]he testimony at the hearing clearly established that the claimant was ill, provided the employer with the proper medical documentation, and she maintained contact with the employer regarding her disability leave. Thus, the claimant intended to return to work upon her recovery as in Garcia v. Board of Review, 191 N.J.Super. 602 (App. Div. 1983).
Additionally, the Board found that Ringwood "discharged the claimant during the period she was disabled, because [Ringwood] needed to fill her position." Finding no evidence that Ficken was discharged for misconduct, the Board agreed with the Tribunal that no disqualification arose under N.J.S.A. 43:21-5(b). Therefore, Ficken was eligible for unemployment benefits. This appeal ensued.
Ringwood argues the entire case turns on the single disputed fact of Ficken's receipt of the FMLA notice. Ringwood contends that Rohdieck's memo on Ficken's file, which included Ficken's statement about receiving a letter from Ringwood's attorney about losing her job, should have been admitted into evidence because of its "significance in the context of all other evidence." Next, Ringwood argues the Board erred in holding that Ficken did not receive the notice and contends it is unsupported by the testimony. Lastly, Ringwood argues the Board failed to appreciate the dispositive significance of the notice.
Ficken contends the Board's grant of her unemployment benefits is consistent with public policy and the legislative intent of the statutes. Moreover, Ficken argues that the record shows that she did not voluntarily quit, and did not receive the FMLA notice. The Board maintains its decision was reasonable and supported by credible evidence in the record and, thus, there is no reason to disturb its ruling.
Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citation omitted); In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). An appellate court will not reverse the decision of an administrative agency unless it is "arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole." Stallworth, supra, 208 N.J. at 194 (citation omitted); see also In re Suspension of License of Silberman, 169 N.J.Super. 243, 255-56 (App. Div. 1979), aff'd, 84 N.J. 393 (1980).
A reviewing court should not substitute its own judgment for the agency's judgment even though it might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194. Nevertheless, though an appellate court's scope of review of an agency decision is necessarily "circumscribed," our review is "`not simply a pro forma exercise in which [we] rubber stamp[] findings that are not reasonably supported by the evidence.'" Taylor, supra, 158 N.J. at 657 (1999) (quoting Chou v. Rutgers, 283 N.J.Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996)). "Appellate courts must engage in a `careful and principled consideration of the agency record and findings.'" Id. at 657-58 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
Ringwood argues that Rohdieck's notes on Ficken's disability file should have been admitted into evidence. The appeals examiner accepted she made the notes; however, the memo itself was not admitted into evidence because he did not deem it necessary because Rohdieck had testified to that fact.
Next, Ringwood contends that the Board erred in its factual finding that Ficken had not received the FMLA notice, and further, the Board failed to appreciate the significance of this notice. Citing the Board's regulations for the definition of "voluntary leaving for health or medical reasons," Ringwood notes that importance of the employee "[making] an attempt to protect [his or her] employment." Ringwood argues that Ficken's disregard of the FMLA notice was clearly the opposite. Ringwood further contends that the Board's reliance on Garcia is misplaced and the Board conflated Ficken's attempt to procure temporary disability benefits with an intent to return to work. Ficken rebuts Ringwood's assertion that the Board "focused" on her interactions about temporary disability benefits for support, but that the evidence "clearly established" her intent to return to work.
N.J.S.A. 43:21-5(a) is a section of "New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to-24.30, [which] `provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment.'" Frazier v. Bd. of Review, 439 N.J.Super. 130, 134 (App. Div. 2015) (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)).
The Act disqualifies a person from 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). In order to avoid disqualification, the claimant has the burden of establishing that she left work for good cause related to work. Brady, supra, 152 N.J. at 218.
An employee has left work voluntarily within the meaning of the statute "only if `the decision whether to go or to stay lay at the time with the worker alone.'" Lord v. Bd. of Review, 425 N.J.Super. 187, 191 (App. Div. 2012) (quoting Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953)). "`[G]ood cause attributable to such work' means 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).
In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. 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 v. Bd. of Review, 192 N.J.Super. 284, 288 (App. Div. 1983) (citations and internal quotation marks omitted).]
Thus, an employee who quits a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a). See Self v. Bd. of Review, 91 N.J. 453, 457 (1982) (explaining "a departure not attributable to work . . . will disqualify the employee from receiving unemployment benefits").
Moreover, a claimant who leaves work for a valid but otherwise personal reason is subject to disqualification pursuant to that same statute. Morgan v. Bd. of Review, 77 N.J.Super. 209, 214 (App. Div. 1962). "The only recognized exception to that rule is where an employee is unable to work because of illness and attempts to protect her employment." Self, supra, 91 N.J. at 457 (citing DeLorenzo v. Bd. of Review, 54 N.J. 361, 364 (1969)).
When a claimant for unemployment benefits has left work for health or medical reasons, N.J.A.C. 12:17-9.3(d) requires that "medical certification" be provided to support a finding of good cause attributable to work. Subsections (b) and (c) of the regulation amplify the pertinent requirements as follows:
(b) An individual who leaves a job due to a physical and/or mental condition or state of health which does not have a work-connected origin but is aggravated by working conditions will not be disqualified for benefits for voluntarily leaving work without good cause "attributable to such work," provided there was no other suitable work available which the individual could have performed within the limits of the disability. When a non-work connected physical and/or mental condition makes it necessary for an individual to leave work due to an inability to perform the job, the individual shall be disqualified for benefits for voluntarily leaving work.
(c) Notwithstanding (b) above, an individual who has been absent because of a personal illness or physical and/or mental condition shall not be subject to disqualification for voluntarily leaving work if the individual has made a reasonable effort to preserve his or her employment, but has still been terminated by the employer. A reasonable effort is evidenced by the employee's notification to the employer, requesting a leave of absence or having taken other steps to protect his or her employment.
[N.J.A.C. 12:17-9.3(b),(c) (emphasis added).]
The Supreme Court applied these principles in the seminal case of DeLorenzo, supra, 54 N.J. at 362, upon which Ficken principally relies to support her argument that she did not voluntarily quit. In DeLorenzo, an unemployment claimant who was ill for causes not related to her employment, received unemployment benefits for a period of time after recovering from her illness. Id. at 362. DeLorenzo later tried to return to her job, but was unsuccessful because there was no work available from her employer. Id. at 363. On these facts, the Court concluded that a "mere failure to work because of illness" did not constitute a voluntary quit within the meaning of the unemployment compensation statute. Id. at 364.
As the Court explained in DeLorenzo, an employee who had become ill but took steps "reasonably calculated to protect the employment" did not voluntarily leave work within the meaning of the statute. Ibid. The Court reasoned that disqualification would arise only in situations where an employee who had suffered a physical injury that was not work-related decided to quit because his or her work duties were detrimental to that injury. Ibid.
Applying those principles here, although Ficken does not claim that her chronic condition was caused by her employment at Ringwood, the note from Dr. Lief suggests that her condition would have become aggravated if she returned to her job. See N.J.A.C. 12:17-9.3(b) (concerning the effect on eligibility of an injury "aggravated by working conditions"). The record does not substantiate whether "there was no other suitable work available which [claimant] could have performed within the limits of [her] disability." Ibid.
However, there is no indication that Ficken ever made a request for accommodation, and whether such a request, if made, was unambiguously rejected by her employer. Moreover, her doctors' notes considered by the Tribunal and Ficken's testimony were vague, and attributed her absence to an "ongoing chronic medical condition" with no explanation of the condition or the effect working would have on it.
Ficken contends she took every possible precaution to preserve her job. This allegation, however, is unsupported by the record. We fail to see how an employee would believe submitting a doctor's note with a four-sentence explanation, and nothing further, would be enough to excuse her from work for over three months. The issue concerning the FMLA notice is relevant because if she did receive it, as the Tribunal found, and failed to submit the required paperwork then it cannot be said she took every precaution to preserve her job.
The Board may reject the Tribunal's factual findings, including its credibility determinations, so long as the Board cogently and convincingly explains its rationale for the rejection. N.J.S.A. 43:21-6(e); Ryan v. Brown, 279 N.J.Super. 648, 651, 653 (App. Div. 1995). See also Cavalieri v. Bd. of Trs. of the Pub. Employees Ret. Sys., 368 N.J.Super. 527, 534 (App. Div. 2004).
Here, the Board did not cogently and convincingly explain its rationale for the rejection of the Tribunal's determination that it did not believe Ficken's testimony that she never received the FMLA notice. The only explanation in rejecting the Tribunal's decision was its finding that "[Ficken] intended to return to work upon her recovery as in Garcia v. Board of Review, 191 N.J.Super. 602 (App. Div. 1983)."
We must "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J.Super. 346, 348 (App. Div. 1997). The Tribunal, which heard the testimony of the parties, found, by a preponderance of the evidence, that Ficken had in fact received the FMLA notice, thereby finding her testimony that she did not, incredible. The Board disagreed, but did not give specific reasons for rejecting the findings with regard to the Tribunal's credibility determination. Cf. N.J.S.A. 52:14B-10(c) (An agency head may only reject the ALJ's credibility findings after he or she determines "from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." In doing so, "the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record."). As Ringwood points out, the question of whether Ficken received the FMLA notice is the crux of the determination of whether Ficken qualifies for unemployment benefits.
The Board's decision lacks a cogent and convincing rationale as to its finding that Ficken did not receive the FMLA notice, given the uncontroverted mailing of the notice by ordinary and certified mail, Rohdieck's testimony that Ficken indicated she received a letter from Ringwood's attorney that she could lose her job, and Rohdieck's memorialization of that conversation in her notes on Ficken's disability claim memo as evidenced by her testimony. Therefore, the Board's findings are not supported by sufficient, competent, and credible evidence in the record, and the decision is arbitrary, capricious or unreasonable.
Reversed.
