CATHERINE E. MURRAY v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2563-04T12563-04T1

CATHERINE E. MURRAY,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

Respondent.

_____________________________________

 

Submitted December 12, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from a Final Decision of the Board of Review, Department of Labor, 41,786.

Rothberg & Federman, attorneys for appellant; (Melvin C. McDowell, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Jennifer B. Pitre, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Catherine E. Murray, appeals from a final determination of the Board of Review (Board) finding her ineligible for unemployment compensation benefits. For reasons stated, we affirm.

Claimant was employed by SUNRx, Inc., a small pharmaceutical retail company, as a client services manager from March, 2002, until June 22, 2004, when she left employment. On July 14, 2004, a Deputy Director found her eligible for benefits from June 27, 2004, determining that she resigned from her employment due to what she believed to be unethical business practices by her employer. The employer appealed, and the Appeal Tribunal conducted a hearing on August 27, 2004. On September 1, 2004, the Appeal Tribunal reversed the decision of the Deputy Director, determining that claimant left work voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). On September 8, 2004, claimant appealed to the Board. On November 12, 2004, the Board affirmed the determination of the Appeal Tribunal. Claimant appeals. Claimant testified before the Appeals Examiner that she left employment because she believed her employer was unethical and deceptive when it accepted money from its customers, while not paying the pharmaceutical suppliers, causing the suppliers to withhold shipments of medication to the employer's customers. She testified that because her immediate supervisor was on vacation, she verbally notified Lance Aizen, Executive Vice President and Chief Financial Officer of SUNRx, she was resigning on June 22, 2004.

Aizen testified that on the day in question he had a meeting with both claimant and a second employee, Betty Ngo, wherein the two employees inquired when they would receive a pay increase. During the meeting, Aizen was advised of a complaint from one customer who had not received his/her medication, although the customer had paid for the same. Aizen testified that while the two employees were in his presence, he contacted the company's mail order pharmaceutical supplier, and ascertained that the problem was due to the supplier not pricing the drug properly. The supplier was withholding the medication because it was experiencing a loss on the product. Aizen advised the supplier that SUNRx would forward a check covering the price difference to prevent the supplier from incurring a loss. The check was forwarded that day, and the medication was received by the customer without any further complaints. Aizen testified that the claimant had not advised him of her resignation that day, and he expected her to be at work the following day. After three days of absence, the employer considered claimant to have abandoned her job, and forwarded a letter confirming her termination of employment.

Ngo confirmed Aizen's testimony. Ngo testified that she had gone home with the claimant on June 22, 2004, and that claimant's last words to Ngo were: "Betty [Ngo] I [will] see you tomorrow." Ngo's expectation was that claimant would be at work the following morning, and when claimant didn't show, Ngo attempted to telephone claimant about five times to find out why she failed to arrive at work.

The Appeal Tribunal determined that claimant was not eligible for benefits pursuant to N.J.S.A. 43:21-5(a), because she left her job voluntarily without good cause attributable to the work. The Tribunal's decision provides in part:

It is the opinion of this Tribunal that for one, the claimant has not presented sufficient evidence or proof that her employer engaged in unethical practices towards customers, furthermore, the claimant did not give her employer a reasonable time to discuss the issues of her concern by at least waiting for the other members of management to return from vacation rather than leaving her job in such an abrupt manner.

N.J.S.A. 43:21-5 provides in pertinent part:

An individual shall be disqualified for benefits: (a) 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 has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

[N.J.S.A. 43:21-5.]

Although the statute does not define "good cause," we have observed where the reason is "sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed," good cause exists. Doering v. Bd. of Review, 203 N.J. Super. 241, 245-246 (App. Div. 1985). The question to be answered is whether an individual who "leaves a job under the pressure of circumstances . . . may reasonably be viewed as having [been] compelled" to such action. Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 464 (1953).

Appellate courts have a limited role in reviewing decisions of an administrative agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); State-Operated Sch. Dist. of Newark v. Gaines, 309 N.J. Super. 327, 331 (App. Div.) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)), certif. denied, 156 N.J. 381 (1998). There should not be an independent assessment of the evidence by the appellate court. In re Taylor, 158 N.J. 644, 656 (1999). The appellate court must accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982); City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Thus, the determinations of the administrative agencies must be given great deference. State v. Johnson, 42 N.J. 146, 159 (1964). We cannot overturn an agency's decision that is based on sufficient evidence, even if this court would have reached a different result. Outland v. Bd. of Trs., 326 N.J. Super. 395, 400 (App. Div. 1999).

Conversely, a reviewing court is not bound to uphold an agency determination unsupported by sufficient evidence. Henry, supra, 81 N.J. at 579-80. Courts are not to act simply as a rubber-stamp of an agency's decision where it is not supported by substantial credible evidence in the record as a whole or found to be arbitrary, capricious or unreasonable. Ibid.; Marro v. Dep't of Civil Serv., 57 N.J. Super. 335, 346 (App. Div. 1959).

The Appeal Tribunal's determination that claimant left work voluntarily and not because the employer was engaged in unethical business practices towards its customers is amply supported by sufficient, credible evidence in the record. Aizen's testimony refuted the allegations of unethical business practices, and both Aizen's and Ngo's testimony countered claimant's testimony that she resigned on June 22, 2004, because of her belief of unethical business practices by the employer. The Appeals Examiner, who had the opportunity to hear the testimony and assess credibility, did not credit claimant's testimony concerning why she left employment and credited the employer's account of the event. We defer to those findings on credibility. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).

 
We conclude, from a review of the record, that the Appeal Tribunal properly determined that claimant failed to establish that she left employment for good cause attributable to work, determining that there an absence of credible evidence that the employer was engaged in unethical business practices. Even assuming that one might have mistakenly come to that conclusion, we agree with the Appeal Tribunal that such employee would probably have discussed his/her belief with the employee's immediate supervisor, to confirm or refute the employee's belief, prior to resigning. Here, this was not the case. Claimant left work before her immediate supervisor returned from vacation. Evidence that she failed to wait and talk to her immediate supervisor concerning her belief, supports the Appeal Tribunal's conclusion that claimant left employment for reasons other than stated. Accordingly, we affirm.

Therefore, if, in reviewing an agency decision, an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

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A-2563-04T1

December 28, 2005