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Smith v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 22, 2010

MELANIE G. SMITH, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND ROSS DRESS FOR LESS, INC., RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 210,744.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2010

Before Judges Messano and Waugh.

Petitioner Melanie G. Smith appeals from the administrative action of the Board of Review denying her application for unemployment insurance benefits. We affirm.

Smith was employed as a manager at a dress store from February 23, 2004, through October 27, 2008. She was given verbal and written warnings to improve her performance at various times during her employment. On October 1, 2008, she received a performance review plan. Because she concluded that she would not meet the requirements of the plan to the satisfaction of her supervisor and anticipated that she would be terminated at the end of the thirty-day period mentioned in the plan, she chose to resign rather than be fired. She submitted her resignation on October 6, 2008, giving three-weeks notice.

Smith filed a claim for unemployment compensation on October 26, 2008. The deputy claims examiner concluded that she was not qualified for benefits because she left work voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). Smith appealed that decision to the Appeal Tribunal, which held a telephonic hearing on March 11, 2009. The Appeal Tribunal denied the appeal on April 2, 2009, concluding that "[t]he claimant's rationale that she would be terminated is mere speculation and cannot be weighed as fact . . . . The claimant left work voluntarily without good cause attributable to such work."

Smith appealed to the Board of Review, which affirmed the decision, but changed the disqualification date to October 26, 2008. The Board acknowledged that Smith had submitted a note from her doctor to the effect that she suffered from irritable bowel syndrome, but observed that the doctor did not relate the medical condition to her employment. The Board explained its decision as follows:

In Spatola v. Board of Review, 72 N.J. Super. 483 (App. Div. 1962), the court held an individual who left his job after being told that he had 30 days to improve his quality and quantity of work and terminated his employment immediately left without good cause attributable to such work. Similarly, the claimant did not have good cause attributable to such work for leaving in the midst of a disciplinary procedure.

This appeal followed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if the agency's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). Although the Act is remedial in nature, it is the claimant who bears the burden of proving entitlement to benefits. Brady, supra, 152 N.J. at 218. And, "[t]he basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J. at 374.

N.J.S.A. 43:21-5(a) provides:

An individual shall be disqualified for benefits:

(a) 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 . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

The issue presented on this appeal is whether the agency determination that Smith left work without good cause attributable to her work was arbitrary, capricious, or unreasonable.

An employee's fear of being discharged, where the employer has not indicated that such a discharge is imminent, does not furnish the employee with cause to resign and collect benefits under the Act. Spatola v. Bd. of Review, 72 N.J. Super. 483, 485 (App. Div. 1962). That principle aptly recognizes that the conditions that lead to an employee's gloomy perceptions of job insecurity can improve, so that "his [or her] fears of being discharged might never have materialized." Ibid. Therefore, "good cause" for resignation requires that "the surrounding circumstances . . . demonstrate a lack of suitable continuing work[,] either concurrently or at a discernible and proximate point in time, together with statements or actions of the employer showing a very strong likelihood of imminent layoff." Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997).

Although we accept that Smith was worried about being discharged based upon her prior history and discussions with her supervisors at the time she received the most recent performance review plan, we cannot conclude that the agency's decision that her discharge was not imminent is unsupported by the factual record or that it was arbitrary, capricious, or unreasonable.

We cannot substitute our judgment for that of the Board. In addition, Smith did not attribute her decision to resign to health problems until the Board of Review appeal and, in any event, did not provide sufficient medical evidence that it caused her resignation.

Affirmed.

20101022

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