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Ana Y. Soler v. Board of Review and Castleford Tailors

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 7, 2011

ANA Y. SOLER, APPELLANT,
v.
BOARD OF REVIEW AND CASTLEFORD TAILORS, LTD., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 131,317.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2011

Before Judges Reisner and Ostrer.

Whether an employee has quit or been fired is sometimes difficult to discern. As in this case, the question must be decided by evaluating conflicting versions of emotionally charged, and at times, ambiguous interactions between a worker and her employer, in light of the totality of circumstances. After a hearing conducted over four days and involving multiple witnesses, the appeals examiner determined that the claimant, Ana Y. Soler, believed she had been terminated, but that her belief was both erroneous and unreasonable in light of the employer's actions. Consequently, the appeals examiner found that when Soler did not return to work, she "left work voluntarily without good cause attributable to [her] work," N.J.S.A. 43:21-5(a), was ineligible for unemployment compensation, and was required by N.J.S.A. 43:21-16(d) to refund amounts previously paid to her.

After the Labor Department's Board of Review (Board) affirmed the Appeal Tribunal's decision, Soler appealed. Given our deference to the agency's decision-making, we affirm.

I.

Soler worked for Castleford Tailors, Ltd. (Castleford) in Williamstown as a sewing machine operator between August 8, 2005 and September 5, 2006. She worked the 7:00 a.m. to 3:30 p.m. shift. Castleford did not hire part-time workers.

It was undisputed that she had some trouble with absences and tardiness, caused primarily by family responsibilities. She was the mother of a 17-year-old daughter and 15-year-old son. She had recently relocated to New Jersey from Puerto Rico. Her first language was Spanish. She had some difficulty conversing in English, but understood English better than she could speak it. Her daughter had health issues that had required hospitalization. Soler also had a chronic sore throat. Her employer warned her in April 2006 that her attendance needed to improve.

Soler arrived at Castleford late on September 6, 2006. It was her children's first day of school, and she had to obtain bus passes for them. After arriving, Soler spoke to her plant manager Jacqueline Luke and others, ultimately left the premises without performing any duties, and did not return to her work duties any day thereafter. What transpired between Soler and Luke on September 6, 2006 was contested.

Soler testified that she arrived at 9:30 a.m. on September 6, 2006, having previously told her immediate supervisor that she would be late to deal with issues related to her children's first day of school. She claimed that she worked five extra hours on preceding days to make up for the anticipated late arrival. She also claimed she left a message for the plant manager, Jacqueline Luke, alerting her as well that she would be arriving late.

When she arrived, Soler found that her time card was missing. Her supervisor directed her to speak to Luke. They spoke in English, and Soler testified that she understood what Luke was saying because it was basic English. Soler testified that when she asked Luke for her time card, so that she could start working, Luke told her to go home because she was no longer eligible to work for the company, and there was no work for her. Soler testified that she tried to discuss her family responsibilities, but Luke told her she had to work forty hours a week, Soler's family responsibilities were not Luke's concern, and Castleford did not offer part-time work.

Soler testified that she told Luke that she would do everything possible to complete forty hours a week, but that her family would come first; Luke insisted that Soler was not available to work forty hours a week. As Soler testified, the two "went back and forth," with Soler insisting she was available to work full-time, and Luke responding that she was not. Soler asserted that Luke was upset and told her to go home three or four times, although Soler admitted that Luke never used the words "terminated," "fired" or "laid off." Soler testified that she tried to speak to the company president,*fn1 and Luke told her that he was not present, and that Luke would call her for a meeting with him. Soler admitted that she asked Luke for a letter confirming that she was being terminated, but that Luke refused, telling Soler that she was not firing her or laying her off. Soler also admitted that a union representative was not present during the conversation in which Luke told her to go home. Soler testified that she knew that a union representative was supposed to be present when an employee was terminated. However, she also believed that persons were terminated notwithstanding that requirement.

After her first conversation with Luke, Soler testified that she then attempted to speak to her union representative who was employed at the facility, but Luke prevented her from doing so because it interrupted the representative's own work. At that point, according to Soler, Luke was upset and ordered Soler to clean out her locker and take her belongings. According to Soler, Luke escorted Soler to the plant exit. Even though Soler anticipated a meeting with the company president, she understood at that point that she was no longer employed by Castleford.

Two days later, on Friday, September 8, 2006, Soler testified that she returned to Castleford to pick up her pay check and to talk to Luke to explore the possibility of returning to work, but was rebuffed by Luke's secretary. Soler returned again on September 15, 2006 to pick up her last pay check, and again was unable to talk to Luke.

Soler said she tried to talk to her union representatives at the union's offices several times, but was unsuccessful. As she understood that she was being discharged, she claimed that she ultimately determined that the union would be uninvolved. She admitted that she never filed a grievance with the union to try to get her job back. She ultimately applied for unemployment benefits.

McGinn, who was Castleford's vice-president and general manager, testified that Soler had forty-three full-day or part-day absences during her thirteen months with Castleford. Based on a conversation with Luke soon after the incident, he understood that Soler arrived three hours and twenty minutes late on September 6, 2006. After Luke had placed another worker in Soler's position on the production line, there was no work for Soler that day. That is why she was told to go home.

He testified that Luke was not authorized to fire Soler or anyone else. McGinn exercised that authority in conjunction with union representatives. He also testified that he often spoke to Soler in English and they never had difficulty communicating. He conceded that there was no contemporaneous document in Soler's file describing what happened on September 6, 2006. But, Luke drafted a memorandum on February 15, 2007, after the unemployment compensation issue was contested.

McGinn testified that Soler was not on the brink of termination. She was a skilled operator, notwithstanding concerns about her attendance. In fourteen years, few unionized employees were terminated, and the termination process was an extensive one. McGinn agreed that Soler would not have been welcomed back unless she committed to work full-time. On the other hand, when she failed to return to work after September 6, 2006, he concluded that she had voluntarily resigned.

Soler's immediate supervisor, Ralph Calderone, testified that Soler had alerted him the week before Labor Day that she planned to be late September 6, 2006, and he advised her to file the necessary slip of paper. When Soler arrived late, he advised her to retrieve her time card and return to his section to work. However, he saw from afar that she engaged in a conversation with Luke, and did not return to her work station. Calderone testified that at one point, he saw Luke and Soler talking in the presence of the union representative.

Esther Giebel, a sewing machine operator and the union shop steward Calderone identified, testified that she did not have any discussions with Soler on September 6, 2006. Giebel disputed Soler's allegation that Luke prevented Soler from speaking to Giebel. She testified that after Soler left, Luke explained to her that she had sent Soler home for the day because of a lack of work. Giebel described Luke's demeanor as disturbed, but not irate. Giebel also explained that according to standard procedure, after someone was sent home, he or she was expected to call the next day to find out if work became available.

A few days later, Luke informed Giebel that Soler was deemed terminated after she failed to appear for work for three days in row without notice. Giebel confirmed that Luke lacked authority to fire Soler. McGinn was empowered to do that, but only in the presence of a union shop steward like Giebel. She estimated that Castleford terminated four or five employees in the nine years that she served as a shop steward. She also testified that she was unaware of any contacts by Soler with her business agent or other union representatives in an effort to keep her job, until Soler's lawyer reportedly contacted the union two months after the incident, when unemployment compensation benefits were contested.

Luke testified that Soler did not inform her in advance that she would arrive late on the morning of September 6, 2006. By 10:30 a.m., Luke assigned Soler's work to another person in order to keep the production line operating. When Soler arrived, Luke informed her of the substitution on the production line and told her that she needed to commit to working dependably forty hours a week. She explained how Soler's attendance affected other employees.

According to her testimony, Luke told Soler that she had to be able to work a full week. Soler allegedly replied that she could not do that, because her family came first, and Luke responded that that was Soler's decision. Luke testified that she refused to give Soler a document saying that she was being laid off, because Luke told Soler that she was not being laid off. Rather, based on Soler's response, Luke deemed her not available for work. Luke testified that she told Soler that she would get work when she was ready to work a full week.

Luke denied preventing Soler from talking to her shop steward. She also denied ordering Soler to clean out her locker. She also explained that she lacked authority to fire employees. She did testify that she interceded when Soler attempted to talk to several other female employees who were supposed to be working.

Luke agreed that she never spoke to Soler again after September 6, 2006, but claimed to be unaware of any effort by Soler to discuss her status when she returned to retrieve her paychecks. Luke testified that she would have met with Soler if she were aware that Soler wanted to talk. She also insisted that if Soler had appeared for work the day after the incident, she would have been willing to put her to work. However, after Soler was a "no show" for three days, she was deemed a voluntary quit under the union contract.

Lastly, Soler called a witness to confirm that Soler's English skills were limited.

II.

After Soler filed her claim for unemployment compensation, an extended series of hearings, appeals, and remands ensued, including one prior review by this court. In response to Soler's claim for unemployment benefits, the Division of Unemployment and Disability Insurance (Division) asked Castleford to provide the reason for Soler's separation.*fn2 On a form that McGinn signed on September 18, 2006, Castleford responded, "chronic absenteeism despite warnings - employee states 'family is more important than work[,]' employee is not available for full time work, 24 days over 20 occasions of unexcused absence."

On October 19, 2006, the Division notified Soler that she was eligible for unemployment benefits, finding that she was terminated:

You were terminated on 9/6/06 for excessive absenteeism. The last absences which resulted in your terminattion [sic] was for compelling reason and your employer was properly notified.

There is no evidence that your actions constitute a willful and deliberate disregard of behavior your employer had a right to expect. Therefore, your discharge was not for misconduct connected with the work.

Castleford appealed and the first hearing in the case was conducted December 1, 2006. Three days later, the Appeal Tribunal issued a decision determining that Soler was ineligible for benefits pursuant to N.J.S.A. 43:21-5(a). "The claimant's separation occurred when the claimant was unable to commit [to a full-time work schedule] due to the potential of family obligations. Her reason for leaving was personal and not attributable to the work itself." The Board affirmed the benefits denial on December 29, 2006. Meanwhile, on December 7, 2006, the Director of the Division requested a $2,380 refund from Soler, the amount previously disbursed to her as benefits for the weeks ending September 9, 2006 through November 25, 2006.

On appeal, this court reversed and remanded for a new hearing after finding that Soler did not receive adequate notice of the potential consequences of the December 1, 2006 hearing. Soler v. Bd. of Review, No. A-3302-06 (App. Div. Feb. 20, 2008) (slip op. at 13). When the initial hearing began, the appeals examiner believed that the case involved termination and presented the issue whether Soler committed misconduct. After it became clear at the hearing that Castleford maintained that Soler had voluntarily resigned, the appeals examiner orally notified Soler that if Castleford's position were sustained, it would result in disqualifying her for benefits. However, the examiner did not inform Soler that she would also be liable to refund benefits already received. Although Soler consented to proceed with the hearing, we found that she did so without adequate notice.

After our remand, the Appeal Tribunal conducted a new hearing on four separate dates between May 29, 2008 and October 17, 2008. The Appeal Tribunal issued a decision on October 21, 2008, finding that Soler had left work voluntarily without good cause attributable to such work, and therefore was ineligible for benefits. The Tribunal found that Soler arrived late and "[t]he manager requested the claimant [to] demonstrate a willingness to improve her attendance and work a 40-hour week on a regular basis." While Soler "indicated a willingness to do so, . . . [she] also noted that certain family obligations might arise from time to time." Soler was sent home because management had replaced her on the production line for the day, but she was told "to contact the manager when she was ready to resume work." Notwithstanding that "[t]he production manager

. . . did not have the authority to terminate any worker", the appeals examiner found that Soler had the subjective belief that she had been terminated. "She did not continue to report for work as she believed she had been terminated on 09/05/2006."*fn3

The Appeal Tribunal also found that Soler was liable to refund $2,380 in benefits that she received through November 25, 2006.

On March 19, 2009, the Board remanded the claim for more specific findings by the appeals examiner. Given the Appeal Tribunal's finding that Soler believed she had been terminated, the Board ordered the Appeal Tribunal to determine specifically whether the claimant's belief that she was discharged was reasonable. According to the Board:

In our view, if the employer spoke to the claimant in such a fashion or behaved in a manner so that she could reasonably conclude that she had been terminated, she cannot be said to have voluntarily quit her job and this matter must be treated as an involuntary separation.

However, if the claimant's belief were unreasonable, then her separation would be deemed voluntary.

On April 9, 2009, the Appeal Tribunal determined that Soler "had no reasonable basis to conclude she was terminated," especially since Luke "at no time mentioned termination" and "instructed the claimant to return to work when ready." The appeals examiner expressly found Castleford's witnesses more credible than Soler. The Tribunal, therefore, found again that Soler was disqualified from receiving benefits and liable to refund the benefits that she had already received. The Board then affirmed on July 6, 2009. This appeal followed.

Appellant, who appears pro se, raises the following points:

A. THE LEGAL STANDARD OF INTENTION TO VOLUNTARILY LEAVE WORK WAS NOT MET IN THIS CASE.

1. THE EVIDENCE IN THE RECORD DEMONSTRATES THAT THE EMPLOYER TERMINATED THE CLAIMANT DUE TO CLAIMANT'S INDICATION THAT SHE PERIODICALLY HAD FAMILY OBLIGATIONS, AND HER REFUSAL TO RELINQUISH THOSE RIGHTS BY COMMITTING TO A MANDATORY 40 HOUR WEEK WAS NOT A VOLUNTARY QUIT.

2. THE EMPLOYER CHOSE TO HAVE THE TERMINAL CONVERSATION WITH THE CLAIMANT IN ENGLISH, A LANGUAGE SHE HAS DIFFICULTY UNDERSTANDING AND SPEAKING, AND AS A RESULT, IN THE INTEREST OF JUSTICE, EMPLOYER TESTIMONY ON CLAIMANT'S INTENT TO VOLUNTARILY QUIT MUST BE GIVEN NO WEIGHT.

3. THE TESTIMONY SHOWS THAT CLAIMANT SOLER INDICATED THAT SHE WOULD DO HER BEST TO MEET THE FORTY HOUR COMMITMENT OF THE JOB, AND THUS NEITHER QUIT NOR ABANDONED HER JOB.

4. SINCE CLAIMANT SOLER INDICATED THAT SHE ATTEMPTED TO FOLLOW-UP [sic] IN MAINTAINING HER JOB AND REQUEST A MEETING WITH THE COMPANY REPRESENTATIVE, AND THE COMPANY FAILED TO COME FORWARD WITH THE WITNESS AND EVIDENCE IN ITS CONTROL TO CONTROVERT THIS TESTIMONY, AN ADVERSE INFERENCE SHOULD BE HELD AGAINST THE EMPLOYER.

B. THE APPEAL TRIBUNAL OVERLOOKED AND UNDERVALUED EVIDENCE FAVORABLE TO CLAIMANT SOLER SUCH THAT THE DECISION OF THE TRIBUNAL IS MISTAKEN AND ARBITRARY.

C. THE EMPLOYER VIOLATED THE UNION CONTRACTUAL RIGHTS OF THE CLAIMANT AND HER WEINGARTEN RIGHTS AND HELD THE TERMINATION CONVERSATION IN A LIMITED LANGUAGE OF THE CLAIMANT, THUS PROVIDING GOOD CAUSE RELATED TO THE WORK FOR CLAIMANT'S ACTIONS AND VIOLATING PUBLIC POLICY IN A MANNER WHICH REQUIRES THE AWARD OF BENEFITS IN THE INTEREST OF JUSTICE.

D. EVEN IF THIS CASE IS IMPROPERLY HELD TO BE A VOLUNTARY LEAVING, IT WOULD BE A LEAVING PRIOR TO AN IMMINENT DISCHARGE.

E. THE EMPLOYER'S VIOLATION OF CAREGIVER,

FAMILY AND MEDICAL LEAVE, AND UNION TYPE RIGHTS MANDATE A FINDING OF GOOD CAUSE FOR LEAVING EVEN IF THIS CASE IS MISCHARACTERIZED AS A VOLUNTARY LEAVING.

1. DISMISSING AN EMPLOYEE FOR EXPRESSING THE POTENTIAL TO TAKE CAREGIVER AND FAMILY AND MEDICAL TYPE LEAVE IN ACCORDANCE WITH FEDERAL AND STATE LAW OFFENDS PUBLIC POLICY AND OFFENDS THE CLAIMANT'S ESTABLISHED RIGHTS.

2. THE EMPLOYER ADMITTED THAT THE STANDARD OF WORK BEING MANDATED BY PROMISE WAS NOT A STANDARD TO WHICH ALL EMPLOYEES WHERE [sic] EXPECTED TO COMMIT.

3. THE UNEMPLOYMENT COMPENSATION LAW IS REMEDIAL LEGISLATION WHICH IS TO BE LIBERALLY CONSTRUED FOR CLAIMANTS AND WHICH SHOULD PROTECT EMPLOYEES SUCH AS CLAIMANT SOLER WHO REASONABLY PROTECT THEIR RIGHTS.

III.

This court's role in reviewing administrative agency decisions involving unemployment benefits is generally limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. "'[T]he 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.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Thus, the issue is whether the factual findings are supported by sufficient credible evidence. Ibid. In making that determination, we also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).

Nonetheless, a court can intervene if the agency's action was arbitrary, capricious or unreasonable, or it was "'clearly inconsistent with its statutory mission or with other State policy.'" Brady v. Bd. of Review, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Thus, judicial review is confined to determining, first, whether the agency decision offends the State or Federal Constitution; second, whether it violates legislative policies; third, whether the record contains substantial evidence to support the agency decision; and, lastly, whether the agency, in applying legislative policies to the facts, clearly erred in reaching a conclusion that could not reasonably have been made. Id. at 211.

Our state's unemployment compensation law, N.J.S.A. 43:21-1 to 24.30, (Act) is primarily designed to lessen the impact of unemployment that befalls workers without their fault. Id. at 212. "The public policy behind the [Unemployment Compensation] Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989); see also N.J.S.A. 43:21-2 (declaring public interest in addressing the burden of "[i]nvoluntary unemployment").

Therefore, a person who voluntarily quits work for personal reasons, as opposed to causes attributable to work, is ineligible for benefits. "An individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a). Moreover, if an employee receives benefits that were not rightfully due, they must be repaid. N.J.S.A. 43:21-16(d). This is so, even if the employee was acting in good faith in seeking benefits, expended the benefits in reliance on the initial determination, and would face difficulty repaying the benefits. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674-76 (App. Div. 1997).

A court must be mindful of the tension created by two perhaps conflicting tasks: to construe the Act liberally to serve the needs of the involuntarily unemployed, and to avoid the award of undeserved benefits that would deplete resources reserved for the Act's intended beneficiaries.

In order to further its remedial and beneficial purposes, the law is to be construed liberally in favor of allowance of benefits. Nonetheless, it is also important to preserve the fund against claims by those not intended to share in its benefits. The basic policy of the law is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases. [Yardville Supply Co. v. Bd. of Review, supra, 114 N.J. at 374.]

Consistent with that policy, an employee bears the burden to show that he or she is entitled to unemployment benefits. Brady v. Bd. of Review, supra, 152 N.J. at 218. If an employee has voluntarily left work, he or she also has the burden to show that he or she left not for personal reasons, but for "good cause attributable to work." Ibid.

IV.

In the main, Soler's appeal challenges the Appeal Tribunal's fact-findings. She asserts that she was terminated, or was about to be terminated, and Castleford lacked a basis for doing so. However, she also posits the legal argument that in order to be denied benefits, a person must intend to quit, and she did not. Indeed, as the appeals examiner found, Soler believed, albeit unreasonably, that she had been fired. Both arguments ultimately fail.

Applying the deferential standard of review, we find ample support in the record for the finding that Castleford did not terminate Soler, and did not give Soler reasonable cause to believe it had terminated her. We therefore reject Soler's arguments that (1) the Appeal Tribunal's decision was against the weight of the evidence; (2) the Tribunal overlooked or undervalued key evidence; and (3) the Tribunal failed to draw appropriate inferences from the evidence. The appeals examiner considered the witnesses' demeanor and made reasonable credibility determinations to which we defer.

Castleford's plant manager, Jacqueline Luke, testified that Soler was sent home because her work station was filled for the day, after she arrived over three hours late. Luke told Soler that she was not being fired and expressly refused to give Soler a writing to confirm a termination. However, Luke insisted that Soler commit to working full-time. Soler declined, stating that her family came first. Luke testified that Soler understood what Luke was saying, despite Soler's limitations in communicating in English. Luke also testified that Soler was a valued worker, who would have been put to work if she had returned the next day. Moreover, Luke lacked the authority to fire, which both the company vice-president and the union shop steward confirmed.

In sum, the record supports the findings that Castleford did not terminate Soler, and did not give Soler reasonable cause to believe she had been terminated. Consequently, we also reject Soler's argument that her termination violated procedural rights, or punished her for exercising rights under the federal Family and Medical Leave Act, 29 U.S.C.A. §§ 2601 to 2654, and the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16. Moreover, Soler arrived late on September 6, 2006 because she needed to address school transportation issues, and not because she needed to care for a family member suffering from an extended illness. There is no evidence that Soler requested family or medical leave. Cf. Hutchens v. Bd. of Review, 368 N.J. Super. 9, 13 (App. Div. 2004) (stating that agency cannot deny benefits on the basis of N.J.S.A. 43:21-5(a) if claimant was qualified for leave under the Family and Medical Leave Act, had requested leave from the employer, and the employer was aware that the request was based on a need to care for ill family members).

Although the Appeal Tribunal found that Castleford neither terminated Soler, nor gave her cause to believe Castleford had terminated her, the Tribunal found that Soler nonetheless believed she was terminated. Consistent with this finding, Soler argues that she lacked the intent to quit, which, she argues, is essential to finding that she left work voluntarily without good cause attributable to work. We disagree.

First, the Board found in this case, in interpreting the operative law, that a person shall be deemed to have voluntarily left work, even if the employee subjectively believed he or she was terminated, if the employer did not give the employee reason to believe he or she was terminated. The Board's interpretation of its statute is entitled to deference. "Generally, an appellate court should give considerable weight to a state agency's interpretation of a statutory scheme that the legislature has entrusted to the agency to administer." In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010).

Secondly, Soler misapplies our decisions interpreting what it means to leave work "voluntarily without good cause attributable to such work" under N.J.S.A. 43:21-5(a). Under the circumstances of this case - where the employee mistakenly and unreasonably believes she was terminated - it is not necessary to find that the employee intended to resign in order to find that she left work voluntarily without good cause.

We have recognized that an employee who temporarily leaves the workplace after a fleeting disagreement, without intending to cease work permanently, has not voluntarily left work, thereby precluding benefits, as contemplated by N.J.S.A. 43:21-5(a). "Employees frequently leave work temporarily for some fleeting physical or mental irritation, or 'in a huff' occasioned by one or more of the frustrations attending commercial life, without intending to quit." Savastano v. Bd. of Review, 99 N.J. Super. 397, 400 (App. Div. 1968) (remanding to determine whether dishwasher who left workplace after argument with cook left work voluntarily without good cause).

In Savastano, however, we were confronted with only two alternatives: the employee intended to quit, or the employee was fired. Consequently, we defined "the central issue" to be whether "the employee voluntarily le[ft] in the sense of 'quitting' or was he discharged by the employer". Id. at 400-01. However, we had no reason in that case to contemplate a third possibility, which is presented here: the employee ceased working because she erroneously and unreasonably believed she had been discharged. Although Soler may not have intended to resign, she nonetheless ceased reporting for work at Castleford. The same cannot be said of an employee who leaves in a huff one day because of workplace friction, not intending to resign, then cools off and reports to work the next day. Soler left work indefinitely. An employee who has left in a temporary huff has not.

In Fennell v. Board of Review, 297 N.J. Super. 319 (App. Div.), certif. denied, 151 N.J. 464 (1997), we held that the intent to quit was not relevant to deciding whether a claimant had voluntarily left work without good cause. Id. at 324. Fennell voluntarily left work at a hospital's housekeeping department after he was incarcerated on non-employment-related charges and was unable to post bail. Id. at 320-21. Fennell ceased working for reasons not attributable to work. Id. at 324. According to the court, "[n]or is an employee's intent to quit either relevant or controlling, unless the judicially-created exception for illness is implicated." Ibid. Likewise, Soler's lack of intention to resign does not control.

Our decision in this case is consistent with the policy that requires employees to act reasonably to protect their own employment. "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Brady v. Bd. of Review, supra, 152 N.J. at 214 (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)). An employee fails to satisfy that obligation if she ceases work based on an unreasonable, albeit genuine, belief that she has been terminated. Consequently, notwithstanding that Soler genuinely believed that she was terminated, and did not intend to resign from her job, we affirm the Board's decision that she voluntarily left work without good cause attributable to work, as her belief was unreasonable under the circumstances.

Finally, we affirm the Board's decision requiring Soler to refund the benefits previously received. See Bannan v. Bd. of Review, supra, 299 N.J. Super. at 674.

To the extent not specifically addressed, Soler's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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