March 30, 2009
ALESSANDRA VERA, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND ANY GARMENT CLEANERS #76, RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 152,714.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2009
Before Judges Carchman and Simonelli.
Appellant Alessandra Vera appeals from a decision of the Board of Review affirming a decision of the Appeal Tribunal that she was disqualified for unemployment compensation benefits and liable for refund of benefits paid during the period of such disqualification. We affirm.
The following facts are summarized from the record. Appellant began her employment with Any Garments Cleaners in August 2004. In 2006, she became a full-time cashier manager at a salary of $500 per week.*fn1 In June 2006, appellant requested a two-week vacation because she had to take care of her son, who has special needs. The employer advised appellant that she could take the vacation, but it would be unpaid. Appellant then asked to be placed on unemployment. The employer refused.
Appellant began her vacation on June 17, 2006. Prior to the end of the vacation period, she advised her employer that she had to quit her job because she had to stay home with her son. Because the lack of adequate notice left the employer short-staffed, the employer asked appellant to work part-time as a lead cashier for $8.00 per hour. Appellant agreed. She worked one day a week thereafter. The employer then eliminated appellant's manager position, as it was no longer needed.
At the end of the summer 2006, appellant decided that she wanted to return to full-time work. The employer agreed, but advised appellant that the only full-time position available was the lead cashier position. Appellant accepted that position. However, she eventually became upset that she was not in a manager's position. As a result, on September 15, 2006, she submitted a letter, explaining that she was resigning "because the punishment that I'm having is hurting too much." The "punishment" to which she referred was the change they had made because I was employed as a manager and making money as a manager but I have some responsibility the same I did before and other cashiers [were] working with me... and I still like to work and hire two people and make less money. I did not have power to set everything I had before as a manager.
Appellant applied for unemployment benefits on September 30, 2006. She received unemployment benefits in the amount of $5616 for the weeks ending September 30, 2006 through March 24, 2007. Sometime in May 2007, appellant returned to full-time work at Any Garments Cleaners as a lead cashier earning $8.00 an hour.
On May 31, 2007, the deputy to the Director disqualified appellant for benefits, finding that she left work voluntarily without good cause attributable to the work. The Director notified appellant that she must refund the unemployment benefits paid to her. Appellant appealed, contending that she left her job because of the substantial change in the terms and conditions of her employment. The Appeal Tribunal initially reversed the deputy and the Director. However, after the employer's appeal, the Board remanded to the Appeal Tribunal for a hearing and decision on all issues.
On October 19, 2007, the Appeal Tribunal affirmed the deputy and the Director, concluding that:
The claimant has returned to work under the same conditions that she claims to have left for, it is not credible that the conditions were so bad as to leave her no choice but to leave employment in the first place.
The Board affirmed. This appeal followed. On appeal, appellant contends that she had good cause to leave her job because her employer offered her unsuitable new work with hours, compensation and duties substantially less favorable from those she agreed to perform. Thus, pursuant to N.J.S.A. 43:21-5(c), she is not disqualified from receiving unemployment benefits.
Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Public Serv. Elec. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103, (1985)). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'"
Ibid. (quoting Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App. Div.1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Board of Review, 91 N.J. 453, 459 (1982); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981)). 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)). Unless the agency's action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210. Applying these standards, we affirm.
An employee shall be disqualified for benefits:
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, 52 (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; N.J.A.C. 12:17-9.1(c). "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, supra, 192 N.J. Super. at 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, Dep't of Labor & Indus., 158 N.J. Super. 172, 174 (App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave employment."
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.'" Zielinski, supra, 192 N.J. Super. at 288 (quoting Medwick v. Review Bd., 69 N.J. Super. 338, 345 (App. Div. 1961)). "'The decision to leave employment must be compelled by real, substantial and reasonable circumstances... attributable to the work.'" Shuster v. Board of Review, Dept. of Labor, 396 N.J. Super. 240, 244-245 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606, (App. Div. 1997)). See also In re N.J.A.C. 12:17-9.6 ex. rel. State Dept. of Labor, 395 N.J. Super. 394, 400 (App. Div. 2007). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175).
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 resigned in June 2006. She agreed to continue working part-time in a different position and at a reduced salary. The record does not indicate an agreement that the part-time work was temporary, or that the employer promised to return appellant to the full-time manager position. Further, appellant's return to her part-time position belies her unsuitability claim.