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Arlene Lou Velez v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 12, 2011

ARLENE LOU VELEZ, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR,
AND SIEMENS BUILDING TECHNOLOGIES, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 222,008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2010

Before Judges Cuff and Sapp-Peterson.

Arlene L. Velez (Velez) appeals from the September 30, 2009 decision by the Board of Review (Board) finding that she was disqualified for unemployment benefits under N.J.S.A. 43:21- 5(a), as she did not leave work voluntarily with good cause attributable to the work. We affirm.

Velez worked as a field support specialist for Siemens Building Technologies, Inc. (Siemens) from April 28, 2008, through January 23, 2009. On February 1, Velez filed a claim for unemployment benefits. Her claim was denied on March 2. She timely appealed the denial, and she and Siemens participated in a telephonic hearing on June 24.

Velez testified that she left work on the afternoon of January 22, because of harassing comments made to her by a co-worker while she was on the phone with clients. She claimed that the co-worker's harassment caused her to lose five calls that day. She indicated the co-worker had been harassing her for months and she could no longer tolerate his behavior. Her supervisor, Thomas Fitzpatrick, testified that he received a voice mail from Velez on January 23 indicating that she had secured other employment. In the voice mail, she never stated that she was leaving because she was upset with her co-worker's behavior. He also testified that on January 22, the last day that Velez worked, he met with her after she reportedly made inappropriate remarks to her co-worker. During this meeting, Velez at no time reported that her co-worker had been harassing her. The Appeal Tribunal found that Velez left employment voluntarily because she had obtained other employment and found there was no evidence that she was forced to leave due to working conditions. On appeal before the Board, the Appeal Tribunal's determination was upheld, although the Board modified the disqualification date. The ensuing appeal followed.

On appeal, Velez claims:

CLAIMANT LEFT HER JOB WITH EMPLOYER IN ORDER TO TAKE A BETTER POSITION BECAUSE OF FACTORS i.e., VERBAL AND SEXUAL HAR[]ASSMENT, RELATED TO THE JOB CONSTITUTES GOOD CAUSE TO THE JOB AND, THEREFORE, SHE SHOULD NOT HAVE BEEN DISQUALIFIED FOR BENEFITS.

A claimant seeking unemployment compensation benefits bears the burden of establishing entitlement to an award of benefits. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964). "[A] claimant shall be disqualified from receiving unemployment compensation 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 . . . .'" Brady v. Bd. of Review, 152 N.J. 197, 213 (1997) (quoting N.J.S.A. 43:21-5(a) (alteration in original)). In applying N.J.S.A. 43:21-5(a), a court must distinguish between a voluntary quit with good cause attributable to the work and, on the other hand, a voluntary quit without good cause attributable to the work. Id. at 213-14. "Good cause" is "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); see also Zielenski, supra, 85 N.J. Super. at 52 (explaining good cause is "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." (quoting DiMicele v. Gen. Motors Corp., 51 N.J. Super. 167, 171 (App. Div. 1958) (internal quotation marks omitted), aff'd, 29 N.J. 427 (1959))). In Domenico v. Board of Review, we set forth the factors to be considered in determining the existence of good cause in a given matter:

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. [192 N.J. Super. 284, 288 (App. Div. 1983) (citations and internal quotation marks omitted).]

Velez claims that she was forced to leave work due to harassing conduct. The Appeal Tribunal, after conducting a hearing, found that Velez "resigned by voice mail to her supervisor on 1/23/2009 and stated that she had another job. The claimant did not indicate she was leaving due to the behavior of her co[-]worker." Velez did not dispute that she left the voice mail on January 23, explaining that she had another job. Nor did Velez dispute that she did not indicate in the voice mail that she was leaving due to her co-worker's harassing conduct.

Our role in reviewing the decision of an administrative agency is limited. We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable, that it lacked fair support in the evidence, or that it violated legislative policies. In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210-11. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions by administrative agencies carry with them a strong presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't. Envtl. Prot., 82 N.J. 530, 539-40, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

In the present case, the record fully supports the Board's decision. Velez at no time reported the harassing conduct of her co-worker. Rather, she told her supervisor in a voice mail that she was leaving because she had secured other employment. Consequently, her claim that she had good cause to leave her employment because of her working conditions is without merit.

Affirmed.

20110112

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