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Mackowski v. Board of Review And Bonner Associates

June 5, 2008

PATRICIA A. MACKOWSKI, APPELLANT,
v.
BOARD OF REVIEW AND BONNER ASSOCIATES D/B/A ACME RUBBER STAMPWORKS, RESPONDENTS.



On appeal from a Final Decision of the Board of Review, Docket No. 142,885.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 12, 2008

Before Judges Parrillo and Gilroy.

Claimant, Patricia Mackowski, appeals a final agency decision of the Board of Review (Board) issued on May 11, 2007.

The Board's decision upheld an Appeal Tribunal's ruling that disqualified Mackowski from receiving unemployment benefits from January 21, 2007, pursuant to N.J.S.A. 43:21-5(a), because she left work voluntarily without good cause attributable to such work.

At the time relevant to this matter, Mackowski had been working for Bonner Associates as a customer service representative for the last seventeen years, since June 1990. She quit on January 24, 2007, apparently upset over a comment made by her boss, Lori Bierman.

On that day, after Mackowski's father was rushed to the hospital, she sent a text message to Bierman, advising that she would not be at work because of her father's medical condition. Bierman claims not to have read the text message because her cell phone was in her purse, so when Mackowski's husband called Bierman to confirm that his wife would not be at work, Bierman, not aware of the father's hospitalization, responded that due to Mackowski's absence, she would have to lock-up before picking her daughter up at 12:30 p.m.

Upset over Bierman's perceived lack of sympathy, Mackowski telephoned Bierman's mother to complain, but when the mother suggested that Mackowski try to resolve the situation herself, Mackowski stated that "[she] couldn't take it anymore[,]" and requested that Bierman be told to forward her final paycheck to her home. Mackowski never returned to work and never contacted Bierman directly about the incident. As directed, Bierman mailed Mackowski's final paycheck, along with a note explaining that she did not realize that Mackowski's father was in the hospital when she spoke to Mackowski's husband. Upset herself that Mackowski needlessly involved her mother in the situation, Bierman had no contact with Mackowski thereafter.

Mackowski filed for unemployment compensation benefits on February 11, 2007. The deputy claims examiner found Mackowski disqualified for benefits because she left work voluntarily without good cause attributable to such work. On appeal, the Appeal Tribunal agreed. While characterizing Bierman's telephone comments as "uncalled for" under the circumstances, the Appeal Tribunal nevertheless found they did not justify her quitting work:

The claimant quit in anger without first contacting the employer about what was said. The claimant did not do what a reasonable person should have done; she should have spoken to the employer about the nature of the comment and not the employer's mother. In this matter, clearly the claimant acted in haste without thinking about the ramifications of her actions. The claimant does not demonstrate that she had sufficient cause to justify her leaving the work.

As noted, the Board affirmed the decision of the Appeal Tribunal.

On appeal, Mackowski argues that the Board erred in not finding that she had good cause to resign attributable to work under N.J.S.A. 43:21-5(a). We disagree.

In reviewing final agency decisions, "[o[ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." In Re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). In matters involving unemployment benefits, we accord particular deference to the ...


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