GARY SIEGLER v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5468-04T25468-04T2

GARY SIEGLER,

Appellant,

v.

BOARD OF REVIEW,

Respondent.

_________________________________________________________

 

Submitted January 24, 2006 - Decided February 28, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Board of Review, Department of Labor, Docket No. 63,687.

Gary Siegler, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Allan J. Nodes, Deputy Attorney General, on the brief).

PER CURIAM

Claimant Gary Siegler appeals from the Final Decision of the Board of Review, affirming the decision of the Appeal Tribunal that claimant was disqualified from unemployment compensation benefits because he left his employment without good cause attributable to the work. Claimant argues that he was fired by his employer and should not have been disqualified from receiving benefits. We affirm.

The facts are not complicated. Claimant was employed as a loan officer handling residential mortgage loans by PCI Staff Leasing. Claimant worked full-time and was compensated on a commission basis. Ordinarily, claimant was paid fifty percent of the commission his employer received upon the closing of each loan, but claimant would also receive advances on certain loans prior to their closings. Near the end of calendar year 2004, claimant's employer informed claimant that he could no longer receive advances and had claimant sign an agreement to that effect.

On January 7, 2005, Bruce Hirschfeld, the owner of Montvale Mortgage Company to whom claimant reported directly, and Kevin Keirson, the Vice President, met with claimant and informed him that they wanted to give his desk to another employee. They requested that claimant continue his employment by working at home. Claimant informed Hirschfeld and Keirson that he would not accept that proposed arrangement. Hirschfeld told claimant to think about it over the weekend.

According to claimant, based on that conversation, he considered himself to be terminated. He filed for unemployment benefits the following day. He did not feel it was his responsibility to discuss the situation with his employer after he was asked to consider working from home.

According to Hirschfeld, he did not terminate claimant's employment. He inquired as to whether claimant would mind working from home. When claimant objected, Hirschfeld told him he could keep his desk. Hirschfeld stated that he did not even know that claimant had quit until he was informed claimant had applied for unemployment benefits.

Claimant spoke to Keirson when he returned to pick up his final paycheck. Keirson told claimant that they were not trying to "railroad" him. Keirson explained that the company was expanding. He informed claimant that when there was additional office space available, claimant could have his desk back. Claimant responded, "when you take away my desk, you're firing me."

Claimant filed a claim for unemployment benefits as of January 2, 2005. In a determination issued on January 27, 2005, a deputy director for the Division of Unemployment Insurance determined that claimant was disqualified for benefits because he left his job voluntarily without good cause attributable to the work. On January 29, 2005, claimant appealed the deputy director's determination to the Appeal Tribunal. A hearing was held before the Appeal Tribunal on March 7, 2005. On March 8, 2005, the Appeal Tribunal issued a decision finding that claimant was disqualified for benefits because he left his employment without good cause attributable to the work:

We find that employer['s] testimony as to the event leading to the separation to be the more persuasive. The claimant's assertion that he was denied use of a desk, thereby causing him to be effectively "discharged," is not in consonance with the more reasoned employer testimony. Even the claimant's witness was unable to provide substantive support to the claimant's assertions of discharge.

One must apply the test of ordinary common sense and prudence to determine whether an employee's decision to leave work constitutes good cause within the statute. Further, a claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed. Brady v. Board of Review, 152 N.J. 197 (1997).

The claimant has failed to demonstrate that he was in fact discharged, as the employer had not otherwise expressed his intent to discharge the claimant, his separation was a voluntary one without good cause attributable to such work. Therefore, he is disqualified for benefits as of 1/2/2005 in accordance with N.J.S.A. 43:21-5(a).

In reaching its determination that claimant was not qualified for benefits, the Appeal Tribunal noted that he left his position after being asked to relinquish his desk at the office and work at home. It found, however, that when claimant objected to that arrangement, his employer withdrew the request. Nevertheless, claimant did not return to work. Thus, the Appeal Tribunal found that claimant was disqualified for benefits pursuant to N.J.S.A. 43:21-5.

Claimant appealed the determination of the Appeal Tribunal to the Board of Review. On May 10, 2005, the Board of Review affirmed the decision of the Appeal Tribunal. This appeal ensued. Claimant now argues that he did not voluntarily without good cause leave his employment. Instead, claimant asserts he was terminated by his employer. Thus, he contends he should not be disqualified from receiving unemployment benefits by N.J.S.A. 43:21-5(b).

In reviewing the final determination of an administrative agency, we generally defer to the agency's findings of fact. "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1995)). "Thus, if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Accordingly, an appellate court "will not reverse the determination of an administrative agency unless it is arbitrary, capricious or unreasonable or is not supported by sufficient, credible evidence in the record as a whole." Dennery v. Bd. of Ed. of the Passaic County Regional High School District # 1, 131 N.J. 626, 641 (1993) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)); Harris v. Bd. of Trs. of the Pub. Emples. Ret. Sys., 378 N.J. Super. 459, 464 (App. Div. 2005); Kossup v. Bd. of Trs. Police and Fireman's Ret. Sys., 372 N.J. Super. 468, 472 (App. Div. 2004).

N.J.S.A. 43:21-5 provides in relevant 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 works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

The term "good cause" is not defined in N.J.S.A. 43:21-1 et seq. It has, however, been construed in our case law. We have observed that:

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. "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." The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. Threats of physical violence directed to an employee from which he may reasonably conclude that his personal safety is endangered have been found by this court to constitute good cause for that employee to voluntarily leave his employment. However, it is the employee's responsibility to do what is necessary and reasonable in order to remain employed.

[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal citations omitted) (emphasis added).]

 
Here, the claimant asserts that his employer's request to work from home was a constructive termination of his employment. We observe, however, that he was told to think it over and was never actually deprived of a desk or a place to work. A request to work from home is not a "real, substantial and reasonable" basis to leave employment. Moreover, claimant does not assert any argument that he did whatever was "necessary and reasonable in order to remain employed." Under the circumstances presented, we are satisfied that there is sufficient, credible evidence in the record to support the Board's finding that claimant voluntarily left work without good cause under N.J.S.A. 43:21-5(a). This court is not at liberty to substitute its own judgment for the agency's conclusion. Brady v. Bd. of Review, supra, 152 N.J. at 210.

Affirmed.

(continued)

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A-5468-04T2

February 28, 2006