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Khimchenko v. Board of Review


March 5, 2010


On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 209,430.

Per curiam.


Argued February 22, 2010

Before Judges Baxter and Alvarez.

Vladimir Khimchenko appeals from a March 30, 2009 decision of the Board of Review (Board) that affirmed the Appeal Tribunal's conclusion that Khimchenko was disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to his employment. We reject Khimchenko's claims that: 1) his resignation was not voluntary because his employer forced him to sign a letter of resignation knowing that he was not able to understand the contents of the document; 2) he was terminated in retaliation for exercising his right to take a medical leave; and 3) even if he did resign his employment, he was forced to do so because the working conditions exacerbated his medical problems and his employer refused to provide a suitable accommodation. We affirm.


Khimchenko began his employment at Superior Office Systems, Inc. on February 23, 1998, and for the next ten years worked uneventfully as a technician repairing tabletop copying machines. However, in the fall of 2008, due to a decline in customer requests for repair of such machines, a supervisor reassigned Khimchenko to work in the warehouse, where he was responsible for assembling larger copying machines and repairing used machines for resale. Shortly after he began work in the warehouse, Khimchenko notified David Wallach,*fn1 the owner of the company, that the heavy lifting and bending involved in setting up newer and larger machines was causing him problems with his arthritis and high blood pressure. He also complained that the warehouse was too cold in the winter and too hot in the summer.

Wallach responded to Khimchenko's complaints about the temperature by permitting Khimchenko to work in an office that was located within the warehouse, which gave Khimchenko the ability to increase or decrease the temperature as needed. To resolve Khimchenko's problems with lifting heavy machines, Wallach planned to install a ramp, although that change had not yet been implemented by the time Khimchenko's employment ended.

Because Khimchenko's "production activity" unjustifiably "slowed down," Wallach reduced Khimchenko's hourly pay on September 30, 2008 from $26 per hour to $24 per hour. A week later, Khimchenko presented Wallach with letters from his physicians recommending that Khimchenko be placed on medical leave from October 6 to October 20, 2008 because of his high blood pressure.

According to the testimony of Wallach and Khimchenko's immediate supervisor, Michael Mazur, Khimchenko resigned on November 6, 2008. Khimchenko, who was very upset, approached Mazur and stated "I quit" and that he could not "take it anymore." Because Mazur and Khimchenko had always enjoyed a good relationship, Mazur tried to dissuade Khimchenko from resigning, but was unable to do so. Mazur testified that he left Khimchenko to find Wallach and notify him that Khimchenko had resigned, but by the time Mazur returned, Khimchenko had left the building and gone home. In accordance with company policy, which required employees to sign a letter of resignation after they resign, Wallach presented a letter of resignation to Khimchenko on November 7, 2008, which Khimchenko signed. According to Wallach, he afforded Khimchenko the opportunity to read the one-line letter to his son before Khimchenko signed it,*fn2 and Khimchenko had done so.

Khimchenko's account of the circumstances surrounding his signing of the letter of resignation were considerably different.*fn3 According to Khimchenko, he never told Mazur that he was quitting. Instead, according to Khimchenko, on November 6, 2008, because he was "hysterical" and "shaking" and wanted to leave for the day, he said to Mazur, "I cannot work in this state that I have," and then left the building.

The next day, Wallach approached him with papers to sign and Wallach refused Khimchenko's request for a dictionary to translate some of the terms. According to Khimchenko, Wallach became "angry, and started to raise his voice." Khimchenko also asserted that Wallach assured him that "there's nothing bad in this letter and it's all good and that I need to sign it." He also maintained that his "spoken English is not as advanced as [his] technical language," and there were occasions when he had needed to use a dictionary to translate spoken English.

Wallach vehemently disagreed with Khimchenko's claimed language difficulties, asserting that Khimchenko had always spoken English to other employees and customers, and had been able to read and understand the repair manuals written in English. Wallach explained that at Khimchenko's request, he had afforded him the opportunity to telephone his son to discuss the content of the resignation letter before signing it. When the Appeals Examiner asked Khimchenko whether he had spoken to his son before signing the letter, he answered "yes."

After hearing the testimony on January 26, 2009, the Appeals Examiner issued a written opinion denying Khimchenko's claim for unemployment compensation benefits. The Appeals Examiner found that Khimchenko "knew that the letter was for resignation and signed it." The Appeals Examiner concluded that Khimchenko voluntarily resigned, "because he did not want to perform his job despite accommodations." He therefore found that Khimchenko was dissatisfied with his working conditions, but the working conditions were not abnormal and did not affect his health. Therefore, Khimchenko had left work voluntarily without good cause attributable to such work, and was therefore disqualified for unemployment compensation benefits in accordance with N.J.S.A. 43:21-5(a). On March 30, 2009, the Board affirmed the decision rendered by the Appeal Tribunal.


We review Khimchenko's contentions in accordance with our standard of review. The Board's determination that Khimchenko was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

An appellate court "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of County of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S.Ct. 1043, 140 L.Ed. 2d 108 (1998). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, then we must uphold them. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).

Moreover, because we, unlike the Appeal Tribunal, have no opportunity to hear the witnesses and evaluate their demeanor, we are not in a position to evaluate the witnesses' credibility and determine whose testimony is worthy of belief. For that reason, we are obliged to "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "We read the record, not to balance the persuasiveness of the evidence on one side as against the other, but in order to determine whether a reasonable mind might accept the evidence as adequate to support the conclusion." Renan Realty Corp. v. N.J. Dep't of Cmty. Affairs, 182 N.J. Super. 415, 421 (App. Div. 1981). Where such determination "is reasonably made, it is conclusive on appeal." Ibid.

A section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provides that a claimant is disqualified for benefits:

[f]or 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 for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . . [N.J.S.A. 43:21-5(a) (emphasis added).]

While the statute does not define "good cause," the statute has been construed to require more than mere dissatisfaction with working conditions:

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Mere 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. The 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. [Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotations and citations omitted).]

Here, the Appeal Tribunal and the Board were required to choose between Wallach's claim -- that Khimchenko voluntarily resigned because he was dissatisfied with the working conditions and fully understood the resignation letter that was presented to him on November 7, 2008 -- and Khimchenko's assertion that he was forced by Wallach's angry tone to sign the letter of resignation, that he did not understand its contents of the letter when he signed it and that he would never have voluntarily left his employment because of the difficulties of finding a new job. We have been presented with no meritorious basis upon which to disturb the credibility determination the Appeal Tribunal made in the employer's favor.

So viewed, we conclude that the record here contains sufficient credible evidence to support the Board's determination that Khimchenko resigned and was not, as he claimed, terminated against his will. Moreover, the record supports the Board's determination that the employer accommodated Khimchenko's medical limitations and that the job he was performing at the time he signed the letter of resignation was an "easier job than [he was performing] before." Consequently, we are satisfied, as was the Board, that Khimchenko is disqualified for unemployment compensation benefits, pursuant to N.J.S.A. 43:21-5(a), because he left work voluntarily without good cause attributable to his employment.


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