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Nzinga Jackson v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 12, 2012

NZINGA JACKSON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKPLACE DEVELOPMENT, AND VERIZON NEW JERSEY, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 302,903.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012

Before Judges Messano and Kennedy.

Appellant, Nzinga Jackson, appeals from an order of the Board of Review affirming a decision of the Appeal Tribunal that she was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. We affirm.

Jackson was employed by Verizon New Jersey, Inc. (Verizon) from February 25, 2008 to September 4, 2010. She resigned from her position as a customer service representative, effective as of that date, after having earlier accepted a voluntary severance package offered by Verizon.

Jackson contended that she accepted the package because her union representative told her she was going to be laid off. Jackson never spoke with Human Resources or her supervisor at Verizon to ascertain if she would be laid off, but rather based her decision solely upon her discussions with her union representative. As it turned out, due to the "overwhelming" number of employees that accepted the separation package, Verizon did not lay off any employees.

Jackson filed a claim for unemployment benefits, but the Deputy Director disqualified her for benefits, finding that "[Jackson] left work voluntarily without good cause attributable to such work." Jackson then appealed and the Appeal Tribunal affirmed, finding, in pertinent part:

The claimant contends that she did not leave the work voluntarily without good cause attributable to the work. The claimant alleges that she was informed by her union that she would most likely be laid off in the future because of her lack of seniority. She further alleges that she would have been laid off sometime in 5/11. However, the claimant was not forced to accept the severance package. The customer service manager testified that the claimant was not under a direct threat of being laid off if she did not accept the package. No one was laid off because a large number of employees chose to accept the severance package. Continuing work was still available for the claimant had she not accepted the package and resigned. Therefore, the claimant's contention is rejected.

Substantial evidence provided during the hearing established that the claimant voluntarily left the job when she accepted a voluntary severance package. While that may be a valid reason for leaving the job, it is a personal reason and not connected to the work itself. it is considered that the claimant left work voluntarily without good cause attributable to such work and is, therefore disqualified for benefits under N.J.S.A. 43:21-5(a) as of 8/29/10.

The Board of Review affirmed and this appeal followed.

Before us, Jackson contends that she left work because of "several factors" constituting good cause attributable to work. Jackson asserts, without support in the record, that her health had deteriorated due to "stress" at work. These contentions, however, were neither raised below not supported by evidence in the record. We, therefore, decline to address these issues. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-235 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'") (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but 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)). "If the Board's factual findings are supported by 'sufficient credible evidence, [we] are obligated to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). 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). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

An employee is disqualified for benefits: for 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 re-employed and works four weeks*fn1 in unemployment . . . . [N.J.S.A. 43:21-5(a).]

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to the work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "While the statute does not define 'good cause,' our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" as "a reason related directly to an individual's employment, which was so compelling as to give the individual no choice but to leave the employment."

An employee who leaves work for personal reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self, supra, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute cause for leaving work voluntarily." Domenico, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "'The decision to leave unemployment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) (quoting Domenico, supra, 192 N.J. Super. at 288); see also In re N.J.A.C. 12:17-9.6 State Dept. of Labor, 395 N.J. Super. 394, 399-400 (App. Div. 2007). "[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 (citing Condo, supra, 158 N.J. Super. at 175).

In the context of voluntary early resignation, an employee will not be found to have left for good cause attributable to the work unless the employee's "'subjective fear [of imminent layoff] was based upon definitive objective facts . . . to buttress [the] belief that [her] job[] would actually be eliminated in the impending work reduction,' and (2) that [the] claimant[] would suffer substantial economic loss." Brady, supra, 152 N.J. at 215 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993)); see also Fernandez, supra, 304 N.J. Super. at 607. "[I]mminent layoff or discharge is one in which the individual will be separated within 60 days." N.J.A.C. 12:17-9.5.

Jackson's argument that she was effectively terminated finds no support in the factual record. She was never threatened with the prospect of imminent termination. Instead, she made a personal decision to voluntarily leave work to secure a beneficial early resignation package. The threat or possibility of a layoff is an insufficient basis to trigger the right to receive benefits. The Board's decision that Jackson was ineligible for unemployment benefits was supported by substantial, credible evidence, and we find no reason to disturb it.

Affirmed.


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