THERESA A. HUDZINA v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5433-06T15433-06T1

THERESA A. HUDZINA,

Appellant,

vs.

BOARD OF REVIEW, ACCOUNTEMPS,

and BARNES & NOBLE COLLEGE

BOOKSELLERS, INC.,

Respondents.

_________________________________

 

Submitted May 14, 2008 - Decided July 1, 2008

Before Judges Sapp-Peterson and Newman.

On appeal from the Board of Review, Department of Labor, Docket No. 122,162.

Theresa A. Hudzina, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Theresa A. Hudzina, appeals from the May 11, 2007 decision by the Board of Review (Board) finding that she was disqualified for unemployment benefits under N.J.S.A. 43:21-5(a). We affirm.

Hudzina worked as a temporary employee for Accountemps, an employment agency. She was placed in a temporary assignment with BNCB Management Corporation (BNCB) in March 2006. At the time of her placement, Hudzina was advised by Accountemps that the position could be converted into permanent employment at a $45,000 annual salary. From the outset, she complained about her working conditions, including (1) no permanently assigned desk, (2) dust and debris on desks, (3) dirty furniture, and (4) lack of training and inadequate supplies. Hudzina agreed to continue in the position at that time because there were no other temporary positions available.

Six weeks into her employment, Hudzina was in fact offered a permanent position, but at $43,000. Hudzina extended a counter-offer of $48,000, which BNCB did not accept. She continued in the temporary assignment and, on June 19, 2006, she was once again offered a permanent position at the $43,000 figure, which she verbally accepted. A day later, she left her employment after objecting to how management confronted her about the company's policy on sneakers. According to Hudzina, she felt that she was being treated like a child because the Human Resources (HR) director addressed the issue with her in an authoritative, degrading and unnecessary manner after she had previously addressed the issue with Hudzina earlier in the day and also after claimant's manager had addressed the issue at the HR director's request. Hudzina advised the HR director, "I'm sorry. I made a mistake. I can't work for a company like this basically who has management in place that do not know how to manage people."

Hudzina applied for unemployment compensation benefits. The deputy director of the Division of Unemployment and Disability Insurance determined that Hudzina was disqualified for benefits from June 18, 2006, pursuant to N.J.S.A. 43:21-5(a), because she left work voluntarily without good cause attributable to work. N.J.S.A. 43:21-5(a). The Appeal Tribunal affirmed that determination. Hudzina appealed to the Board of Review, which remanded the matter for additional testimony "regarding the reason for [Hudzina's] separation from employment from both employers."

Upon remand, a second hearing was held before the Appeal Tribunal. At the conclusion of this hearing, the Appeal Tribunal found,

The claimant, in this case, does not have good cause for leaving work or refusing suitable work.

First of all, the claimant[']s dissatisfaction with the physical condition of the workplace is one that could easily be remedied. The situation was noted when the claimant first started working in March, yet the claimant continued to work despite those issues.

Secondly, the situation regarding salary requirements does not satisfy the "good cause" requirement. The claimant, as of 3/20/06, was earning $18.00 per hour as a temp. That translates into $37,400 per year. The offer of $43,000 with benefits was $6,000 more than what the claimant was making. While the Agency told the claimant the job with employer #2 paid $45,000.00 plus benefits, the salary was negotiable. There was no obligation on the part of employer #2 to pay the sum of $45,000. In any event, there was no breach of contract if the terms of agreement did not result in a meeting of the minds. Even though an offer was made by employer #2, the temporary assignment had not ended. The claimant had quit prior to the acceptance of the agreement.

Thirdly, the sneaker incident is not viewed by this tribunal as intended to be demeaning or punitive. The employer was merely defining corporate policy.

Thus, it is considered that the claimant voluntarily quit her job with employer #1 without good cause. In addition, she refused suitable work without good cause with employer #2, however, the issue is academic in light of the disqualification period imposed by the voluntary quit.

The claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 06/18/06 in accordance with N.J.S.A. 43:21-5(a).

On appeal before the Board, the Appeal Tribunal's determination was upheld. The ensuing appeal followed.

On appeal, Hudzina claims:

THE APPELLANT'S DECISION TO LEAVE A TEMPORARY AGENCY'S TEMP TO PERM ASSIGNMENT DUE TO THE POTENTIAL EMPLOYER'S FALSE, AND MISLEADING HIRING INFORMATION; COUPLED WITH THE POTENTIAL EMPLOYER'S DEMEANING, IF NOT HAR[]ASSING BEHAVIOR; LACK OF TRAINING AND WORK EQUIPMENT; [DETERIORATING] DEPARTMENTAL MORALE AND HIGH TURNOVER RATE, CONSTITUTES GOOD CAUSE FOR LEAVING WORK, AND THEREFORE THE APPE[]LLANT SHOULD NOT HAVE BEEN DISQUALIFIED FROM UNEMPLOYMENT BENEFITS.

A claimant seeking unemployment compensation benefits bears the burden of establishing entitlement to an award of benefits. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964). "[A] claimant shall be disqualified from receiving unemployment compensation benefits '[f]or 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[.]'" Brady v. Bd. of Review, 152 N.J. 197, 213 (1997) (quoting N.J.S.A. 43:21-5(a)) (alteration in original omitted). In applying N.J.S.A. 43:21-5(a), a court must distinguish between a voluntary quit with good cause attributable to the work and, on the other hand, a voluntary quit without good cause attributable to the work. Id. at 213-14. Good cause is "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b); see also Zielenski, supra, 85 N.J. Super. at 52 (explaining good cause is "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.") (citation omitted) (internal quotation marks omitted). In Domenico v. Bd. of Review, we set forth the factors to be considered in determining the existence of good cause in a given matter:

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.... [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.

[192 N.J. Super. 284, 288 (App. Div. 1983) (citations omitted) (internal quotation marks omitted).]

Hudzina claims that the HR director's discussion with her about BNCB's policy prohibiting the wearing of sneakers was conveyed in an authoritative, degrading, and unnecessary manner, prompting her to say, "I'm sorry. I made a mistake. I can't work for a company like this basically who has management in place that do not know how to manage people."

Our role in reviewing the decision of an administrative agency is limited. In re Musick, 143 N.J. 206, 216 (1996); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable, that it lacked fair support in the evidence, or that it violated legislative policies. In re Taylor, 158 N.J. 644, 657-58 (1999); Brady, supra, 152 N.J. at 210-11. Musick, supra, 143 N.J. at 216; Henry v. Rahway State Prison, 81 N.J. 571, 579-80(1980); Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions by administrative agencies carry with them a strong presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

In the present case, the record fully supports the Board's decision. Hudzina's dissatisfaction with how management addressed the sneakers policy and the number of times she was confronted about the policy on June 20 does not evidence working conditions that were so compelling as to give her no choice but to leave the employment. N.J.A.C. 12:17-9.1(b).

Hudzina's remaining arguments that the working conditions were intolerable and her contention that BNCB reneged on its agreement to pay her a $45,000 annual salary are equally unavailing. Hudzina testified before the Appeal Tribunal that after she had been on the job for six weeks, she decided to continue the temporary employment because she "like[d] the work [she] was doing[,]" "liked [her] manager" and "wanted to work." Similarly, she also acknowledged that BNCB asked whether she was willing to negotiate her salary requirements and that she responded, "yes I am[,]" and Hudzina ultimately accepted the $43,000 annual salary offer, albeit verbally. Consequently, the claim that she had good cause to leave her employment because of working conditions or salary differences is without merit.

Affirmed.

(continued)

(continued)

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A-5433-06T1

July 1, 2008