The opinion
NOT FOR PUBLICATION WITHOUT THE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-2987-22
ROCHELL D. COSGRIFF,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and CMG MARLBORO, LLC,
Respondents.
__________________________
Submitted October 17, 2024 – Decided December 26, 2024
Before Judges Currier and Torregrossa-O'Connor.
On appeal from the Board of Review, Department of
Labor, Docket No. 233892.
Forman, Cardonsky & Tsinman, attorneys for appellant
(Samuel Tsinman, on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent Board of Review (Sarah M. Gregory,
Assistant Attorney General, of counsel; Kendall J.
Collins, Deputy Attorney General, on the brief).
PER CURIAM
Plaintiff Rochell D. Cosgriff appeals from an April 19, 2023 final agency
decision by the Board of Review, Department of Labor (the Board) finding
plaintiff ineligible for Pandemic Unemployment Assistance (PUA) benefits
under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 15
U.S.C. §§ 9001-9141. We affirm.
I.
Plaintiff worked as a part-time food service worker for CMG Marlboro,
LLC, a senior assisted living facility, from September 4, 2019 until April 8, 2020
when she left the job and requested "a leave of absence" "until the danger [of
COVID-19] passes." Plaintiff did not consult a medical doctor, nor did she, or
anyone in her household, test positive for COVID-19 prior to her request.
Plaintiff never returned to her job.
Plaintiff filed for PUA benefits on April 5, 2020. She received a weekly
benefit of $231. On October 26, 2020, the Deputy Director of Unemployment
and Disability Insurance issued a determination, stating plaintiff was ineligible
for benefits from April 5, 2020, to September 4, 2021, because she left her
position voluntarily to self-quarantine due to concerns about contracting
COVID-19. As a result, she was liable for a refund of $5,544 of received
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benefits for the weeks ending May 2, 2020, through October 10, 2020, under
N.J.S.A. 43:21-16(d).
After plaintiff appealed the determination, the Appeal Tribunal conducted
a hearing and on January 19, 2021 affirmed the Deputy's determination of
ineligibility. Thereafter, the Board remanded the case to the Appeal Tribunal
for a new hearing and additional testimony "as a complete and audible record of
the hearing [wa]s not available for review."
The Appeal Tribunal conducted a new hearing, and affirmed the decision
of the Deputy on November 8, 2021, finding plaintiff ineligible for PUA
benefits. After appeal, the Board remanded for "additional testimony from
[plaintiff] and the employer as to whether or not [plaintiff's] unemployment was
due to a qualifying reason under Section [9021(a)(3)(A)(ii)(I)] of . . . [CARES]
and whether or not [plaintiff] is liable for a refund of benefits previously paid."
After a third hearing, the Appeal Tribunal found plaintiff ineligible under
N.J.S.A. 43:21-5(a), and Section 9021 of CARES, and liable for a $5,544 refund.
The Tribunal affirmed the determination of the Deputy and the Director.
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On April 19, 2023, the Board modified the decision, nullifying the portion
finding plaintiff ineligible under N.J.S.A. 43:21-5(a),1 but affirming the finding
of ineligibility under Section 9021(a)(3)(A)(ii)(I) of CARES. The Board found
plaintiff liable for the refund in the sum of $5,544.
II.
On appeal, plaintiff contends the Board erred in concluding she was
ineligible for CARES Act benefits.
Our review of quasi-judicial agency determinations is limited. Allstars
Auto. Grp., v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018) (citing
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). We
"review[] agency decisions under an arbitrary and capricious standard."
Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019).
The party challenging the administrative action bears the burden of making that
showing. Lavezzi v. State, 219 N.J. 163, 171 (2014).
"The CARES Act expanded eligibility, under the PUA program, for
payment of benefits for certain categories of individuals." Sullivan v. Bd. of
Rev., 471 N.J. Super. 147, 153 (App. Div. 2022).
1
The Board found plaintiff did not establish sufficient base weeks and wages
to qualify for unemployment compensation benefits under N.J.S.A. 43:21-5(a).
A-2987-22
4
A "covered individual" is defined under the CARES Act, in pertinent part,
as an individual who:
(i) is not eligible for regular compensation or extended
benefits under State or Federal law or pandemic
emergency unemployment compensation under section
9025 . . . including an individual who has exhausted all
rights to regular unemployment or extended benefits
under State or Federal law or pandemic emergency
unemployment compensation under section 9025 . . . ;
(ii) provides self-certification that the individual—
(I) is otherwise able to work and available
for work within the meaning of applicable
State law, except the individual is
unemployed, partially unemployed, or
unable or unavailable to work because—
(aa) the individual has been
diagnosed with COVID-19 or is
experiencing symptoms of COVID-
19 and seeking a medical diagnosis;
(bb) a member of the individual's
household has been diagnosed with
COVID-19;
(cc) the individual is providing care
for a family member or a member of
the individual's household who has
been diagnosed with COVID-19;
(dd) a child or other person in the
household for which the individual
has primary caregiving
responsibility is unable to attend
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school or another facility that is
closed as a direct result of the
COVID-19 public health emergency
and such school or facility care is
required for the individual to work;
(ee) the individual is unable to reach
the place of employment because of
a quarantine imposed as a direct
result of the COVID-19 public health
emergency;
(ff) the individual is unable to reach
the place of employment because the
individual has been advised by a
health care provider to self-
quarantine due to concerns related to
COVID-19;
(gg) the individual was scheduled to
commence employment and does not
have a job or is unable to reach the
job as a direct result of the COVID-
19 public health emergency;
(hh) the individual has become the
breadwinner or major support for a
household because the head of the
household has died as a direct result
of COVID-19;
(ii) the individual has to quit his or
her job as a direct result of COVID-
19;
(jj) the individual's place of
employment is closed as a direct
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result of the COVID-19 public health
emergency; or
(kk) the individual meets any
additional criteria established by the
Secretary for unemployment
assistance under this section . . . .
[15 U.S.C. § 9021(a)(3)(A).]
Plaintiff testified that she was not advised by a medical doctor or any
medical professional to self-quarantine. She further stated she did not test
positive for COVID-19 nor did anyone else in her household. Therefore,
plaintiff did not fall within any of the enumerated statutory categories as her
decision to stop working was not one of the COVID-19 related reasons
delineated under the CARES Act. The record supports the Board's
determination that plaintiff was ineligible for CARES Act benefits for the weeks
ending May 2, 2020, through October 10, 2020.
We acknowledge "the hardship many people . . . endured during the 2020
lockdown as a result of the COVID-19 pandemic." Sullivan, 471 N.J. Super. at
152. However, there was sufficient credible evidence that plaintiff's
unemployment between May 2, 2020, and October 10, 2020, arose solely from
her "decision to stop working due to her family's decision to self-quarantine," a
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reason that renders her ineligible for CARES Act benefits. Therefore, the
Board's decision was not arbitrary, capricious, or unreasonable.
Affirmed.
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