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Alexander v. Board of Review


September 22, 2008


On appeal from the Board of Review, Department of Labor, Docket No. 158,906. Julie Alexander, appellant pro se.

Per curiam.


Submitted September 8, 2008

Before Judges R. B. Coleman and Simonelli.

Appellant Julie Alexander appeals from a Final Decision of the Board of Review (the Board) that affirmed the Appeal Tribunal's determination disqualifying her from receiving unemployment compensation benefits under N.J.S.A. 43:21-5(a). We affirm.

The following facts are summarized from the record. Appellant began her employment with CVS Pharmacy in February 2005. On December 24, 2006, she transferred to the CVS Pharmacy in Toms River, where she worked as a shift supervisor until July 4, 2007.

On Saturday, June 30, 2007, appellant was involved in an incident with a customer, who became upset when appellant refused his request for a rain check for twenty-four Ajax dishwashing detergents. Because the store limit was four rain checks, appellant referred the customer to the store manager, who gave the customer what he wanted. On the way out of the store, the customer saw appellant laughing and thought she was laughing at him. He became irate and said that he was going "to get [appellant]," and that "he knew a lot of people around here and she was done." The store manager called the police. The police did not file charges against the customer.

Appellant reported to work the next two days without incident. However, appellant became upset when a shift supervisor advised her that she had "smoothed things over with [the] customer," and that she "special ordered what he needed."

Appellant felt that CVS was doing nothing about the incident, and she was afraid the customer would return to the store for the items. After expressing her fear to the store manager, appellant was permitted to work in the back office.

On July 5, 2007, appellant was still upset that CVS was doing nothing about the incident. She was off that day and called the district manager, advising him that she was not comfortable returning to the store. The district manager suggested a transfer to another store. Because appellant was going on vacation on July 14, 2007, the district manager also suggested that she work at the store until then and they would discuss the transfer when she returned from vacation. Appellant agreed. However, she later changed her mind and, without notice to anyone, decided not to return to work. Later on July 5, 2007, appellant's husband returned her keys to the store and picked up her paycheck.

Prior to leaving her employment, appellant did not request a transfer or a leave of absence, which were available to her pursuant to the CVS handbook she received upon commencement of her employment. Appellant also did not contact the Human Resources Department.

Appellant applied for unemployment benefits on July 6, 2007. A deputy claims examiner held her ineligible for benefits because she left work voluntarily without good cause attributable to the work. The Appeal Tribunal affirmed, concluding that:

The claimant left her position after an argument with a customer, however continued working over the next three or four days. Options were available to the claimant to address any concerns she may have had and although she had been successful transferring before [she] never requested it again.

The Board affirmed. This appeal followed.

Our role in reviewing an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's determination, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (citing City of Newark v. Natural Res. Council in the Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980)). We 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) (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)).

"'[We] will reverse the decision of an agency decision only if it is arbitrary, capricious, or unreasonable or it is not supported by substantial credible evidence in the record as whole.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)); Brady, supra, 152 N.J. at 210 (citing In re Warren, 117 N.J. 295, 296 (1989)). "The scope of review of an administrative decision 'is . . . whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Applying these principles, we affirm.

An employee shall be disqualified for benefits: (a) 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[.] [N.J.S.A. 43:21-5(a).]

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to the work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964)); Stauhs v. Bd. of Review, Div. of Employment Sec., 93 N.J. Super. 451, 457 (App. Div. 1967); Morgan v. Bd. of Review, Div. of Employment Sec., 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, Dep't of Labor & Indus., 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, Dep't of Labor & Indus., 158 N.J. Super. 172, 174 (App. Div. 1978)). An employee who leaves work for good, but personal, causes is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self v. Bd. of Review, 91 N.J. 453, 457 (1982). Also, "'[m]ere 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." Domenico, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, Div. of Employment Sec., Dep't of Labor & Indus., 69 N.J. Super. 338, 345 (App. Div. 1961)). Although threats of physical violence directed to an employee may constitute good cause for that employee to voluntarily leave employment, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (citing Condo v. Review Bd., 158 N.J. Super. 172, 175 (App. Div. 1978).

Here, the determination that appellant left work without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable. Appellant failed to avail herself of the options available to her to preserve her employment.



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