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Stankiewicz v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 28, 2008

ALEKSANDRA STANKIEWICZ*FN1, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND MARIOLA PERKOWSKA, D.D.S., RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2008

Before Judges Parrillo and Lihotz.

Appellant Aleksandra Stankiewicz appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's (tribunal) determination that she was disqualified from receiving unemployment compensation benefits because she left work "voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). In light of our standard of review, the record satisfies us that the final decision of the Board was properly premised upon facts in the record and its determination was consonant with relevant statutory provisions.

From November 2005 until May 17, 2007, appellant worked as a dental assistant for Mariola Perkowska, D.D.S. In addition to dental assistant duties, appellant performed secretarial functions, sterilized the equipment, and cleaned the office.

Appellant asserts she was terminated when she ignored her employer's instructions and discarded a plastic bite wing holder (bite block) that was used when taking a patient's x-ray rather than sterilizing the piece for reuse.*fn2 Dr. Perkowska became angry and explained if appellant did not like working with her, she could leave.

Dr. Perkowska's version of the incident was not inconsistent with appellant's however, she disputed appellant was fired. Dr. Perkowska stated after she reprimanded appellant, she demanded to get paid and expressed displeasure with what occurred. Dr. Perkowska stated appellant was free to find a better job. Appellant retorted she had and was not returning. Dr. Perkowska stated she liked appellant's work and did not want her to leave.

The examiner also accepted the telephonic testimony of Agnes Rogucka, another employee who witnessed the interactions between appellant and Dr. Perkowska on May 17, 2007. Rogucka confirmed Dr. Perkowska asked appellant if she was returning to work on Monday and appellant stated she was not and had another position.

Appellant's application for unemployment benefits was denied and she thereafter appealed. Following a hearing conducted on July 6, 2007, with additional witness taken telephonically on July 9, 2007, the tribunal affirmed the deputy's decision. The tribunal credited Dr. Perkowska's testimony and found appellant's reprimand was not inappropriate. Further, the tribunal found appellant was not credible, determined she "made no effort whatsoever to keep her job" and concluded she was disqualified from receiving unemployment benefits as she had not shown good cause to justify "leaving the ranks of the employed and joining the ranks of the unemployed."

Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964). The Board affirmed this decision.

The scope of our review is very limited. We will not disturb an agency decision unless it is arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as a whole. 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 strong presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). Also, in our review, we accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing, Board of Educ. of Neptune v. Neptune Twp. Educ. Ass'n., 144 N.J. 16, 31 (1996), and we are obligated to give deference to credibility determinations made by the factfinder. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

An employee who leaves a job voluntarily without good cause attributable to the work is statutorily disqualified from receiving unemployment benefits. N.J.S.A. 43:21-5(a). "Good cause" is defined in the regulations as "a reason related directly to the individual's employment, which [is] so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). Causes personal to an employee and not attributable to the work come within the disqualification of the statute. Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)); White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977).

"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." Domenico, supra, 192 N.J. Super. at 288 (citation and quotations omitted). We have stated, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid.

Giving due regard to the appeals examiner who had the opportunity to assess the credibility of appellant, Dr. Perkowska, and Rogucka, we conclude there was sufficient, competent and credible evidence in the record supporting the finding that appellant left her job voluntarily, without good cause attributable to the work, disqualifying her receipt of unemployment benefits. N.J.S.A. 43:21-5(a). Accordingly, we respect the Board's expertise and defer to its considered determination. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998).

Affirmed.


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