JUDY A. DONLIN v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6119-04T16119-04T1

JUDY A. DONLIN,

Petitioner-Appellant,

v.

BOARD OF REVIEW,

Respondent-Respondent.

__________________________________

 

Submitted January 30, 2006 - Decided February 21, 2006

Before Judges Cuff and Lintner.

On appeal from a Final Decision of the Board of Review, Department of Labor, 65,128.

Judy Donlin, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Accepting the findings and conclusions of the Appeal Tribunal, the Board of Review (Board) disqualified Judy Donlin from receiving unemployment compensation benefits, concluding that she was not entitled to benefits under N.J.S.A. 43:21-5(a). Donlin appeals and we affirm.

The following facts emerge from the hearing. Donlin was employed by Ulta Salon Cosmetics & Fragrance, Inc. (Ulta) as a merchandise manager until she resigned on December 23, 2004. Donlin's rate of pay was thirteen dollars per hour. Ulta sells cosmetics and personal products. On September 29, 2004, Donlin was injured at work causing her to be out of work for approximately one month. She returned to work on October 18 under doctor's restrictions that she not lift more than fifteen pounds nor participate in repetitive bending, standing, or sitting. Four days later she was out of work again because she could not take the thirty-five minute drive to work. On November 5, 2004, her doctor indicated that she should remain out of work until further notice.

Following a regimen of physical therapy three times per week, Donlin was able to return to work with no restrictions on November 29, 2004. She re-injured her back, however, while unloading a truck containing the lightest boxes of cosmetics when she attempted to lift a box filled with bottles of shampoo, which was not supposed to be there. She was out of work again for approximately one week. Her doctor permitted her to return on December 6 under a "zero pounds" lifting restriction.

Donlin sought to modify her duties but was told by Ulta that there was no modification in her job classification. Ulta offered Donlin three options: cashier, computer work, or customer service. According to Donlin, she refused because cashier and customer service required some lifting, while an administrative manager does the computer work. Donlin claims that she became depressed because she could not do her job. Although other employees assisted her by helping to lift items when required, her frustration grew.

On December 21, Donlin telephoned Anna Maria, an employee who was being trained to take over her job until she healed, at Anna Maria's home. Donlin did not think Anna Maria was getting things done. According to Donlin, Anna Maria got angry with her because she was trying to tell Anna Maria how to do the job.

On December 23, Donlin's supervisor, Deborah Markowitz, called Donlin into her office to tell her that Anna Maria had complained because Donlin had called her at home. Donlin testified that when Markowitz raised the issue about things not being done, she told Markowitz that she could not go against her restrictions. She claimed, however, that the "topper was when . . . [Markowitz] said that [she] could be brought up on harassment because [she] called Anna Maria at home." Donlin also testified that Markowitz told her that other managers were complaining because Donlin was snapping at people, which, according to Donlin, was untrue. Donlin claimed she told Markowitz that she could no longer do her job due to her restrictions and resigned.

Markowitz's version differed. Markowitz testified that Anna Maria complained because Donlin called her at home to "tell her off." Anna Maria also told Markowitz that she was speaking with another manager when Donlin approached and accused them of talking behind her back. When Markowitz discussed the incident with Donlin, Donlin responded, "she was just trying to get Anna Maria to move quicker and faster" and failed to see any problem with calling Anna Maria at home. Markowitz then told Donlin that other managers were having the same problems as Anna Maria. Donlin responded, "I'm not going to work where people hate me, that's it" and handed Markowitz her keys. According to Markowitz, had Donlin not resigned, work was available for her and that her job was not in jeopardy.

The appeals examiner found that, although there was no doubt from the medical evidence that Donlin was on restricted duty, there was no evidence that her employer failed to accommodate her work requirement. Accepting Markowitz's testimony, the examiner found:

The proximate cause of [Donlin] leaving work was because she was upset over an incident with a co-worker, had caused the co-worker concern by calling her at home and by the manager's speaking to her about her attitude and the complaints made by her co-workers.

He concluded that Donlin failed to demonstrate that she left work due to a health condition that adversely affected her work and therefore her leaving was voluntary without good cause attributed to work, thus disqualifying her from benefits in accordance with N.J.S.A. 43:21-5(a). As noted, the Board affirmed the decision. On appeal, Donlin essentially argues that she did not leave voluntarily, but because she was unable to perform due to her injuries and restrictions. We disagree.

Appellate courts have a limited role in reviewing decisions of an administrative agency. 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); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). 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, appeal dismissed, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982); City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 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 administrative agencies must be given great deference. State v. Johnson, 42 N.J. 146, 159 (1964).

Conversely, a reviewing court is not bound to uphold an agency determination unsupported by sufficient evidence. Id. at 161. 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. Henry, supra, 81 N.J. at 579-80; Marro v. Dep't of Civil Serv., 57 N.J. Super. 335, 346 (App. Div. 1959). The burden of proof to establish a right to unemployment benefits is upon the claimant. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51-52 (App. Div. 1964). We may not vacate an agency's decision simply because of doubts as to its wisdom or because the record may support more than one result, or even because we might come to a different conclusion if we were to make the original determination. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Thus, we are required to affirm the Board, even if we might have reached another decision had we heard the original evidence. Worthington v. Fauver, 88 N.J. 183, 204-05 (1982) (citing Bayshore Sewerage Co. v. Dep't of Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd o.b., 131 N.J. Super. 37 (App. Div. 1974).

Applying these principles, we are in 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) (quoting Zielenski, supra, 85 N.J. Super. at 52). 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, "'[m]ere 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) (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). Rather,

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

[Ibid. (citations omitted).]

We are satisfied that there was substantial credible evidence to establish that Donlin did not leave involuntarily as claimed, but instead voluntarily quit her job because she was upset with the accusations made by other employees. Therefore, her separation was neither involuntary nor with good cause attributable to work. The Board's decision finding claimant disqualified from unemployment benefits was "supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80; see also Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. v. State of N.J. Civil Serv. Comm'n, 93 N.J. 384, 391 (1983). We discern no basis to disturb the Board's determination.

Affirmed.

 

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A-6119-04T1

February 21, 2006