ROBERTA S. WALKER v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2062-04T32063-04T3

ROBERTA S. WALKER,

Plaintiff-Appellant,

v.

BOARD OF REVIEW,

Defendant-Respondent.

__________________________________

 

Submitted September 26, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from a Final Decision of the

Board of Review.

Roberta S. Walker, appellant pro se.

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent (Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Roberta Walker, appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision holding her disqualified for unemployment benefits under N.J.S.A. 43:21-5(a) for having left work voluntarily, without good cause attributable to the work. We affirm.

Claimant was employed as a legal secretary by the law firm of Gruber, Colabella, Liuzza, Kutyla & Ullmann (respondent) from May 28, 2000, to June 18, 2004. When originally hired, claimant was assigned to work for an attorney, Kevin Kutyla, in the firm's Hopatcong office. The firm also had an office in Newton. According to the respondent's office manager, Sharon Gruber, claimant was also informed at that time that she had to be available to work at either office location. Although claimant denied being advised at time of hire of possible transfers between the firm's two offices, shortly thereafter, in September, 2000, Kutyla was reassigned to the Newton office and, consistent with office policy that secretaries transfer to their assigned attorney's workplace, claimant relocated to the Newton office as well. In November, 2003, claimant purchased a home within a ten-minute commute of Newton. However, in June, 2004, Kutyla and claimant were reassigned back to the Hopatcong office, but this time, claimant refused to transfer because she had farm animals to take care of and because the commute to Hopatcong would have taken one hour. Because claimant worked for Kutyla, there were no available positions for her at the Newton office once Kutyla was reassigned to Hopatcong.

In finding her ineligible for the unemployment compensation benefits she sought, the Appeal Tribunal credited respondent's account that claimant was hired with the understanding that she could be transferred between the two office locations over claimant's denial. Indeed, claimant herself acknowledged during the hearing that she was not promised employment at one work site only. And, in fact, claimant had been assigned to the Newton office from the Hopatcong office within the first few months of her employment with the law firm. Thus, the Appeal Tribunal concluded:

Since the claimant was hired with the understanding that she would be required to work in either of the employer's work sites, her separation from work is a voluntary leaving for personal reasons and is without good cause work connected. There was no offer of new work.

As noted, the Board affirmed the 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. See Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (stating the agency's determination carries "a strong presumption of reasonableness"). 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[,]

. . . [un]supported 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); see also Brady, supra, 152 N.J. at 2ll; 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 she 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).]

Generally speaking, ". . . employees who leave work because of commuting problems are not entitled to unemployment compensation." Self v. Bd. of Review, 91 N.J. 453, 460 (1982). See also Roche v. Bd. of Review, 156 N.J. Super. 63, 65 (App. Div. 1978) (explaining that leaving work for a personal reason disqualifies employee from receiving unemployment compensation); Morgan v. Bd. of Review, 77 N.J. Super. 209, 214 (App. Div. 1962) (stating that "commuting is usually considered a problem of the employee"). To be sure, "a case could possibly be envisaged in which a sudden change in employment circumstances greatly increasing the commuting distance from home to job would properly be regarded as a condition attributable to the work rather than to the employee." Bateman v. Bd. of Review, 163 N.J. Super. 518, 521 (App. Div. 1978); see also Rolka v. Bd. of Review, 332 N.J. Super. 1, 4-5 (App. Div. 2000). However, this is not such a case. Simply put, claimant has not "made a showing of substantially increased commuting distance by reason of the employer's relocation, with significant personal inconvenience attributable to the move." Rolka, supra, 332 N.J. Super. at 5.

Here, claimant chose to relocate her home knowing full well of the possibility of an assignment to the Hopatcong office. Her decision to relocate was a purely personal decision for which her employer bears no responsibility. The consequences of such a move, therefore, are attributable solely to her. Moreover, by her own admission, any inconvenience from the added commuting time arises from personal responsibilities at home, including caring for her farm animals. Thus, her decision to leave gainful employment for certain unemployment was motivated by personal factors which, however related to her work reassignment, were essentially independent of it.

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)

7

A-2063-04T3

October 11, 2005