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Pindar v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2008

MILING PINDAR, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND SECURE FREIGHT SEAL, INC., USA, D/B/A CLASSIC F.A. PACKERS & SHIPPERS, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 115,023.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 15, 2008

Before Judges Yannotti and LeWinn.

Appellant Miling Pindar appeals from a final determination of the Board of Review (Board), dated November 22, 2006, which found that she was disqualified from unemployment benefits pursuant to N.J.S.A. 43:21-5(a), because she left her job voluntarily without good cause attributable to the work. We affirm.

Appellant was employed by Secure Freight Seal, Inc., USA as a registrar from November 19, 2001 to April 20, 2006, when she quit her job because of dissatisfaction with the treatment that she received from her supervisor, Peter J. Barc. Appellant filed a claim for unemployment benefits, as of May 7, 2006.

On May 24, 2006, a deputy to the Director of the Division of Unemployment Insurance determined that appellant was disqualified for benefits because her reasons for leaving the job did not constitute good cause attributable to the work. The deputy found that appellant left her job voluntarily because she believed that her supervisor's criticism of her job performance was unduly severe. The deputy found, however, that the employer's criticism was reasonable.

Appellant sought review of the deputy's determination by the Appeal Tribunal, which conducted a telephone hearing in the matter on June 22, 2006. Appellant testified that she left her job because she "felt that [she] needed to leave because [she] kept having altercations with" Barc. Appellant said that she and Barc "had a lot of verbal disagreements." She stated that she did not like the way that Barc addressed her. At times, Barc would yell at her or use obscenities. She said that she felt that Barc "was condescending at times" and she did not "want to keep going through that because it was emotional for [her]."

Appellant was asked to describe the "last issue that caused" her to quit. She testified that on April 20, 2006, there was no milk in the office, and she asked a co-worker to go to the store because she could not leave. She stated that the incident "was just a silly little thing but it was blown up out of proportion." Appellant said that Barc called her on the phone and yelled at her. Barc told her that he was "sick and tired of having people go to the store."

According to appellant, Barc was "very mean about it." Appellant testified that, after she got off the phone, she said that she was "not going to put up with getting yelled at over milk." Appellant went to Barc's office, knocked on the door, gave him her radio and keys, and quit. The appeals examiner asked appellant why she needed the milk. Appellant replied that she "wanted to have tea that morning." She explained, however, that the milk was used by others in the office for coffee or cereal.

Appellant further testified that she had other verbal altercations with Barc. According to appellant, if Barc was unhappy, he would yell at anyone "in the vicinity[.]" Appellant said that she did not think anyone should be yelled at in the workplace and it was "very unprofessional."

Appellant also recounted an incident in the warehouse that occurred on February 21, 2006. Appellant testified that Barc became angry about the manner in which empty crates were being used. He called appellant and another employee into the warehouse and "began to yell about using crates." Appellant said that Barc "slammed" the crates around the warehouse. One crate was on a dolly and it "nudged" appellant in the leg. Appellant stated that she was not hurt but she was upset by the incident.

Appellant also stated that a few days prior to "the milk incident," she was taking inventory. Barc became angry because his tape measure broke and he threw it out of the truck. The tape measure hit appellant on the foot but she was not hurt. Barc said that he was sorry but appellant asserted that this was "the kind of anger this man ha[s]" and it upset her "to be around that[.]"

Barc testified that on April 20, 2006, appellant noticed that there was no milk in the refrigerator and she asked a senior staff member to go get her milk for her tea. Barc said that the employee was uncomfortable with the request because "he knew he was on the clock." Barc called appellant and told her that she was not to send senior staff for milk and appellant could get milk from the "local lunch" that comes to the office at 10:15 a.m.

Barc said that about three minutes later, appellant barged into his office, threw her phone and keys at him, and quit. Barc told appellant that she "can't just walk out." Barc asserted that appellant did not respond and she "stormed out of the office." Barc was asked whether he yelled at appellant. He said that his voice was louder than usual.

Barc was asked about the incident in the warehouse on February 21. He stated that he did not recall the incident. Barc said that there were many incidents with appellant. Barc also did not recall "throwing a crate around the warehouse" and hitting appellant with a crate. He stated, "[w]e're an industrial facility. It's a possibility that crates could have rolled. They're on dollies . . . "

Barc also did not recall the incident involving the tape measure on April 18. He said that "[t]here were too many issues with [appellant]" and he could not "distinguish" one from another. Barc testified that he had documented "multiple" incidents when appellant either left the workplace or was asked to leave "because she lost control."

Barc further testified that, when appellant quit, the company had work for her to do. Barc said that appellant quit "at the busiest time of [the company's] season[.]" Appellant left the job without providing notice or any warning. Barc sent appellant several e-mails asking her to return to work, but he received no response. Barc stated that if appellant had not resigned, he would not have fired her.

The Appeal Tribunal issued a decision dated June 23, 2006, and found that appellant had "worked in an abnormal environment, and her leaving [the job] was with good cause attributable to the work." The Appeal Tribunal therefore found that appellant was not disqualified for benefits pursuant to N.J.S.A. 43:21-5(a).

Secure Freight filed an appeal to the Board from the decision of the Appeal Tribunal. Secure Freight argued that there had been "a very poor phone connection" during the hearing and, as a result, the hearing had become a "one-sided" proceeding. The Board remanded the matter for a new hearing and new decision on all issues because it did not have "a complete and audible record" for purposes of review.

The Appeal Tribunal conducted the second hearing on September 14, 2006. Appellant again testified about "the milk incident" on April 20, her resignation that day, the incident involving the tape measure that occurred on April 18, and the "confrontation" that took place on February 21 in the warehouse. Appellant said that profanity had been used casually in the workplace. However, she conceded that, at times, she used profanity in the workplace. Barc again testified about the incident on April 20, and appellant's resignation on that date.

The Appeal Tribunal issued a decision dated September 15, 2006, in which it upheld the deputy's initial determination and found that appellant was disqualified for benefits. The Appeal Tribunal stated in pertinent part that:

Inability to work in harmony with one's co-workers does not give one good cause attributable to such work for voluntarily leaving. The claimant has not shown that her working conditions [were] abnormal. Although the claimant contends that [her supervisor] may have been abrupt and unpleasant in the way he spoke to the claimant, the claimant has not demonstrated that he was abusive and harassing. The claimant has not shown that her reason for leaving, without notice, was so severe as to leave the ranks of the employed to join the ranks of the unemployed. Furthermore, the claimant's contention that long standing working conditions somehow became abnormal on 4/20/06, the day she left without notice, is rejected by this Tribunal.

On September 20, 2006, appellant was ordered to return the unemployment benefits that had been paid to her following the Appeal Tribunal's initial determination that she was eligible for benefits. Appellant filed a timely appeal from the Appeal Tribunal's September 15, 2006 decision. The Board issued its final decision on November 22, 2006, affirming the Appeal Tribunal's determination.

On appeal, appellant argues that she left her job on April 20, 2006 because she "felt" that her "integrity and dignity" had been compromised "as a result of the hostile working environment" to which she had been subjected. Appellant contends that the record shows that she left work for good cause attributable to the work and therefore the Board erred by finding that she was disqualified for benefits under N.J.S.A. 43:21-5(a).

We have carefully reviewed the record in light of appellant's arguments and the applicable law. We are convinced that appellant's arguments are entirely without merit. We therefore affirm the Board's final decision substantially for the reasons stated by the Appeal Tribunal in its decision dated September 15, 2006, as affirmed by the Board. We add the following brief comments.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). We may only reverse a final decision of an administrative agency "in those rare circumstances" when the "agency['s] action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

Our review of a final decision of an administrative agency is limited to four inquiries: 1) whether the decision is contrary to either the State or Federal Constitution; 2) whether the decision violates express or implied legislative policies; 3) whether the record contains substantial evidence to support the findings on which the agency based its decision; and 4) whether the agency clearly erred in applying the legislative policies to the facts by reaching a decision that could not reasonably have been made on a showing of the relevant factors. Ibid. Applying this standard of review, we are convinced that the Board's final decision must be affirmed.

New Jersey's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30, provides in pertinent part that an individual who leaves "work voluntarily without good cause attributable to such work" is disqualified from receiving unemployment benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work" until such time as the individual becomes re-employed, works four weeks, and earns "in employment at least six times the individual's weekly benefit rate[.]" N.J.S.A. 43:21-5(a). The statute does not define "good cause." However, that term has been construed to mean a "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Brady v. Bd. of Review, 152 N.J. 197, 214 (1997) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).

In determining whether an employee had "good cause" to leave his or her employment, we apply a test of "'ordinary common sense and prudence.'" Ibid. (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "Good cause" exists if the employee's decision to leave his or her employment was "'compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983)). The claimant has the "'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Zielenski, supra, 85 N.J. Super. at 53-54).

We are convinced that there is sufficient credible evidence in the record to support the Board's finding that appellant left her job on April 20, 2006 voluntarily, rather than for good cause attributable to the work, and therefore was disqualified for unemployment benefits under N.J.S.A. 43:21-5(a). Appellant may have been dissatisfied with her working conditions, and she may have believed that her supervisor's actions and statements were unprofessional and disrespectful. She also may have believed that her work was not appreciated. However, the record supports the Board's determination that appellant's working conditions at Secure Freight were not abnormal or hostile, and she did not leave her job there for good cause attributable to the work.

Affirmed.

20080430

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