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Bernal v. Board of Review

July 23, 2007


On appeal from a final decision of the Board of Review, Department of Labor, 92,896.

Per curiam.


Submitted July 3, 2007

Before Judges Parker and Seltzer.

Claimant, Jacqueline Bernal, filed a claim for unemployment benefits. A deputy to the Director of the Division of Unemployment and Disability Services granted the application and Bernal's former employer, SDH Services East, LLC (SDH) appealed. After a hearing, the Appeal Tribunal reversed and declared Bernal ineligible for benefits. The Board of Review affirmed and Bernal appeals from that decision. Because the agency decision is supported by substantial credible evidence in the record, we affirm. R. 2:11-3(e)(1)(D).

We note at the outset that our review of the decision of an administrative agency is relatively narrow. Our task is simply to determine whether the agency could reasonably have reached its conclusion based on the proofs before it. We, therefore, look only to determine if "substantial credible evidence supports an agency's conclusion." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). If so, we may not substitute our own conclusion for that of the agency, even if we would have decided differently were the matter presented to us initially. Ibid.

N.J.S.A. 43:21-5 provides, in pertinent part, that "[a]n individual shall be disqualified for benefits: (a) [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 . . . ." The issue before the Appeal Tribunal was whether Bernal had "left work voluntarily without good cause attributable to such work."

SDH produced testimony of Michael Perone, who was the general manager for SDH's food-service operations at what we infer was a complex occupied by Merrill Lynch in Pennington. Bernal worked at that location until September 26, 2005, when according to Perone, "[s]he resigned". He explained that on August 9, 2005, Bernal was told that, because the client desired "a more qualified person," she would be required to move to another location that was only five minutes by foot from where she had worked. Alternatively, she was given the choice of remaining at her present location but in a non-supervisory position. The change of position would not result in a loss of pay.

Bernal was given one week to think about her options but apparently left work temporarily as the result of "a personal issue with her family." When she returned, she indicated that "she didn't want to do either [and] that she prefers to work at" a third location. Although that location was initially unavailable, Perone was able to accommodate Bernal's preference and so advised her the next day. Nevertheless, Bernal then said she "did not want" to work at the offered location and insisted on returning to her original location. Perone "told her there was no longer a position open at [that location] . . . and the only position open was at [the location] she requested." Bernal refused and did not return to work.

Perone testified that Bernal "stated that she did not want to work . . . for another operation. We were transferring her position from one building to another and she did not work in that operation. And she wanted to get laid off . . . or return to her original position." When questioned by the examiner, Bernal's responses were equivocal. She did not deny the testimony of Perone, indicating only that she was unsatisfied with the explanation given for her removal from the position she had held.

Based on that testimony, the Tribunal concluded that Bernal was offered a job which would have differed minimally from her then-current position. Nevertheless, "[t]he claimant decided not to accept the position as she was upset she would no longer work in a supervisory role, and subsequently separated herself from further employment." The Tribunal found that the voluntary separation disqualified claimant from benefits pursuant to N.J.S.A. 43:21-5.

On appeal, Bernal now argues that the testimony of Perone incorrectly related the actual events and that she did not leave her job voluntarily. However, the determination of the Board of Review that claimant left her work voluntarily is supported by substantial, credible evidence and its legal conclusion that the reason for separation was voluntary and without good cause attributable to the work was appropriate. R. 2:11-3(e)(1)(D),(E). We have no basis to interfere with that decision.


20070723 ...

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