                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-6228-12T3

ANDREA N. FRAZIER,
                                        APPROVED FOR PUBLICATION
     Appellant,
                                            January 22, 2015

v.                                          APPELLATE DIVISION

BOARD OF REVIEW, DEPARTMENT OF
LABOR and CENTER FOR FAMILY
SERVICES, INC.,

     Respondents.

________________________________________________________________

         Submitted January 6, 2015 – Decided January 22, 2015

         Before Judges Koblitz, Haas and Higbee.

         On appeal from Board of Review, Department
         of Labor, Docket No. 335,488.

         South Jersey Legal Services, Inc., attorneys
         for appellant (Lee Ginsburg, on the brief).

         John J. Hoffman, Acting Attorney General,
         attorney    for    respondent  (Lewis   A.
         Scheindlin, Assistant Attorney General, of
         counsel; Anthony DiLello, Deputy Attorney
         General, on the brief).

         Respondent Family      Services,   Inc.   has   not
         filed a brief.

     The opinion of the court was delivered by

KOBLITZ, J.A.D.
       Claimant    Andrea   Frazier    appeals          from   the   July    12,    2013

final decision of the Board of Review, Department of Labor and

Workforce     Development,      (the      Board),        affirming      the       Appeal

Tribunal's decision partially disqualifying her for unemployment

benefits,1 due to claimant's decision to voluntarily leave part-

time   weekend     employment     after       being     involuntarily       terminated

from her full-time job.            Because her reasons for leaving her

part-time        employment       satisfy          an      exception         to      the

disqualification for benefits that a voluntary decision to quit

ordinarily carries, we reverse.

       Claimant    began    employment        as   a    full-time    mental       health

clinician at the University of Medicine and Dentistry of New

Jersey (UMDNJ) in 2005.           In 2009 she also began working part-

time as needed on weekends as a counselor at the Center for

Family Services (CFS).        On April 8, 2010, she was laid off from

UMDNJ through no fault of her own.                       Seven months later she

voluntarily quit her part-time CFS job to take other part-time

weekend     work   at   Trenton     Psychiatric          Hospital     (TPH),       which

offered her higher pay and a regular schedule as well as a

possible path to full-time employment.                   Claimant worked at this


1
  Our prior remand to the agency, requested by the agency for
purposes of a recalculation, resulted in a restoration of $7 in
weekly benefits, leaving a reduction of $89 per week due to
claimant's partial disqualification from benefits.


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                                                                              A-6228-12T3
weekend job for only four months, quitting due to the dangerous

conditions on the job, which made the job unsuitable.2

       The only issue before us is whether the Board abused its

discretion     in    finding     that   claimant's      decision       to   leave      her

part-time      CFS    job   partially     disqualified        her    from   receiving

unemployment benefits.

       Our review of an administrative agency's final action is

quite limited.        "[A]n appellate court will not upset an agency's

ultimate determination unless the agency's decision is shown to

have   been    arbitrary,       capricious,      or   []   unreasonable,        or     not

supported by substantial credible evidence in the record as a

whole."     Barrick v. State, 218 N.J. 247, 259 (2014) (citations

and    internal      quotation    marks    omitted).          The    decision     of   an

administrative        agency     carries       with   it      the    presumption       of

reasonableness.         N.J. Ass'n of Sch. Adm'rs v. Schundler, 211

N.J.    535,   548     (2012)    (citing       N.J.   Soc'y    for    Prevention       of

Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385

(2008)).       We defer to an agency's interpretation of its own

regulations unless "plainly unreasonable."                     In re Election Law

Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262

2
  The agency accepted claimant's contention that being required
to work with violent mentally ill patients without adequate
security rendered this job unsafe and therefore unsuitable. She
was, however, held accountable for the prior separation from
CFS, reducing her benefits and leading to this appeal.


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                                                                                A-6228-12T3
(2010)     (citations          and     internal      quotation        marks     omitted).

"[W]hen [the] agency's decision is plainly mistaken," however,

it is entitled to no such deference and must be reversed in the

interests of justice.             W.T. v. Div. of Med. Assistance & Health

Servs.,       391    N.J.     Super.   25,    36   (App.     Div.     2007)    (citations

omitted).

       New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-

1 to -24.30, "provides financial assistance to eligible workers

suffering the distress and dislocation caused by unemployment."

Utley    v.    Bd.     of    Review,   194    N.J.   534,       543   (2008)    (citation

omitted).           N.J.S.A. 43:21-5(a) disqualifies an individual from

the    receipt       of     unemployment     compensation       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."                           Therefore,

"benefits are available to a worker who voluntarily leaves his

job only if it is for 'good cause attributable to [the] work.'"

Utley, supra, 194 N.J. at 544 (quoting N.J.S.A. 43:21-5(a)).

The    phrase       "'good     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).             If an employee

leaves a job for personal reasons, the employee is disqualified



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                                                                                 A-6228-12T3
under the statute.           Utley, supra, 194 N.J. at 544-45.                "The

burden   of    proof   is    on   the    claimant   to   establish   good   cause

attributable to such work for leaving."              N.J.A.C. 12:17-9.1(c).

    Claimant      quit      CFS   only   after   being   terminated    from   her

full-time job at UMDNJ.           She could not live on the income from

the sporadic hours of weekend work provided by CFS.                   She argues

that, because of the termination of her full-time employment and

her inability to find comparable full-time work, she was forced

to find better-paying and more dependable part-time work.                      She

anticipated that the job at TPH would provide a path to full-

time employment.

    N.J.A.C. 12:17-9.2, entitled "Voluntarily leaving secondary

part-time employment[,]" provides:

              (a) A worker, who is employed by two or more
              employers, one of which is full-time work
              and the other(s) part-time work, who is
              separated from the full-time employment and
              becomes    eligible    for     benefits,    and
              subsequently voluntarily leaves the part-
              time employment, shall be subject to a
              partial   disqualification    for   voluntarily
              leaving   the   part-time   employment.      An
              individual       may       avoid        partial
              disqualification if he or she can establish
              good cause attributable to such work as
              defined in N.J.A.C. 12:17-9.1(b).

                   . . . .

                   2. Personal reasons for leaving part-
                   time employment which arise from the
                   loss of the full-time employment may



                                          5
                                                                        A-6228-12T3
                  constitute     good    cause    attributable      to
                  such work.

    The Board argues that this provision was intended to apply

only when a part-time job interferes with the search for full-

time employment, as occurred in Goodman v. Board of Review, 245

N.J. Super. 551 (App. Div. 1991).                Goodman held that claimant

was entitled to benefits after quitting her part-time job, which

she obtained after being terminated from full-time employment,

because    that   job     interfered    with     her    search    for    full-time

employment and was not "suitable employment" in any event, as it

paid substantially less than her full-time job.                  Id. at 560.      In

contrast to the situation in Goodman, a worker who has both a

full- and part-time job at the same time and, after losing the

full-time     job,   voluntarily        leaves    the     part-time      job,     is

extremely unlikely to have left the part-time job because it

interfered with seeking a full-time job.                   Thus, if N.J.A.C.

12:17-9.2(a)(2) is to be applied to individuals who worked part-

time while holding down a full-time job, as is clear from the

plain     language   of    the   regulation,       other    personal      reasons

constituting "good cause" must logically be included.

    The Tribunal, without explicitly addressing N.J.A.C. 12:17-

9.2(a)(2), reasoned that because claimant could search for a

full-time job and still work when needed on weekends, she did

not qualify for the exception to partial disqualification from


                                        6
                                                                          A-6228-12T3
benefits when leaving part-time work for personal reasons due to

the loss of a full-time job.                    The Board affirmed, adding no

further      explanation.          We     are    constrained      to   reject     this

constricted interpretation because it is "plainly unreasonable."

In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008,

supra, 201 N.J. at 262 (citations and internal quotation marks

omitted).          If the provision was so narrowly intended, we can

think of no reason why it would not explicitly communicate this

narrow intent.

       We     note        as    well      that      Goodman       recognizes        the

unreasonableness of disqualifying a claimant on the basis of

quitting a low-paying job that she would not have been required

to accept due to its lack of financial suitability.3                       Goodman,

supra,      245    N.J.   Super.   at     558-60;    see   also    N.J.S.A.     43:21-

5(c)(1) (delineating the factors to be considered in determining

whether work is "suitable"); Wojcik v. Bd. of Review, 58 N.J.

341,   345-46       (1971)     (holding    that     voluntarily     quitting     brief

full-time         employment,    which    began     following     termination     from

3
  We recognize that Goodman, decided prior to the promulgation of
N.J.A.C. 12:17-9.2(a)(2), left open the possibility of partial
disqualification due to quitting a part-time job obtained after
being terminated from full-time employment. Goodman, supra, 245
N.J.   Super.   at   558-59.      The  Board,   however,   argues
inconsistently that N.J.A.C. 12:17-9.2(a)(2) was promulgated to
implement Goodman by avoiding partial disqualification in a
Goodman situation, yet it also argues that Goodman's apparent
allowance of partial disqualification should be applied here.


                                            7
                                                                              A-6228-12T3
long-term full-time employment, does not disqualify an employee

when the brief full-time work was unsuitable due to low pay,

inconsistency with prior training, and a risk to health); Johns-

Manville Prods. Corp. v. Bd. of Review, 122 N.J. Super. 366, 370

(App. Div. 1973) (holding that a substantial reduction in wages

is good cause to leave work and renders the job unsuitable).

       We   are   aware     that   the     provision      is    written     with   the

permissive word "may[,]" indicating that all personal reasons

that    arise     from    the   loss     of     full-time      employment    do    not

necessarily provide "good cause attributable to the work" and

thus eligibility for full benefits.                N.J.A.C. 12:17-9.2(a).          The

Board, however, has not provided any reasons other than its

unreasonably narrow interpretation of the provision to justify

rejecting claimant's compelling reasons.                       Claimant reasonably

sought to improve her employment situation by accepting a part-

time job with guaranteed hours and better pay, a job that might

lead to full-time employment.                  She was forced to take on the

inherent risk and unpredictability of a new part-time job only

because she lost her full-time job.                The agency's interpretation

is   inconsistent        with   Goodman,       Wojcik    and   Johns-Manville      and

contrary     to   the     governing    statute,         N.J.S.A.   43:21-5(a),       as

implemented by N.J.A.C. 12:17-9.2(a)(2).                    We therefore reverse




                                           8
                                                                             A-6228-12T3
the   Board's   decision   to   partially   disqualify   claimant   from

benefits.

      Reversed.




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