MICHAEL MOREA v. BOARD OF REVIEW and STAPLES THE OFFICE SUPERSTORE EAST INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1878-08T21878-08T2

MICHAEL MOREA,

Appellant,

v.

BOARD OF REVIEW and STAPLES,

THE OFFICE SUPERSTORE EAST,

INC.,

Respondents.

__________________________________

 

Submitted October 20, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Board of Review, Department of Labor, Docket No. 191,943.

Herbert J. Tan, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent, Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, of counsel and on the brief).

Respondent, Staples, The Office Superstore East,

Inc., has not filed a brief.

PER CURIAM

Claimant Michael Morea appeals from a final decision of the Board of Review (Board) finding him disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) and liable for refund of benefits pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2.

In the latter part of 2006, Morea applied to Staples, The Office Superstore East, Inc. (Staples) for the position of general manager, but was hired instead as a full-time sales manager commencing December 4, 2006. His annual salary was $50,000 with a targeted bonus of $5,000. According to Tina Ullmann, a Staples' representative, at time of hire, Morea was advised that the sales manager position had varied hours of employment and that he would be working approximately fifty hours per week. He was also informed of company policy that he had to be employed for at least one year before he could be considered for a promotion to a higher title.

During the course of his employment, Morea's wife became ill. Because he had been employed for less than one year at the time, Morea was ineligible for a leave of absence under the Family Leave Act, N.J.S.A. 34:11B-1 to -16. Nevertheless, according to Ullmann, Staples agreed to assist Morea in scheduling his work hours so that he could be available to care for his wife. However, without consulting any further with management or Human Resources, or even requesting a change in his work schedule, Morea quit his employment with Staples effective April 17, 2007.

Although he previously had filed a wage and hour complaint and was eventually successful in receiving an award for unpaid overtime, Morea, by his own admission, did not quit work because of this dispute. Rather, according to Morea, he was told at time of hiring that he would be working only forty hours per week and that he would be considered in less than a year for a promotion to general manager, a position he applied for several times during the course of his employment. Also, contrary to Ullmann's account, Morea complained that Staples did not offer him any assistance with more flexible scheduling, and denied his requests for vacation time due to staffing problems at his location. After quitting Staples, Morea secured other employment with Selective Solutions, but thereafter again became unemployed.

Morea's February 24, 2008 application for unemployment compensation benefits was denied by the deputy claims examiner, who found him disqualified because he left work voluntarily without good cause attributable to the work. Also, on June 27, 2008, the Director of the Division of Unemployment Insurance issued to Morea a Request for Refund of $8,960 received as benefits. Morea appealed these dual determinations, which were affirmed by the Appeals Tribunal, concluding:

In assessing the claimant's reasons for leaving work, we conclude that the claimant failed to meet the burden of proof to demonstrate good cause. Although he was not satisfied with his working conditions, they were what he had agreed to at the time of hire. The claimant was told that the employer could not consider promotion until the employee was in his current position for at least one year and, in spite of that, he was offered an opportunity to discuss the matter further with the district manager.

The claimant could also have taken advantage of employer offerings which would have assisted him as to his personal responsibilities regarding his wife. As to his work schedule, it has been held that where long hours are customary in a particular industry, one who quits because of those hours leaves without good cause.

All in all the claimant has failed to demonstrate that the work was abnormal, intolerable or onerous, or that it affected his health so as to give him no course but to leave.

This determination was ultimately affirmed by the Board. This appeal follows.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). 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. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. 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, unsupported 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); Gloucester County Welfare Bd., supra, 93 N.J. at 391.

Applying these principles, we conclude that the Board's decisions denying claimant benefits and ordering a refund of benefits received are supported by substantial credible evidence in the record. 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 he left work for good cause attributable to the work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "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, "[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).]

Here, claimant left work simply for personal reasons, and out of personal dissatisfaction with the conditions of employment including hours of work, leave time, and advancement opportunities, all of which were explained to him and accepted by him at the time of hiring. Moreover, none of the complained-of conditions was so abnormal, severe, or oppressive to justify his quitting work under the circumstances. Indeed, as for adjusting his work schedule to accommodate his wife's illness, the record does not show that Morea ever made a request to Staples for a change in work hours, or that such a request would have been denied. On the contrary, Ullmann testified that Staples agreed to assist Morea in scheduling work so that he would be available to care for his wife. Consequently, his decision to quit is a purely personal one for which Staples bears no responsibility.

Finally, because Morea had been paid benefits that he was not entitled to receive, he is liable for a refund of $8,960 in benefits paid for the weeks ending March 1, 2008, through June 14, 2008, pursuant to N.J.S.A. 43:21-16(d). In Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997), we held that full repayment of benefits is required from anyone "who, for any reason, regardless of good faith, was not actually entitled to those benefits." Indeed, recovery of such benefits "furthers the purpose of the unemployment compensation laws" and preserves the Unemployment Trust Fund "for the payment of benefits to those individuals entitled to receive them." Ibid. (citations omitted). Moreover, "federal law requires that a state recover improperly paid unemployment compensation benefits[,]" id. at 675 (citing 42 U.S.C.A. 503(a)(9)), as does our own regulations. N.J.A.C. 12:17-14.1. In fact, the only restriction the Legislature has placed on recoupment is that the Division must seek a refund "before four years have elapsed from the time the benefits in question were paid." N.J.S.A. 43:21-16(d)(1). Here, the request for a refund was timely. Furthermore, Morea never requested a waiver of repayment pursuant to N.J.A.C. 12:17-14.2.

In sum, the Board's dual decisions rendered after a hearing that comported with due process, Malady v. Bd. of Review, 166 N.J. Super. 523, 528 (App. Div. 1979), are 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 determinations.

 
Affirmed.

(continued)

(continued)

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A-1878-08T2

November 6, 2009