Full 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2301-24 NITA A. SARZO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and EARLY LEARNING 101 LLC, Respondents. ______________________________ Submitted September 15, 2026 – Decided October 27, 2026 Before Judges Gummer and Paganelli. On appeal from the Board of Review, Division of Unemployment Insurance, Department of Labor and Workforce Development, Docket No. 304698. Goldstein Ballen O'Rourke & Wildstein, attorneys for appellant (Henry P. Apryasz, on the brief). Jennifer Davenport, Attorney General, attorney for respondent Board of Review (Sookie Bae-Park, Assistant Attorney General, of counsel; Gary W. Baldwin, Deputy Attorney General, on the brief). PER CURIAM Nita A. Sarzo appeals from a February 19, 2025 final decision of the Board of Review (Board) affirming the decision of the Appeal Tribunal (Tribunal) that she was disqualified from receiving unemployment benefits because she had voluntarily quit her employment without good cause. Because we conclude Sarzo failed to sustain her burden to establish the Board's decision was arbitrary, capricious, or unreasonable, we affirm. The undisputed facts reveal Sarzo was employed by Early Learning 101 LLC in March 2022. She sustained a knee injury. On March 18, 2022, Sarzo emailed the employer and advised she was awaiting the results of an MRI and that she could "not go in for a[t] least a week or until he[r doctor] g[o]t[] the MRI [results] back." In June 2022, Sarzo filed a claim for benefits under the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-1 to -71. In August, she was informed that she was disqualified from benefits because she had "left [he]r job voluntarily" for "a personal reason"—her injury—and therefore her departure did "not constitute good cause attributable to . . . work." (Capitalization modified). A-2301-24 2 Sarzo filed an appeal from the disqualification determination. In June 2023, Sarzo and her counsel participated in a Tribunal hearing. The Tribunal determined "[a]fter [Sarzo's] scheduled return date, [she] attempted to contact the owner via telephone, text messaging[,] and e[]mail in an attempt to return to work but received no response." Therefore, the Tribunal determined Sarzo "did not leave the job voluntarily" and reversed the disqualification. The employer appealed the reversal, claiming its Director, Rhonda Moore, had been unavailable for the earlier hearing "due to medical reasons" and that it "disagree[d] with the majority of the 'finding of facts'[] as told by" Sarzo. The Board remanded the matter for "re[-]hearing and [new] decision" by the Tribunal. The first re-hearing date was scheduled for January 8, 2024. The examiner reviewed Sarzo's testimony, from the earlier hearing, noting Sarzo had stated her doctor had "released [her] to return to work . . . without restrictions" and she advised the employer she could return after a week and she "kept calling her, texting her, emailing her, and she never responded." Moore testified she had not received correspondence notifying her of Sarzo's ability to return to work. Further, she testified that she had asked Sarzo to "keep [her] posted," but she "didn't hear anything." Moore stated there "was A-2301-24 3 no more correspondence. . . . [N]o email, no text, no telephone call that [she] received[.]" The examiner asked Sarzo if she had "any evidence that [she] attempted to contact . . . Moore." Sarzo responded that she believed she did, but it was "probably on her laptop and [she] c[ould no]t get access." Thus, the examiner continued the hearing and allowed Sarzo "to provide documentation of her attempts to try to contact the employer." Sarzo was instructed to "provide [the examiner] and . . . Moore with a copy of [he]r attempts to contact" Moore. The hearing resumed on January 31, 2024. Sarzo did not produce additional materials. She admitted she had never tried to email Moore. She explained that she had tried to contact the employer twice, by phone. She asserted that on the first attempt, there was no answer and on the second she had left a message requesting Moore to call her back. Sarzo testified she did not have Moore's cellular phone number, so she had called the employer's phone number. Further, Sarzo testified she had advised Moore during a March 24, 2022 phone conversation that the doctor had told her should could go "back to work," but Moore advised her she needed to be "100% better." Moore testified Sarzo had her cellular phone number, she had spoken with Sarzo using that phone on March 17, 2022, and they had historically "talk[ed] A-2301-24 4 . . . [o]n cell phones many evenings[.]" Further, Moore denied ever "receiv[ing] any phone calls or voicemail messages" or having a conversation with Sarzo on March 24, 2022. Moore testified "March 17[] was the last conversation." The Tribunal found Sarzo's "testimony was inconsistent with dates and her attempts to contact the employer." The Tribunal found Sarzo "did not attempt to reach the employer via e[]mail and [noted that she] testified that she did not have the employer's cellular telephone number," despite "admitt[ing] that the employer called her . . . from her cellular telephone." In contrast, the Tribunal found Moore's "testimony was clear, consistent, and more credible than that of" Sarzo's. The Tribunal "g[a]ve[] credibility weight to the employer in this matter." In addition, the Tribunal found Sarzo had failed to "provide the employer with medical documentation indicating she was able to work, after being instructed to do so" and found there was "no evidence presented to indicate that [Sarzo] attempted to preserve her employment by contacting the employer to keep her updated on her status and/or to inquire on when/if she could return to work." The Tribunal concluded that Sarzo was disqualified from benefits, pursuant to N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.11, because she had A-2301-24 5 "failed to return from a medical leave of absence and made no attempt to remain employed[,]" and therefore her "separation [wa]s considered to be a voluntary quit without good cause[.]" Sarzo appealed the Tribunal's decision. The Board determined no further hearing was necessary because Sarzo had been "given a full and impartial hearing and a complete opportunity to offer any and all evidence[.]" The Board "carefully examined" Sarzo's allegations, and the Tribunal's factual findings and decision, and affirmed the Tribunal's decision. Sarzo appeals the Board's decision. On appeal, Sarzo makes a factual argument. She contends that after being out of work for the week, she "felt better and attempted to contact her employer about returning to work but received no response back from the [e]mployer." Based on these asserted facts, she contends the Board's decision that she "left work voluntarily" was "arbitrar[y] and erroneous[]" and should be reversed. "We review a decision made by an administrative agency entrusted to apply and enforce a statutory scheme under an enhanced deferential standard." E. Bay Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493 (2022). Accordingly, "we will disturb an agency's adjudicatory decision only upon a finding that the decision is 'arbitrary, capricious or unreasonable,' or is A-2301-24 6 unsupported 'by substantial credible evidence in the record as a whole.'" Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App. Div. 2022) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The burden to show an agency's abuse of discretion "is on the challenger." Parsells v. Bd. of Educ. of Borough of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022), aff'd as modified, 254 N.J. 152, 168 (2023). In determining whether agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine: (1) [W]hether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Sullivan, 471 N.J. Super. at 156 (alteration in original) (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).] "[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come A-2301-24 7 to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Rev., 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Rev., 200 N.J. Super. 74, 79 (App. Div. 1985)). We "must . . . give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Rev., 299 N.J. Super. 346, 348 (App. Div. 1997). Applying this well-established law, we conclude Sarzo failed to establish the Board's decision was arbitrary, capricious, or unreasonable. The Board made credibility determinations and found Moore's testimony more believable. Given our standard of review, we have no basis to disturb the Board's factual findings, nor its conclusion that Sarzo voluntarily left employment without good cause. Affirmed. A-2301-24 8