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Gabovich v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2008

ZINOVY GABOVICH, APPELLANT.
v.
BOARD OF REVIEW AND NEWARK BOARD OF EDUCATION, RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, 146,538. Zinovy Gabovich, appellant pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 10, 2008

Before Judges Lintner and Parrillo.

Claimant, Zinovy Gabovich, appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision holding him disqualified for unemployment benefits under N.J.S.A. 43:21-5(a), for having left work voluntarily, without good cause attributable to the work. We affirm.

Claimant was first employed by the Newark Board of Education as a mathematics teacher on September 2, 2003. On April 4, 2006, he received an unsatisfactory evaluation from his supervisor, Mae Samuels, the Director of the Mathematics Department. According to claimant, he then spoke with the Chairman of the Mathematics Department, Ms. Evans, who advised him to leave because he was going to be fired. On April 11, 2006, claimant received, at his request, a second evaluation from Samuels. Claimant testified that he was told by Samuels that he had not improved his work and that he did everything wrong and that he "couldn't fight any more." Understanding that he did not have a "chance to save [his] job," he submitted his written resignation, effective the end of June 2006.

Samuels testified on behalf of the school. She confirmed that claimant received an unsatisfactory performance review. According to Samuels, claimant then went to the union to be reevaluated. However, before the reevaluation process was completed, claimant submitted his resignation. Samuels explained that, at the time she evaluated claimant, he still had his job, the reevaluation would have been conducted by the principal and the Union, the principal could have given claimant more time, gotten support for him, or determined that he was not capable and asked that his contract not be renewed.

Cynthia Fladger, the Technical Assistant of Personnel for the school explained that claimant was finishing his third year contract as a non-tenured teacher. According to Fladger, as of the time claimant resigned, no one from the Newark Board of Education told him that he was being given an option to either resign or be terminated.

In finding claimant ineligible for unemployment compensation benefits, the Appeal Tribunal found that claimant resigned prior to any notification that his contract would not be renewed. Indeed, the Appeal Tribunal found that there was "no evidence presented that the claimant's contract would not be renewed." On appeal, claimant asserts that because he was told by his supervisor that an unsatisfactory performance review is a sufficient reason for non-renewal of a contract, it is the same as a dismissal. Claimant also maintains that, because it was impossible to save his job, he was under pressure to resign because, had he waited to receive official notification of non-renewal, it would have greatly limited his chances for being hired again as a teacher.

Our scope of review of an agency decision is limited.

Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. See Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (stating the agency's determination carries "[a] strong presumption of reasonableness"). We also accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be "'arbitrary, capricious . . . unreasonable . . . [un]supported by substantial credible evidence in the record as a whole,'" or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester County Welfare Bd., supra, 93 N.J. at 391); see also Brady, supra, 152 N.J. at 2ll; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

Applying these principles, we are in complete accord with the Board's decision denying claimant benefits. The governing statute, N.J.S.A. 43:21-5(a), provides that an individual is disqualified for unemployment compensation benefits where that "individual has left work voluntarily without good cause attributable to such work." In order to avoid disqualification, the claimant has the burden to establish that he left work for "good cause attributable to [the] work." Brady, supra, 152 N.J. at 218. "Good cause means 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,' and the reasons for terminating employment 'must meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal citations omitted).

Persons who leave work for good, but personal, causes are not eligible for unemployment benefits. Brady, supra, 152 N.J. at 213. Rather, the decision to leave employment "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Id. at 214 (quotations omitted). It is the employee's "responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (quotations omitted).

Although a claimant may have a subjective fear of being terminated, such a fear alone is not sufficient to give rise to good cause attributed to work unless it is "'based upon definitive objective facts.'" Id. at 215 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993). Here, the question to be answered is whether claimant's termination was imminent as of April 11 when he submitted his resignation.

Ibid. At the time claimant submitted his resignation, the Board had not made a determination on whether he would be awarded a contract for the upcoming school year, and there was still time and procedures in place for him to improve his performance and convince the School District that he was accomplished enough to continue his employment.

N.J.A.C. 12:17-9.5, entitled, "Voluntary leaving work prior to imminent layoff or discharge," provides:

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days.

Thus, even if we were convinced that claimant's termination was imminent to qualify for unemployment benefits, which we are not, he would have had to submit his resignation within sixty days of separation. Claimant's resignation letter was submitted seventy-eight days prior to the end of the school contractual period. We are satisfied that the Board's decision finding claimant disqualified from unemployment benefits was "'supported by substantial credible evidence in the record as a whole.'" Barry, supra, 100 N.J. at 71 (quoting Gloucester County Welfare Bd., supra, 93 N.J. at 391). We discern no basis to disturb the Board's determination.

Affirmed.

20080625

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