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Bogart v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 28, 2009

DOROTHY M. BOGART, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND ACME MARKETS, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 186,038.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 25, 2009

Before Judges Miniman and Simonelli.

Appellant Dorothy M. Bogart (Bogart) appeals from the decision of the Board of Review affirming the decision of the Appeal Tribunal that she was indefinitely disqualified for unemployment compensation benefits because she left work voluntarily without good cause attributable to such work. We affirm.

The following facts are summarized from the record. Bogart, a Delaware resident, previously worked as a full-time pharmacy technician with Kurland Pharmacy, located in New Jersey. Respondent Acme Markets, Inc. (Acme) purchased Kurland Pharmacy. On April 9, 2007, Bogart began her employment with Acme as a part-time pharmacy technician.

After beginning her employment with Acme, Bogart received initial computer training; however despite such training, Bogart was unable to understand the computer system. Bogart did not request further computer training, and she was unwilling to attend a computer training class beginning on March 27, 2008.

Bogart resigned on April 12, 2008. At the time of her resignation, she was not in danger of termination, continuing work as a part-time pharmacy technician was available for her, and she did not apply for any other positions that were available at the same salary.

Bogart applied for unemployment benefits on April 13, 2008. A deputy claims examiner found her ineligible for benefits, finding that she left work voluntarily without good cause attributable to the work.

Bogart appealed to the Appeal Tribunal, contending that she was unable to perform her pharmacy technician duties because she did not understand the computer system. However, testimony at the hearing before the deputy claims examiner indicated that Bogart preferred not to travel to New Jersey for a part-time job, and that she desired to work closer to her home in Delaware. Acme had no pharmacy technician positions available in a store closer to Bogart's home.

The Appeal Tribunal affirmed, concluding that although Bogart claimed that she left her employment due to her inability to grasp the skills required to use the computer, her employer did not discharge her or inform her that she might be discharged for lack of computer skills. The Appeals Tribunal also concluded that Bogart's "leaving of work because she wanted to transfer to a location nearer her home is a personal one."

The Board affirmed. This appeal followed. On appeal, Bogart contends for the first time that she left her employment in order to obtain a better position, and that she expected to work full-time and was only provided part-time employment.

We will not consider questions or issues not properly presented below when an opportunity for such a presentation is available unless the questions so raised on appeal relate to jurisdiction or concern matters of great public interest.

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also State v. Arthur, 184 N.J. 307, 327 (2005). We also will not consider claims raised outside the record. R. 2:5-4. Because Bogart's newly-raised contentions do not relate to jurisdiction or concern matters of great public interest, and are outside the record, we decline to address them.

Bogart also contends that she left her employment because she was unable to perform her job duties due to Acme's failure to provide appropriate computer training. The Board found this reason personal and insufficient to justify voluntarily leaving employment. We agree.

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, 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; 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 v. Bd. of Review, 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)). 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, supra, 91 N.J. at 457. 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.'" Domenico, 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. Bd. of Review, 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 Bogart 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. Bogart was not in danger of termination due to her inability to comprehend her employer's computer system. Further, she refused to engage in the additional computer training offered to her, and alternative positions were available to her, which would have permitted her to remain employed. Instead, she voluntarily resigned from her employment without good cause attributable to the work.

Affirmed.

20090828

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