JAHMAL B. NELSON v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2010-04T52010-04T5

JAHMAL B. NELSON,

Plaintiff-Appellant,

v.

BOARD OF REVIEW and EAST

ORANGE BOARD OF EDUCATION,

Defendants-Respondents.

_________________________________

 

Submitted September 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from a Final Decision of the Board

of Review.

Jahmal B. Nelson, appellant pro se.

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent, Board of Review

(Michael J. Haas, Assistant Attorney General,

of counsel; Alan C. Stephens, Deputy Attorney

General, on the brief).

PER CURIAM

Claimant, Jahmal B. Nelson, appeals from an order of the Board of Review (Board), which affirmed the Appeal Tribunal's decision denying his claim for unemployment compensation benefits because he left the job without good cause attributable to the work, N.J.S.A. 43:21-5(a). We affirm.

Claimant was employed as a school social worker by respondent, East Orange Board of Education, from September, 2003, until his resignation on June 28, 2004. At the time of resignation, claimant was assigned to the school district's Child Study Team. Although respondent offered him a contract to return the following school year, claimant resigned supposedly because he "could not properly service the children like [he] was trained," and the district's inadequate social service programs began to affect his health. He filed a claim for unemployment benefits effective June 27, 2004.

This claim was denied by the Deputy Director (Deputy) of the Division of Unemployment and Disability Insurance, who found:

You voluntarily left your job because you were dissatisfied with the working conditions. There is no evidence that the conditions of your employment were so severe as to cause you to leave available work to become unemployed. Therefore, your reason for leaving does not constitute good cause attributable to the work. You are disqualified for benefits.

Following claimant's appeal, the Appeal Tribunal affirmed the Deputy's determination, holding:

The claimant's leaving of employment because he did not agree with the employer's policy is a personal reason for leaving, in light of the fact the claimant remained in that employment for the entire school term. The claimant's leaving is without good cause.

As noted, the Board affirmed this decision, which, on appeal, claimant argues is erroneous.

Our scope of review of an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. of Tp. of Neptune v. Neptune Tp. Educ. Ass'n., 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

Applying these principles, we are in complete accord with the Board's decision denying claimant benefits. The governing statute, N.J.S.A. 43:21-5(a), provides that an individual is disqualified for unemployment compensation benefits where that individual has left work voluntarily without good cause attributable to such work. In order to avoid disqualification, the claimant has the burden to establish that he left work for good cause attributable to the work. Brady, supra, 152 N.J. at 218. "Good cause means 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,' and the reasons for terminating employment 'must meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal citations omitted).

Persons who leave work for good, but personal, causes are not eligible for unemployment benefits. Brady, supra, 152 N.J. at 213. By the same token, "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 v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983). Rather,

[t]he decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . it is the employee's responsibility to do what is necessary and reasonable in order to remain employed.

[Ibid. (citations omitted).]

Here, claimant resigned simply out of personal dissatisfaction with the district's alleged failure to meet the needs of school children, and there is no evidence that the working conditions were so abnormal, severe, or oppressive to justify his quitting work under the circumstances. Nor is there any competent proof, much less medical certification, N.J.A.C. 12:17-9.3(d), establishing that claimant left work for health-related reasons. N.J.S.A. 43:21-5(a); see also Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971). Absent from the record is evidence of any nexus between the claimed working conditions and the claimant's illness or disability forcing him to voluntarily leave employment. Ibid.

Finally, for the first time on appeal, claimant contends that he left work to pursue a better position elsewhere and is, therefore, entitled to unemployment benefits under Rider College v. Bd. of Review, 167 N.J. Super. 42, 46-47 (App. Div. 1979). We disagree. In the first place, having failed to raise the issue below, claimant is not entitled to review on appeal. Nieder v. Royalty Indem. Ins. Co., 62 N.J. 229, 234 (1973); R. 2:6-2. In any event, there is no proof in the record that claimant had secured another position when he quit respondent's employ, much less one that represented any improvement in working conditions or fringe benefits. Of course, even if a more favorable position were secured, the reason for leaving remained personal. It in no way related to claimant's employment for respondent and, therefore, did not constitute "good cause" attributable to the former job. Rider College, supra, 167 N.J. Super. at 47-48.

The Board's decision finding claimant disqualified from unemployment benefits was "supported by substantial credible evidence in the record as a whole." Barry v. Arrow Pontiac, Inc., supra, 100 N.J. at 71. We discern no basis to disturb the Board's determination.

 
Affirmed.

(continued)

(continued)

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A-2010-04T5

September 20, 2005