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Maria R. Asencio v. Board of Review

April 13, 2011

MARIA R. ASENCIO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND PHELAN, HALLINAN & SCHMIEG, P.C., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 266,272.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2011

Before Judges Wefing and Koblitz.

Maria R. Asencio appeals from a May 21, 2010, final agency decision of the Board of Review (Board), finding that she was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to her employment. We affirm.

Asencio began working in the title claims department of the law firm of Phelan Hallinan & Schmieg, L.L.C. (PHS) on March 2, 2009. She claims she was given a large amount of work and after five months was promoted to team leader of her department, a position of great responsibility but no salary increase. She worked long hours, for which she was paid on an hourly basis.

At her performance review, Asencio indicates that her supervisor rated her as only "satisfactory" and blamed her for "the lack of moral[e] and negativity in the department." Asencio, believing she was being used as a scapegoat, and that she was under too much stress given her medical condition, resigned her position on November 22, 2009, upon advice from her physician. She did not ever disclose any medical condition to her employer as she believed her employer would not keep the condition confidential.

Asencio said she had worked for thirty-three years in title work, but never for a law firm such as PHS that handled foreclosure matters. She testified that had she been given a raise, she would have remained on the job because she would have known that "all [her] hard work and [her] dedication was appreciated."

The Appeal Tribunal found that Asencio, chose to leave the job after she became upset when her supervisor made comments during a performance review that she believed were harsh and unwarranted.

An employer has a right to criticize an employee's performance. At her hearing the testimony of the claimant did show that she was unhappy when she was criticized about the department, however, she did not demonstrate that the employer's criticism was so severe or harsh as to give the claimant good cause for voluntarily leaving the job, at the time and under the circumstances that she did. Furthermore, the following day the claimant sent an e-mail to [her] superiors, explaining that [her supervisor] was the reason she would not return, rather than making the attempt to resolve her complaints against the supervisor and remaining at work. Additionally, the claimant did not present medical documentation that her health was affected by the working conditions.

The Board affirmed the decision of the Appeal Tribunal finding that Asencio left work voluntarily without good cause attributable to her employment. N.J.S.A. 43:21-5(a).

We review Asencio's contentions in accordance with our standard of review. The Board's determination that Asencio was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

An appellate court "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "'In reviewing the factual findings made in an unemployment compensation proceeding, the 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.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, we must uphold them. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

At the time Asencio's claim was denied, a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant is disqualified for 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 and works for four weeks in employment . ...


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