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Milgram v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 5, 2009

SUSANNA MILGRAM, APPELLANT,
v.
BOARD OF REVIEW AND J.C. PENNEY COMPANY, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 165,457.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 10, 2008

Before Judges Parrillo and Messano.

Claimant Susanna Milgram appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision denying her claim for unemployment compensation benefits because she left the job voluntarily without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a). We affirm.

Claimant was employed by respondent JC Penney, Inc. (JC Penney) as a part-time clerk beginning on November 1, 2006 until her resignation ten months later on August 28, 2007. Although scheduled to work thereafter, claimant apparently became ill, did not report her absence in the ensuing two-week period, and never returned to work. On September 11, 2007, she telephoned her supervisor to inform that she was quitting to attend school full-time, which her erratic work schedule would otherwise not allow.

Claimant filed a claim for unemployment benefits effective September 16, 2007, which was denied by the Deputy Director of the Division of Unemployment and Disability Insurance on the ground that Milgram left work voluntarily without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a). Following a hearing, the Deputy's determination was upheld by the Appeal Tribunal, which concluded:

The claimant left work to attend school. This was a personal reason and was not attributable to the work. Therefore, the claimant is disqualified for benefits as of 08/26/2007, under N.J.S.A. 43:21-5(a), as she left work voluntarily without good cause attributable to such work.

The Board upheld the Appeal Tribunal's decision, which, on appeal, claimant argues is erroneous.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). 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. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). 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 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, unsupported 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); Gloucester County Welfare Bd., supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); New Jersey 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 she left work for good cause attributable to the work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "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) (quoting Zielinski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)).

Persons who leave work for good, but personal, causes are not eligible for unemployment benefits. Brady, supra, 152 N.J. at 213. By the same token, "[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." 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)). Rather,

[t]he 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. [Ibid. (citations omitted).]

So, for instance, leaving work to accept a substantially more favorable position is a good but personal reason, subject to the disqualification under N.J.S.A. 43:21-5(a). See Rider College v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). So too, an employee who quits out of dissatisfaction with her hours of employment leaves work without good cause, resulting in the statutory disqualification for benefits. Zielinski, supra, 85 N.J. Super. at 52-53. In Zielinski, the claimant's employment had been reduced from full-time to one or two days per week, compelling him to quit. Id. at 52. In finding the claimant disqualified, we reasoned:

The employee who works at an unsteady employment, averaging only one or two days a week at his accustomed trade, may well be dissatisfied with his job and seek another which provides more regular employment and better weekly wages. But he has a reasonable opportunity to pursue that course on the days when he is not working and may not reasonably expect the State to pay him a greater sum than it would be required to pay if he had kept his partial employment. [Id. at 53.]

Here, Milgram was hired as a part-time employee and although her hours may have been erratic, she remained steadily employed. She could have continued her employment while attending school or until she found a better job. By resigning her part-time job, Milgram traded gainful "partial employment for none at all," which required her disqualification for unemployment benefits. Ibid. Although her decision to attend school full-time may have been a good one, it was also a purely personal choice for which her employer bears no responsibility. Indeed, a Department of Labor regulation provides that an individual is disqualified for unemployment benefits where the individual quits her job to attend school. N.J.A.C. 12:17-9.1(e)3.

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. We discern no basis to disturb the Board's determination. Affirmed.

20090105

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