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Rooth v. Board of Review


February 25, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 199,343.

Per curiam.


Submitted January 25, 2010

Before Judges Lisa and Baxter.

Appellant, Jennie Anne Rooth, appeals from the December 23, 2008 final decision of the Board of Review (Board), which affirmed the November 5, 2008 determination by the Appeal Tribunal that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. Appellant argues that the record does not support the finding that she voluntarily left work. She contends she was terminated against her will. As part of her argument, she alleges discriminatory disparate treatment. We reject appellant's arguments and affirm.

Appellant was employed by the New Jersey State Office of Attorney Ethics (OAE) as a disciplinary auditor financial specialist. This was a fulltime position. On June 20, 2008, appellant submitted a letter of resignation, which stated in its entirety: "It is with great sadness that I tender my resignation effective the close of business Friday, July 4, 2008." Although not expressed in her letter, appellant acknowledges that her reason for resigning was her intention to relocate to Florida. She had entered into a contract to purchase a residence there and had applied for a mortgage.

On June 24, 2008, appellant submitted another letter to the OAE, which stated in its entirety: "I am rescinding my resignation that was effective the close of business Friday, July 4, 2008." According to appellant, her reason for seeking to rescind her resignation was that, in light of her new status as being unemployed (or about to be unemployed), her mortgage application in Florida was in jeopardy.

Appellant met with her supervisors at the OAE. They declined to approve appellant's attempted rescission of her resignation. It was their position that as soon as appellant would be able to finalize her mortgage arrangements, she was going to leave and move to Florida. Therefore, they did not want to retain her on an indeterminate basis, but wanted to fill her position with a permanent employee.

As a negotiated accommodation, in order to provide appellant some financial remuneration during her transition, the supervisors agreed to allow her to work two more weeks until July 18, 2008, conditioned upon her submitting an "irrevocable" resignation letter effective that date. Appellant accepted the opportunity and on July 1, 2008 submitted a letter to the OAE which stated in its entirety: "As directed, my revised and 'irrevocable' resignation date will be the close of business Friday, July 18, 2008."

Appellant worked until July 18, 2008. She then applied for unemployment benefits, which were denied because she left work voluntarily without good cause attributable to the work. Appellant filed an administrative appeal. In her submission in support of the appeal, she acknowledged that after her last day of work on July 18, 2008 she did relocate to Florida. She apparently moved there very shortly after July 18, 2008. In that submission, appellant argued that she did not leave the OAE willingly on July 18, 2008, but was "effectively fired since [she] was denied the ability to retain [her] position." In support of her argument that she was wrongfully denied consent to rescind her resignation, she alleged that the OAE had a series of discrimination lawsuits pending and that the OAE had consistently reinstated male employees to the work force after they had resigned, naming five such individuals.

The Appeal Tribunal conducted an evidentiary hearing on October 23, 2008. Appellant testified, as did William Ruskowski, Chief of Investigations at the OAE. Appellant recounted the events and acknowledged that when she submitted her original resignation letter she was under no threat of termination. She did so voluntarily for the purpose of relocating to Florida. She contended, however, that when the success of her mortgage application appeared in doubt, she decided not to relocate to Florida and intended to stay in this area indefinitely. According to her, she explained this to her supervisors.

Ruskowski confirmed that appellant was under no threat of termination when she submitted her original resignation letter.

He insisted that appellant sought reinstatement on an indeterminate basis, only until she got her mortgage straightened out, at which time she would relocate to Florida. This was not acceptable to the OAE, which declined to accept appellant's attempted rescission of her resignation.

With respect to appellant's claim of discriminatory disparate treatment, she said that since she left, sometime in September 2008, one of her co-workers was in the same situation as she, namely he had resigned, and then changed his mind. Appellant said the OAE allowed this individual to be reinstated, notwithstanding that, according to appellant, "he had been looking to relocate." She provided no further details, nor did she provide any testimony about the allegations contained in her written submission in support of her administrative appeal about the other five men who we mentioned earlier.

The Appeals Examiner found against appellant. She found that appellant was under no threat of termination when she submitted her original resignation letter, that upon acceptance of that letter, appellant was separated from her employment in a manner that constituted a voluntary leaving, and the employer, after accepting an unequivocal resignation, was not obligated to accept an attempted rescission of the resignation. Accordingly, the Appeals Examiner rejected appellant's administrative appeal, affirmed the adverse determination rendered by the deputy, and found appellant disqualified from benefits. The Appeals Examiner did not specifically address the allegation of discriminatory disparate treatment.

Appellant sought further administrative review before the Board. In her written submission to the Board, appellant repeated her earlier arguments. She also repeated her allegations about disparate treatment. In its final decision of December 23, 2008, the Board, based upon its independent review of the entire record, agreed with the decision of the Appeal Tribunal and affirmed. This appeal followed.

The scope of our review of the decision of an administrative agency is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997).

It cannot be disputed that when appellant submitted her original letter of resignation on June 20, 2008, she did so voluntarily, under no threat of termination, and without equivocation. This was an unqualified resignation. It is also not disputed that appellant's purpose for resigning was a personal one, namely to relocate to Florida. Her resignation had nothing to do with her working conditions at the OAE. As such, based upon that letter, appellant left work without good cause attributable to the work and was disqualified from benefits. Roche v. Bd. of Review, 156 N.J. Super. 63, 65 (App. Div. 1978); N.J.S.A. 43:21-5(a); N.J.A.C. 12:17-9.1(e)6.

Pursuant to the New Jersey Administrative Code, an employee who has resigned may request rescission of the resignation prior to its effective date, which "may be consented to by the appointing authority." N.J.A.C. 4A:2-6.1(c) (emphasis added). The OAE provided meritorious reasons for declining to consent to appellant's reinstatement. The Appeals Examiner and Board apparently found credible the legitimate concerns of the OAE that appellant indeed intended to follow through with her plans to relocate to Florida as soon as she straightened out her mortgage arrangements. Indeed, she did so immediately after leaving her employment at the OAE. When an employee resigns and later attempts to rescind the resignation, the refusal by the employer to allow the rescission does not result in involuntary termination. Nicholas v. Bd. of Review, 171 N.J. Super. 36, 37-38 (App. Div. 1979). In those circumstances, the "notice of quitting separates the employee from the job and is a voluntary leaving." Id. at 38. Therefore, based solely upon the facts and circumstances involved in appellant's case, the OAE acted reasonably in declining to allow rescission of the resignation.

Appellant argues that her claim of discriminatory disparate treatment was not addressed in the administrative proceedings and that it provides a basis for the relief she seeks. However, the assertions contained in her written submissions to the Appeals Examiner and the Board constituted nothing more than bare allegations. They were unsupported by any competent evidence, and there was no elucidation of facts that would support appellant's contention that the circumstances in those cases were identical or materially similar to hers. At the evidentiary hearing, where appellant gave sworn testimony and had the opportunity to present other competent evidence, she made only a passing reference to the individual who allegedly resigned and was then reinstated in September 2008. That limited testimony was insufficient to establish the existence of any OAE policy by which resigning employees were routinely readmitted upon request, regardless of the circumstances, or that men were treated differently than women in such circumstances. The record simply does not support appellant's contention of discriminatory disparate treatment as a basis for her contention that she was wrongfully forced out by not being allowed to be reinstated after resigning.

Further, we agree with the Board's position that its jurisdiction is limited to matters arising solely under the Unemployment Compensation Law, and it is not a proper forum in which to litigate a claim of disparate treatment based upon a protected status such as gender. This position would not preclude a claimant from developing an appropriate record within the parameters of the Unemployment Compensation Law to establish a policy on the part of an employer and to demonstrate that the policy was arbitrarily disregarded with respect to the claimant, which might be evidential in assessing whether that employee left voluntarily or was in fact terminated. However, no such record has been developed here.



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