                                NOT FOR PUBLICATION WITHOUT THE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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                                        2
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.


                                                                           A-1181-18T1
                                         3
      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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                                       4
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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                                        5
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


                                                                         A-1181-18T1
                                        6
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).
                                                                       A-1181-18T1
                                      7
      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.




                                                                        A-1181-18T1
                                       8
      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


                                                                          A-1181-18T1
                                        9
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


                                                                          A-1181-18T1
                                       10
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




                                                                         A-1181-18T1
                                      11
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.
                                                                          A-1181-18T1
                                       12
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)
                                                                          A-1181-18T1
                                       13
      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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                                      14
      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


                                                                            A-1181-18T1
                                        15
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,


                                                                           A-1181-18T1
                                       16
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.




                                                                         A-1181-18T1
                                      17
