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Conti v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 26, 2010

ROSANNA M. CONTI, APPELLANT,
v.
BOARD OF REVIEW, AND MERCER COUNCIL OF DRUG AND ALCOHOL, RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 177,313.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 23, 2010

Before Judges Chambers and Kestin.

Petitioner, Rosanna M. Conti, appeals from the decision of the Board of Review mailed August 20, 2009, denying her application for unemployment compensation benefits. We affirm.

Conti was employed by the Mercer Council on Alcoholism and Drug Addiction from September 2007, to January 11, 2008, as a part-time student assistant counselor, working with children with behavioral problems. On or about December 21, 2007, she requested a transfer to another position. This request was denied because transfers were not permitted for people employed for less than a year. Conti admitted that, upon learning this, she told her supervisor that she would be quitting. She thereafter changed her mind, but by that time a replacement had been hired to fill her position. As a result, she submitted a letter of resignation.

Conti maintains that she wanted to leave the position because she was given ineffective supervision and that she felt unsafe. She recounted incidents where one student touched her shoulder, one student took a slinky and squeeze ball from her desk, and another student threw a cake toward her. She also was concerned and believed that some students were involved in gangs.

Her application for unemployment benefits was denied by the Deputy of the Division of Unemployment and Disability Insurance. After conducting a telephonic hearing, the Appeal Tribunal affirmed the decision of the Deputy. The Appeal Tribunal's decision was in turn affirmed by the Board of Review. Conti appealed to this court. She complained about the hearing officer and noted that the hearing officer had spoken to the wrong employer. Thereafter, we granted the Board's motion for a temporary remand.

A new hearing was held before the Appeal Tribunal in front of a different hearing officer. Conti and her employer's executive director testified. Noting inconsistencies between Conti's testimony and contemporaneous statements and her letter of resignation, the Appeal Tribunal, in a decision mailed May 28, 2009, found that her contentions lacked credibility. It determined that she was disqualified from receiving unemployment benefits because she had left work voluntarily "without good cause attributable to such work." The Board of Review affirmed in a decision dated August 20, 2009. Conti appeals to this court, raising the following points:

POINT I

THE BOARD OF REVIEW INCORRECTLY DETERMINED THAT ROSANNA M. CONTI WAS DISQUALIFIED FROM UNEMPLOYMENT BENEFITS PURSUANT TO N.J.S.A. 43:21-5(A) BECAUSE SHE WAS FORCED OUT OF HER POSITION AND LEFT EMPLOYMENT WITH GOOD CAUSE ATTRIBUTABLE TO THE WORK.

POINT II

THE BOARD OF REVIEW AND ATTORNEY GENERAL'S OFFICE MINIMIZED THE SERIOUSNESS OF THE SITUATION.

A person is disqualified from receiving unemployment benefits if she "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). "[G]ood cause attributable to such work" is defined as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). When evaluating the employee's reason for leaving employment, "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.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citation omitted) (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). An employee is expected "to do what is necessary and reasonable in order to remain employed." Ibid. An employee is not entitled to unemployment benefits because she finds the nature of the work she undertook to be unpleasant and, therefore, quits.

In our review, we may not overturn an agency's decision unless it is "arbitrary, capricious, or unreasonable." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). If the Board of Review's "factual findings are supported 'by sufficient credible evidence,'" the court must accept them. Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We "defer to an agency's expertise and superior knowledge of a particular field." Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

After a detailed review of the record, the arguments of the parties and the relevant law in light of our standard of review, we conclude that the record contains substantial credible evidence supporting the Board of Review's conclusion that Conti left her job "voluntarily without good cause attributable to such work," N.J.S.A. 43:21-5(a), and was not qualified to receive unemployment benefits.

Affirmed.

20100726

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