CHERYL SMITH v. BOARD OF REVIEW DEPARTMENT OF LABOR THE LEARNING PARADISE INC

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Superior Court of New Jersey, Appellate Division.

CHERYL A. SMITH, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and THE LEARNING PARADISE, INC., Respondents.

DOCKET NO. A–1144–11T3

Decided: April 9, 2014

Before Judges Harris and Kennedy. Mark F. Hughes, Jr., attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel;  Christopher M. Kurek, Deputy Attorney General, on the brief).

Cheryl Smith appeals from a final agency action of the Board of Review affirming a decision of the Appeal Tribunal that disqualified her from unemployment compensation benefits under N.J.S.A. 43:21–5(a) because she left work voluntarily without good cause attributable to the work.   Appellant argues that the Board erred by not “weigh[ing] the evidence de novo,” and by not finding that she left work to avoid a “dangerous employee” whom she feared.   Having considered these arguments in light of the record and applicable law, we affirm.

I.

Appellant was the Director and head teacher at the Learning Paradise preschool from January 14, 2008, until May 26, 2010.   Among her duties, appellant was responsible for hiring and discharging teachers and other staff members, and for managing the employees.   One employee hired by appellant to work as a teacher at the school, S.P., had been an acquaintance of hers.   Over time, however, appellant developed concerns about S.P.'s fitness to serve as a teacher.

Appellant observed S.P. arrive late for school, make phone calls during class hours, and fail to pay appropriate attention to her preschool students.   Although appellant had fired other staff members in the past, in April 2010 she suspended S.P. for two days because of an incident at the school.   The next day, however, the owner of the Learning Paradise asked S.P. to return to her duties because another teacher was absent, leaving the preschool “short staffed.”

When appellant thereafter discussed S.P.'s substandard performance with the preschool's owner, the owner advised appellant to document and memorialize S.P.'s work problems.   The owner later explained at the unemployment hearing that appellant had authority to simply “fire” S.P., and that she had never been told that S.P. had threatened appellant at any time.

On May 26, 2010, S.P. arrived late for work and argued with appellant.   S.P. then left the preschool, and appellant assumed she had resigned.   Sometime later that day, appellant advised the owner about the incident, and the owner replied that S.P. would return to the preschool that day because the air conditioning system needed repair and the individual hired to make the repair was a friend of S.P. who would not service the unit unless S.P. were present.

Shortly thereafter, S.P. returned to the Learning Paradise and became “hostile” when she encountered appellant and her five year-old daughter in a hallway.   Appellant asserted that S.P. “screamed” at her, frightening the child, and followed appellant to her car where she struck the window and said “she wasn't done with [her] yet.”

Appellant then drove home, and sent an e-mail to the owner stating she felt threatened and would not return to the school.   She thereafter applied for unemployment benefits.   However, on June 11, 2010, the Director of the Division of Unemployment Insurance sent appellant a notice disqualifying her for benefits, finding she had “left work voluntarily” without good cause attributable to her work.   He acknowledged appellant's claim that she had felt threatened by S.P., but concluded that it did not give rise to “good cause” because appellant had not made “all possible efforts to resolve the situation prior to leaving” the job.

Appellant filed a timely appeal from that determination, and there followed two hearings before a hearing officer, a decision by the Appeal Tribunal and a remand by the Board.   On February 18, 2011, the Appeal Tribunal issued its decision and rejected the arguments raised by appellant.

The tribunal noted appellant's contention that she “did not discuss the final day's events with the owner prior to resigning, because she believed the owner had not been responsive to her concerns in the past,” and therefore would not be “responsive to this issue.”   The tribunal explicitly rejected this contention, and explained that the owner had earlier advised appellant to document and memorialize the problems of S.P., and that appellant “could have discharged [S.P.] instead of resigning herself.”

The tribunal concluded that appellant left work voluntarily without good cause attributable to her work, and disqualified her for benefits under N.J.S.A. 43:21–5(a).   The Board of Review affirmed on September 13, 2011, and this appeal followed.

II.

Our “judicial capacity to review administrative agency decisions is limited.”  Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).  “Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable.”  Burris v. Police Dep't, Twp. of W. Orange, 338 N.J.Super. 493, 496 (App.Div.2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980)).  “The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action.”  In re Arenas, 385 N.J.Super. 440, 443–44 (App.Div.), certif. denied, 188 N.J. 219 (2006).   See also Barone v. Dep't of Human Servs., 210 N.J.Super. 276, 285 (App.Div.1986), aff'd, 107 N.J. 355 (1987).   In matters involving unemployment benefits, we accord particular deference to the expertise of the Board of Review, and its construction and application of Title 43.   See generally Brady, supra, 152 N.J. at 210;  Doering v. Bd. of Review, 203 N.J.Super. 241, 245 (App.Div.1985).   If the Board's factual findings are supported “by sufficient credible evidence, courts are obliged to accept them.”  Brady, supra, 152 N.J. at 210 (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (l982)).

“The underlying purpose of the Unemployment Compensation Law ‘is to provide some income for the worker earning nothing because he is out of work through no fault or act of his own.’ ”  Futterman v. Bd. of Review, 421 N.J.Super. 281, 288, 23 (App.Div.2011) (emphasis omitted) (quoting Brady, supra, 152 N.J. at 212) (internal quotation marks omitted).   A person 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 reemployed and works eight weeks in employment․

[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 work.”  Brady, supra, 152 N.J. at 218;  N.J.A.C. 12:17–9.1(c).

“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, 469 (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 the individual's employment, which was so compelling as to give the individual no choice but to leave the employment.”

In Condo v. Bd. of Review, supra, 158 N.J.Super. 172, an employee had been threatened with physical violence by one of his co-workers.  Id. at 173.   We reversed a denial of eligibility for unemployment benefits holding “threats of physical violence directed to an employee from which he [or she] may reasonably conclude that his [or her] personal safety is endangered thereby inculcating a genuine fear in the employee is an abnormal working condition” constituting “good cause for that employee to voluntarily leave his [or her] employment.”   Id. at 175.

Appellant asserts that while she was not physically attacked, she felt “very threatened” and that this alone constitutes “good cause.”   We disagree and draw no parallels between this matter and the facts reviewed in Condo.

Here, appellant's safety was not at stake;  rather, she left work out of personal dissatisfaction with the conduct of S.P. and with what she perceived to be a lack of support from the owner.   This, however, was not so abnormal, severe, or oppressive to justify her quitting work.   See Gerber v. Bd. of Review, 313 N.J.Super. 37, 40 (App.Div.1998) (holding that criticism from supervisors, although arguably improper and humiliating, was not sufficient to support good cause for severing employment).

An employee who leaves work for good, but 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, 400 (App.Div.1979).  “ ‘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.’ ”  Domenico, supra, 192 N.J.Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J.Super. 338, 345, 174 (App.Div.1961)).  “ ‘The decision to leave employment must be compelled by real, substantial and reasonable circumstances ․ attributable to the work.’ ”  Shuster v. Bd. of Review, 396 N.J.Super. 240, 244–45, 933 (App.Div.2007) (quoting Fernandez v. Bd. of Review, 304 N.J.Super. 603, 606, 701 (App.Div.1997)).  “[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.

Here, appellant left her job because she was upset after being confronted by S.P. This was a personal reason, not a reason so compelling that appellant had no choice but to leave.   As we have noted, appellant, as director of the Learning Paradise and S.P.'s supervisor, could have ordered her discharge.   Appellant's perception that she would not be supported by the owner was rejected by the Board as a basis for “good cause.”   We are satisfied that the determination that appellant left work voluntarily without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.

Affirmed.

PER CURIAM

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