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Rolando Montero v. Board of Review


December 5, 2011


On appeal from the Board of Review, Department of Labor, Docket No. 227,229.

Per curiam.


Submitted October 13, 2011

Before Judges Harris and Koblitz.

Rolando Montero appeals from a December 8, 2010 final agency decision of the Board of Review (Board), which affirmed the June 17, 2010 decision of the Appeal Tribunal that disqualified Montero from receiving unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to his employment. The Appeal Tribunal found that Montero voluntarily left his job by leaving work due to illness and failing to provide medical documentation, keep in touch with his employer, or return to work. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Montero was employed by the Institute of Nutrition and Natural Health (the Institute) from February 1, 2005 until January 23, 2009. By the end of his tenure, he was earning $12 an hour as a clerk. He worked primarily in the company's New York store, although he had also worked temporarily at its New Jersey location. He ceased reporting to work in the middle of November 2008 due to illness and traveled to Cuba for medical treatment. Montero claimed that the company terminated him in January, before he returned from Cuba, because it closed its New York location. He indicated he had not spoken with his employer, but instead found out about the store closing from his wife, who was another Institute employee.

The president and owner of the company, Maria Santa Cruz, testified that she asked Montero for documentation regarding his illness several times without success. She said she was aware that he had gone to Cuba and simply never heard from him again. She also indicated that although she fired Montero's wife, Montero's job remained available to him.

We review Montero's contentions in accordance with our established standard of review. The Board's determination that Montero 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).

We "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. 111, 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." 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, they must be upheld. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588-89 (1988).

The burden of proof rests on Montero to establish his right to unemployment compensation. Brady, supra, 152 N.J. at 218. At the time Montero's claim was denied,*fn1 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 . . . and has earned in employment at least six times the individual's weekly benefit rate . . . . [N.J.S.A. 43:21-5(a) (emphasis added).]

While "good cause" is not statutorily defined, "New Jersey courts have construed the phrase to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Brady, supra, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). We have previously clarified that the statute requires more than mere dissatisfaction with working conditions:

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. [Domenico, supra, 192 N.J. Super. at 288 (internal quotations and citations omitted).]

The New Jersey Administrative Code further specifies that "good cause" requires "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). Thus, an employee who quits a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a). See Self v. Bd. of Review, 91 N.J. 453, 457 (1982) (explaining that "a departure not attributable to work . . . will disqualify the employee from receiving unemployment benefits").

Moreover, a claimant who leaves work for a valid but otherwise personal reason is subject to disqualification pursuant to that same statute. Morgan v. Bd. of Review, 77 N.J. Super. 209, 214 (App. Div. 1962) (holding that an "employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work" because "[c]ommuting is usually considered a problem of the employee"). The only recognized exception to that rule is where an employee is unable to work because of illness and takes appropriate action to protect his or her employment. Self, supra, 91 N.J. at 457 (citing DeLorenzo v. Bd. of Review, 54 N.J. 361, 364 (1969)).

The Appeal Tribunal found Santa Cruz's testimony to be more credible than Montero's version of the facts. We are obliged to defer to the credibility findings of the Appeal Tribunal. Logan v Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). Santa Cruz testified that after Montero left work, purportedly for health reasons, he did not contact her, provide medical documentation, or return to work.

The Appeal Tribunal found that "[t]he claimant's actions in failing to return to work and submit the medical note demonstrates his intent to se[]ver the employer-employee relationship." A Department of Labor regulation indicates:

An employee who is absent from work for five or more consecutive work days and who without good cause fails to notify the employer of the reasons for his or her absence shall be considered to have abandoned his or her employment. Such job abandonment shall subject the employee to disqualification for benefits for voluntarily leaving work without good cause attributable to such work. For purposes of this section good cause means any situation over which the claimant did not have control and which was so compelling as to prevent the employee from notifying the employer of the absence. [N.J.A.C. 12:17-9.11(a).]

The record supports the Board's conclusion that Montero failed to provide his employer with documentary proof of his illness or take adequate steps to preserve his employment and left "voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). In accordance with the Board's findings, Montero is therefore disqualified from receiving unemployment compensation benefits.


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