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Tomanelli v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 20, 2009

DIANA M. TOMANELLI, APPELLANT,
v.
BOARD OF REVIEW, BERNARD P. BACCHETTA AND GOLD, ALBANESE & BARLETTI, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 179,052. Diana M. Tomanelli, appellant pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 11, 2009

Before Judges Lihotz and Baxter.

Appellant Diana M. Tomanelli 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). Our examination of the record, in light of our standard of review, satisfies us the Board's final decision was properly premised upon facts in the record and consonant with relevant statutory provisions. Accordingly, we affirm.

Appellant was employed as a legal secretary by Bernard P. Bacchetta, Esq. from April 3, 2006 until January 25, 2008. On January 15, appellant spoke to Bacchetta. She explained she was offered another secretarial position with the law firm of Gold, Albanese & Barletti (the Gold firm) and suggested she would receive an increased salary. Bacchetta responded: "Fine, take it." He stated, "he had had a bad year" and was not in a position to increase her salary. The parties agreed appellant would continue working until January 25, 2008. Appellant left her job and started employment with the Gold firm. She was terminated from that position after one week.

Appellant filed a claim for unemployment benefits, which was denied by a deputy claims examiner. The tribunal rejected as not credible appellant's contention she was forced to terminate her employment because of the danger of imminent layoff and concluded the reasons for separation were personal. The Board adopted the tribunal's findings, including its credibility determinations. This appeal ensued.

Any examination of the basis for an employee's departure is fact-sensitive. As a result, when the agency's findings of fact are challenged on appeal, 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, 390-91 (1983). In our limited review, we will not disturb an agency's decision unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964). Further, we defer to credibility determinations made by the factfinder. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

An employee who leaves a job voluntarily is statutorily disqualified from receiving unemployment benefits, N.J.S.A. 43:21-5(a), and has the burden of proving he or she did so with good cause attributable to the work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). "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). For example, "a notice of quitting separates the employee from the job and is a voluntary leaving." Nicholas v. Bd. of Review, 171 N.J. Super. 36, 38 (App. Div. 1979).

On appeal, appellant argues she was forced to leave her employment with Bacchetta to take a better position. Citing our comment in Rider College v. Bd. of Review, 167 N.J. Super. 42, 47 (App. Div. 1979), that "there may be situations where a voluntary quit to take a better position because of factors related to the work would constitute good cause," she suggests her acceptance of employment with the Gold firm resulted because it offered overtime pay and more expansive health benefits, both of which Bacchetta could not provide. Appellant admits her base rate of pay at the Gold firm was two dollars per hour lower than the position she left.

Like the claimant in Rider College, appellant's reasons for leaving her employment were personal and not attributable to the work. Ibid. The two jobs were similar in responsibility and comparable in pay. She had the opportunity to work overtime with the Gold firm but had received a higher base pay with Bacchetta. The record does not state the nature of the other benefits purportedly offered by the Gold firm. Finally, appellant failed to show her work conditions with Bacchetta were "intolerable" necessitating the need to obtain a better position. Ibid.

We have concluded that frustration in not receiving a pay raise, DeSantis v. Bd. of Review, 149 N.J. Super. 35, 38 (App. Div. 1977) or the "'[m]ere dissatisfaction with working conditions which are not shown to be abnormal or affect health, do[ ] not constitute good cause for leaving work voluntarily.'" Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964) (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). Giving due regard to the appeals examiner, who had the opportunity to assess the credibility of appellant and her employer, we are satisfied with the Board's finding that appellant failed to prove she left work due to conditions related to her employment or because of a constructive termination. Accordingly, we respect the Board's expertise and defer to its considered determination. Karins v. City of Atl. City, 152 N.J. 532, 540-41 (1998).

Affirmed.

20090820

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