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Garruto v. Board of Review


January 4, 2008


On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 134,807.

Per curiam.


Submitted December 19, 2007

Before Judges Lisa and Lihotz.

Appellant Vita Garruto appeals from a final decision by the Board of Review (the Board), Department of Labor, which affirmed a determination by an Appeal Tribunal (Tribunal) that she was disqualified from receiving unemployment compensation benefits because she left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). We affirm.

Garruto was employed as the office manager of Dominion Enterprises, formerly known as Trader Publications (Dominion). Dominion publishes the "Employment Guide" and operates an internet web page. Vincent Chiappone is a district manager for Dominion and was Garruto's supervisor.

Chiappone was responsible for sales advertising. Customers could purchase advertisements in the classified section of a website or the newspaper that promotes job fairs. Garruto would "book" the sales orders received by entering the information specified in the customer's contract into the company's computer system.

Dominion was subject to an internal audit by its accountants in July 2006. The audit was to assure Dominion was following "best practices."

Garruto testified she voluntarily terminated her employment on November 3, 2006, "[b]ecause I was being blamed for illegally obtaining contracts[,] which I had no choice but to do." She explained that, on a daily basis, she was told by Chiappone to "change" the contracts previously executed by the customer, presumably in an effort to boost the sales volume of certain advertising products. Chiappone allegedly told Garruto that he intended to explain any discrepancies to the auditors by stating she prepared the contracts incorrectly.

Also, Garruto testified that Chiappone was selling the advertising for less than he should. She related the example: "if an ad was one thousand dollars and we could sell it for six hundred[,] we'll go ahead and sell it for six hundred every single contract." After the audit, Garruto assumed the office would be "missing money" and she would be blamed.

Garruto acknowledged that she did not challenge Chiappone or object to his instructions. Also, she did not tell any other supervisor or the corporate office that she believed Chiappone's actions were inappropriate. Also, she admitted that she had "joked" that her pay was lower than "New York standards." Finally, Garruto stated that she intended to leave her employment without offering explanation to Chiappone.

Chiappone testified that Garruto resigned for personal reasons; specifically, she was dissatisfied with her pay. She was being paid $40,000 per year. A scheduled increase would increase her pay to the range of $45,000 to $47,500 per year.

However, she requested pay between $55,000 and $60,000. Chiappone asked her to continue working while she looked for alternative employment because he "valued [her] as an employee."

Chiappone testified that the only time he asked Garruto to change a contract was to be certain his signature appeared if he had forgotten to do so. Also, Chiappone explained that after receiving an oral report, he was not advised of any significant infractions identified by the auditors. On the issue of allocating funds paid by customers, Chiappone discussed a process called "bundling." For example, if the fee charged was $500 for job fair advertising, a portion of the funds would be allocated to promote the job fair on Dominion's website with the balance paying for the job fair promotion.

Garruto filed an application for unemployment benefits on November 5, 2006, which the Deputy Director of the Division of Unemployment and Disability Insurance (Deputy) denied. Garruto appealed. After the Tribunal's telephonic hearing on January 3, 2007, it affirmed the Deputy's determination that Garruto was "disqualified for benefits" as she "left work voluntarily on 11/06/06" without "good cause attributed to the work" and finding Garruto was "dissatisfied with the working conditions." The Tribunal also found Garruto did not "exhaust all opportunities to resolve the problems with [her] employer before leaving." The Board then affirmed the Tribunal's decision.

N.J.S.A. 43:21-5(a) disqualifies a claimant for unemployment 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 and works four weeks in employment, . . . and has earned . . . at least six times the individual's weekly benefit rate . . . ." An employee who has left work voluntarily has the burden of proving that he or she did so with good cause attributable to the work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). We have observed that "[w]hile the statute does not define 'good cause,' our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). In defining the circumstances that meet that requirement, we have said "the test is one of ordinary common sense and prudence." Id. at 288. Further, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. This test is fact-sensitive. As a result, when the agency's findings of fact are challenged on appeal, we will defer to it so long as there is sufficient credible evidence in the record to support its findings.

On appeal, Garruto challenges the factual findings upon which the Board's decision rests. She argues, as she did before the Board, that she was required to input altered customer contractual orders to enable Chiappone to achieve more beneficial sales quotas. Garruto suggests she left before being fired. To support her claim, she suggests the independent audit proved her claim of contract alterations. However, in the record, there is no evidence of the auditor's findings, except Chiappone's comments of benign mistakes.

In our review of the decision of an administrative agency, we defer to the agency's findings when they are supported by sufficient credible evidence in the record, and we defer to the agency's judgment so long as it is not arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001). A "strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility." Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come 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, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

Applying that standard here, we are satisfied the record supports the Board's determination that Garruto left her job either for reasons of financial dissatisfaction or because of an unfounded expectation of a negative audit result. Additionally, if Garruto had believed that untoward practices were performed by her immediate supervisor, she had the means and ability to report them to his supervisor or the corporate office. She did not. Garruto revealed her objection to what she felt was "unethical" or "illegal" conduct in her Tribunal testimony.

Based on this record, we determine that the Board's decision was supported by the record requiring no intervention by us. We respect the Board's expertise and defer to the Board's considered determination. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998).



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