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Sullivan v. Board of Review


May 21, 2008


On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, 133,734.

Per curiam.


Argued April 28, 2008

Before Judges Lintner and Sabatino.

Appellant, Mary C. Sullivan, challenges the Board of Review's final agency decision issued on February 8, 2007, determining that she was not entitled to receive certain unemployment benefits after she left her job with her employer, CMA CGM (America), Inc., also known as MacAndrews & Co., Ltd. ("MacAndrews"), in the fall of 2006. After a hearing before the Appeal Tribunal at which Sullivan testified, the Board found that Sullivan had quit her position voluntarily, and without good cause attributable to the work. Pursuant to N.J.S.A. 43:21-5(a), the Board, therefore, concluded that Sullivan was ineligible for benefits, except for a two-week interval from October 29 to November 11, 2006, in which her employer told her not to return after she had given two weeks notice of her resignation. We affirm.

Sullivan worked in New Jersey for MacAndrews, which is a British trade company whose American operations are overseen from London, from 2000 through 2006. She was assigned in 2004 to work as an owner's representative, a job that involved the pricing of cargo as well as managing sales and customer service activities.

On October 9, 2006, the company announced that it was moving another employee, Adnan Khan, to the United States to serve as its trade manager. At or about the same time, an employee with the company in London, Anas Haykal, circulated an e-mail, announcing that "[i]n view of the under-performance we have shown in the past few weeks . . . pricing is no longer controlled in New Jersey." This announcement had the effect of removing Sullivan's job functions as to pricing.

Sullivan claims that she was humiliated by the e-mail announcement, even though it did not mention her by name. She also feared that the company would eventually have Khan replace her entirely. Her fears stemmed from the fact that Khan was being paid a much higher salary than Sullivan, and also because he is a Dubai national who might be perceived as better suited than she to interact with MacAndrews's customers in India and the Middle East.

These events prompted Sullivan to tender her resignation on October 30, 2006. She immediately applied for unemployment benefits. At the ensuing hearing before the Appeal Tribunal, Sullivan contended that, in effect, she had been constructively discharged. Sullivan admitted, however, that the company had not taken away her responsibility to manage its sales and marketing in North America, and that she could have filled her work week by making sales calls to those locations. Sullivan did not sustain any reduction in pay. There is no proof that any of her supervisors told her that they were planning on firing her. To the contrary, Sullivan acknowledged that when she contacted her superiors about Khan's arrival, they "swore up and down" that they did not intend to have him replace her.

The Appeal Tribunal determined that Sullivan was disqualified for benefits after November 11, 2006, the effective date of her departure from MacAndrews, because she had quit voluntarily for reasons not attributable to her work. N.J.S.A. 43:21-5(a). The Board of Review sustained that finding in its final decision.

As a preliminary matter, we consider the fact that Sullivan's former employer, MacAndrews, has not opposed her application for benefits, either in the hearing before the Appeal Tribunal or in the ensuing appeals to the Board of Review and this court. Even so, the employer's opposition is not essential to a denial of benefits where they are not authorized by statute.

The Board of Review has a statutory obligation to preserve the integrity of the State's Unemployment Fund and to administer benefits under the criteria established by law. See N.J.S.A. 43:21-6(e). The Board's duty is to "preserve the fund for the payment of benefits to [eligible] individuals and to protect it against the claims of others who would prefer benefits to suitable jobs." Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 455 (1953); see also Heulitt v. Bd. of Review, 300 N.J. Super. 407, 412 (App. Div. 1997). An employer's pecuniary interest in the outcome of a claimant's case is often comparatively slight. Consequently, employers frequently do not participate in proceedings before the Board and the Appeal Tribunal, but the absence of their participation does not circumscribe the Board's authority to apply the law. Heulitt, supra, 300 N.J. Super. at 412-13. Although we appreciate that Sullivan went to great lengths to obtain written confirmation from MacAndrews's management that the company does not care if she receives further benefits, the company's indifference is not dispositive.

In matters involving unemployment benefits, we accord particular deference on appeal to the Board's expertise, and its repeated construction and application of Title 43. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). We discern no reason to disturb the Board's findings in this case.

The Board correctly applied N.J.S.A. 43:21-5(a), which disentitles a claimant to benefits when he or she resigns voluntarily without good cause attributable to the work. See also N.J.A.C. 12:17-9.1. "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961). Good cause in this context "means a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

An employee's fear of being discharged, where the employer has not indicated that such a discharge is imminent, does not furnish the employee with cause to resign and collect benefits under Title 43. See Spatola v. Bd. of Review, 72 N.J. Super. 483, 485 (App. Div. 1962). That principle aptly recognizes that the conditions that lead to an employee's gloomy perceptions of job insecurity can improve, so that "his [or her] fears of being discharged might never have materialized." Ibid. Therefore, "good cause" for resignation requires that "the surrounding circumstances . . . demonstrate a lack of suitable continuing work[,] either concurrently or at a discernible and proximate point in time, together with statements or actions of the employer showing a very strong likelihood of imminent layoff." Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997).

Although we accept that Sullivan was worried about being discharged after Kahn was hired and her pricing functions were reassigned, she still retained full-time responsibilities over North American sales and suffered no loss in pay. Her superiors assured her that her job was safe. In sum, the Board essentially found that Sullivan resigned prematurely. There is ample proof in the record to support that finding.



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