SANDRA H. ASTORGA v. BOARD OF REVIEW, DEPARTMENT OF LABOR and TRUSTEES OF THE STEVENS INSTITUTE OF TECHNOLOGY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2041-08T32041-08T3

SANDRA H. ASTORGA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and TRUSTEES OF THE

STEVENS INSTITUTE OF

TECHNOLOGY,

Respondents.

____________________________________________________

 

Submitted October 21, 2009 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Board of Review, Department of Labor, Docket No. 197,149.

Sandra H. Astorga, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Vedder Price, P.C., attorneys for respondent Trustees of the Stevens Institute of Technology (Charles S. Caranicas, on the brief).

PER CURIAM

In this appeal, we review a final agency decision which held Sandra Astorga (appellant) was disqualified from receiving unemployment benefits. The record amply demonstrates that appellant resigned to care for a sick relative, a circumstance the Board of Review correctly determined to be a disqualifying event. We, therefore, affirm.

New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.4, "protects not only workers who are involuntarily unemployed -- those who are laid-off or terminated from their jobs by their employers -- but also those who voluntarily quit their jobs for good cause attributable to their work." Utley v. Bd. of Review, 194 N.J. 534, 543-44 (2008). Here, appellant was not terminated but instead resigned, thus posing the question whether she should be disqualified from receiving benefits because, as argued by her employer, appellant "left work voluntarily without good cause attributable to such work. . . ." N.J.S.A. 43:21-5(a).

The employee has the burden of proving that the voluntary quit of the workplace was with good cause attributable to the work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). We have observed that "while the statute does not define 'good cause,' our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (citations omitted). In defining those circumstances which meet that requirement, we have said:

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 employ-ment 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.

[Id. at 288 (citations omitted).]

In essence, in determining whether the employee voluntarily left employment for good cause attributable to the work, the employee must show that he or she did all that was "necessary and reasonable in order to remain employed." Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoted with approval in Utley, supra, 194 N.J. at 549, and Brady v. Bd. of Review, 152 N.J. 197, 214 (1997)).

Clearly, such a test is fact-sensitive. Utley, supra, 194 N.J. at 550. As a result, when its findings of fact are challenged on appeal, we will defer to the agency so long as there is credible evidence in the record to support them. Brady, supra, 152 N.J. at 210.

Here, the record reveals that appellant was employed as an accountant from August 2007 until July 17, 2008. The employer's office hours started at 8:30 a.m. and ended at 4:30 p.m., but appellant had an agreement with the employer that permitted her to work from 7:30 a.m. to 3:30 p.m. The employer also required all accounting personnel, which included appellant, to work extra hours during the employer's yearly audit, which ran from April through the end of summer. As explained, the employer required the presence of all its accountants during these extra hours so those employees would all be available to interact with each other. Appellant, in fact, worked these extra hours during the 2007 audit. Claiming she could not work beyond 5:30 p.m. during the 2008 audit because of a sick uncle, appellant resigned.

Appellant filed a claim for unemployment benefits a few days after her resignation. An initial hearing resulted in a determination that appellant was disqualified from receiving benefits. She appealed. Viewing the additional hours during the 2008 audit to be a change in employment conditions, the Appeal Tribunal reversed and held appellant was entitled to unemployment benefits.

The employer appealed to the Board of Review, which concluded that the extra audit hours was not a change in conditions but, in fact, consistent with the terms of employment, as demonstrated by the fact that appellant worked extra hours during the prior year's audit. The Board of Review instead focused on the fact that appellant resigned because of a claimed need to care for a relative and concluded that such a circumstance did not render appellant's resignation involuntary.

The role of an appellate court in such a matter is not to substitute its judgment for that of the agency, but to defer to the agency's findings when supported by credible evidence and the agency's judgment when neither arbitrary, capricious nor unreasonable. Brady, supra, 152 N.J. at 210; Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001). The record amply supports the Board of Review's findings that the employer's requirement that appellant work extra hours during the 2008 audit was consistent with the existing terms of employment and, therefore, did not constitute a change in conditions that might permit an award of unemployment benefits. See Utley, supra, 194 N.J. at 548-50. Moreover, the Board of Review correctly recognized that appellant's assertion that she could not stay at the workplace beyond 5:30 p.m. during the audit was based on her need to care for a sick relative. A separation from employment so that the employee can be available to care for a relative is properly viewed as a voluntary resignation disqualifying the employee from unemployment benefits. See N.J.A.C. 12:17-9.1(e).

 
Affirmed.

(continued)

(continued)

6

A-2041-08T3

October 29, 2009