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PATRICIA JACKSON v. BOARD OF REVIEW


November 29, 2010

PATRICIA JACKSON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, AND BIG M, INC., AND COMPASS HE SERVICES, LLC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 212,927.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010 - Decided Before Judges Fuentes and Gilroy.

Claimant Patricia Jackson appeals from a final determination of the Board of Review (the Board) finding her ineligible for unemployment compensation benefits.*fn1 We affirm.

Claimant was employed by respondent Big M, Inc., as a store greeter at its Watchung store from April 2006 through October 17, 2008. Claimant generally worked twenty-five to thirty-three hours per week, from 9:00 a.m. to 4:00 or 5:00 p.m. Although in the fall of 2008 Big M reduced the hours of plaintiff's employment to approximately thirty hours per week, Big M offered claimant additional hours if she could work on Friday, Saturday or Sunday. Claimant chose to look for other employment.

On October 20, 2008, claimant began work for respondent Compass HE Services, LLC (Compass) that provided dining services to schools. On October 25, 2009, claimant resigned from her position at Big M advising her supervisor that she had found other employment. On October 31, 2008, claimant resigned from Compass because she did not agree with its policy not to provide school children with extra food, and because she had not received all of her anticipated pay, even though she had worked less than two weeks.

On November 9, 2008, claimant filed a petition for unemployment compensation benefits. On December 18, 2008, a Deputy Claims Examiner found claimant ineligible for benefits, determining that claimant had left employment voluntarily without good cause attributable to the work pursuant to N.J.S.A. 43:21-5(a). On December 18, 2008, the Deputy sent claimant a second notice of determination disqualifying her for benefits for the four-week period beginning October 26, 2008, through November 22, 2008, finding claimant had failed to accept suitable work without good cause, pursuant to N.J.S.A. 43:21-5(c).

On December 18, 2008, appellant appealed the two determinations to the Appeal Tribunal. On February 23, 2009, the Appeal Tribunal conducted a hearing on the appeal. On the same day, the Appeal Tribunal affirmed the Deputy's determinations, concluding that claimant was disqualified for unemployment benefits: 1) as of October 12, 2008, pursuant to N.J.S.A. 43:21-5(a), finding claimant left employment voluntarily without good cause attributable to the work; and 2) as of October 26, 2008, through November 22, 2008, pursuant to N.J.S.A. 43:21-5(c), finding claimant failed without good cause to accept or apply for suitable work.

On March 6, 2009, claimant appealed to the Board. On April 24, 2009, the Board affirmed the decision of the Appeal Tribunal. In so doing, the Board also determined that "claimant's subsequent weeks of employment and wages with [Compass] are insufficient to toll the disqualification imposed for voluntarily leaving employment [with Big M] and that disqualification is still in effect." On June 12, 2009, the Board denied claimant's application for reconsideration.

On appeal, claimant argues that the Board erred in affirming the Tribunal's decision to disqualify her for unemployment benefits. Claimant asserts that she left employment with Big M for good cause because the employer "was cutting back her hours which would not allow her enough funding to get back and forth the required distance to work."

Appellate courts have a limited role in reviewing decisions of an administrative agency. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); In re Herrmann, 192 N.J. 19, 27 (2007). There should not be an independent assessment of the evidence by the appellate court. In re Taylor, 158 N.J. 644, 656 (1999). The appellate court must accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed sub nom. Smith v. Brandt, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982). Thus, the determinations of the administrative agencies are given great deference. Circus Liquors, supra, at 199 N.J. at 9-10. We cannot overturn an agency's decision that is based on sufficient credible evidence, even if this court would have reached a different result. Ibid.; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). Simply put, unless the court determines that the agency's decision was arbitrary, capricious or unreasonable, we should affirm. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

We have reviewed the record in its entirety and conclude that claimant's argument is without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Nevertheless, we add the following comment.

The primary issue on appeal is whether claimant left employment with Big M "without good cause attributable to the work." N.J.S.A. 43:21-5(a). We conclude that claimant failed to meet her burden of proof. Brady, supra, 152 N.J. at 218.

Claimant worked at Big M's without a fixed work schedule, working approximately twenty-five to thirty-three hours per week. Upon Big M reducing her work hours to thirty hours per week, claimant sought to work thirty-eight hours per week. Claimant's supervisor offered her the opportunity to work the additional hours if she could work Fridays and weekends.

Claimant, however, refused, testifying that she was only hired to work Monday through Thursday. Resigning employment, because of dissatisfaction with one's work hours and days of employment when the employee otherwise has worked for the employer, does not constitute leaving employment with good cause attributable to the work. Zielenski v. Bd. of Review, 85 N.J. Super. 49, 51-52 (App. Div. 1964).

Affirmed.


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