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Da Silva v. Board of Review


June 24, 2008


On appeal from the Board of Review, Department of Labor, Docket No. 141626.

Per curiam.


Submitted June 3, 2008

Before Judges Fuentes and Chambers.

Petitioner Melissa Da Silva appeals the denial of unemployment compensation benefits. We affirm for the following reasons.

Da Silva began her employment with Millenium BCP Bank on November 1, 2000, where she worked as a customer service representative. According to Da Silva, she resigned due to a conversation she had with her supervisor on January 8, 2007. On that day, Da Silva told her supervisor that she was thinking about going back to school and wanted to find out if her working hours could be adjusted to accommodate a school schedule. She maintains that her supervisor said:

Melissa, you're probably better off going to school anyway. I mean you're really going nowhere here. I mean you as a woman, you've reached your glass ceiling and let's face it, the only way you're going to move up in this place is if somebody bites the bullet and you really wouldn't be good in any other department.

Da Silva then testified that the next day her supervisor said nothing to her. The following day, Da Silva spoke with the Regional Manager and Marketing Manager about the conversation and told them that she could no longer work with this supervisor. The supervisor was brought into the meeting, and she asked the Marketing Manager if Da Silva was resigning and a discussion ensued. Da Silva was given the rest of the week off to think over the situation. Da Silva testified that she was "very uncomfortable" working with the supervisor because of the way the supervisor had spoken to her. As a result, she submitted her resignation on January 16, 2007.

Da Silva's letter of resignation does not set forth any of these difficulties. In the letter she stated that it was "a great honor and privilege" to work for the bank and indicated that she was leaving the bank because "I wish to take my professional career in another direction." The record of her exit interview indicates that she was leaving for career development purposes.

January 14, 2007, Da Silva applied for unemployment benefits. Her request was denied by the Director of the Division of Unemployment Insurance, who wrote:

You left your job voluntarily because of a personality conflict with your supervisor.

There is no evidence that the conditions of your work were so severe as to cause you to leave available work to become unemployed.

Therefore, your reason for leaving does not constitute good cause attributable to the work. You are disqualified for benefits.

A hearing was held by telephone before the Appeal Tribunal on March 22, 2007. In a written decision dated March 23, 2007, the appeals examiner found that Da Silva had left her job "voluntarily without good cause attributable to the work" and as a result, she was not entitled to unemployment benefits under N.J.S.A. 43:21-5(a). This decision was affirmed by the Board of Review on May 7, 2007. On appeal to this court, Da Silva also argues that her decision to resign was the culmination of other events, including being overlooked for promotions, but since these issues were not raised below, these contentions are unsupported by the record.

Under New Jersey law, a person is disqualified from receiving unemployment benefits if she "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). The employee has the burden of proving that this standard has been met. N.J.A.C. 12:17-9.1(c); Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "Good cause attributable to such work" is defined as "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). When evaluating the employee's reasons for leaving employment, "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.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). In order to receive unemployment benefits, an employee's decision to leave a job "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. An employee is expected "to do what is necessary and reasonable in order to remain employed." Ibid.

The facts in this case do not support a finding of good cause under this standard. We will not overturn an agency's ruling unless it is "arbitrary, capricious, or unreasonable." Brady v. Bd. of Review, supra, 152 N.J. at 210. If the Board of Review's factual findings are supported "by sufficient credible evidence," the court will accept them. Ibid. This record contains substantial evidence to support the Board of Review's conclusion that Da Silva left her job "voluntarily without good cause attributable to such work," N.J.S.A. 43:21-5(a), and thus she was not qualified to receive unemployment benefits.



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