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Mackowski v. Board of Review And Bonner Associates

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 expertise of the Board of Review in such matters, 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).

N.J.S.A. 43:21-5(a) provides that a claimant is disqualified for benefits:

For 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 in employment at least six times the individual's weekly benefit rate.

An employee who has left work voluntarily has the burden of proving that she did so with good cause attributable to the work. Self v. Bd. of Review, 91 N.J. 453, 456-57 (1982); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). While 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) (citations and internal quotations omitted). In Domenico, we further explained:

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. 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. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed. [Id. at 288 (emphasis added) (citations and internal quotations omitted).]

As evidenced by her own admission that she had walked off the job several times throughout her seventeen-year employment, there is substantial credible proof in the record that Mackowski left voluntarily for personal reasons because of an apparent misunderstanding that she refused to discuss with Bierman. It is also clear that by declining to speak with Bierman about the incident, Mackowski did not do what is necessary and reasonable to remain employed and that she had other choices than to leave work for certain unemployment. Consequently, Mackowski was properly disqualified for receipt of unemployment compensation 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 the work.

Affirmed.

20080605

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