MARY K. STANCHECK v. BOARD OF REVIEW and SECURALL MONITORING CORPORATION

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5933-07T35933-07T3

MARY K. STANCHECK,

Appellant,

v.

BOARD OF REVIEW and

SECURALL MONITORING

CORPORATION,

Respondents.

________________________________________________________________

 

Argued April 22, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 180,911.

Tina Velantzas-Austin argued the cause for appellant.

Brady Montalbano Connaughton, Deputy Attorney General, argued the cause for respondent Board of Review (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Connaughton, on the brief).

Respondent Securall Monitoring Corporation has not filed a brief.

PER CURIAM

Mary K. Stancheck appeals from a July 3, 2008 decision of the Board of Review (Board) that affirmed the Appeal Tribunal's conclusion that Stancheck was disqualified for unemployment compensation benefits because she left work voluntarily without good cause attributable to the employment. We affirm.

I.

Stancheck was employed as an operations manager for Securall Monitoring Corporation (Securall) from October 1988 through February 16, 2008. In November 2007, Stancheck initiated a discussion with the owner of Securall, Louis Voight, about problems she was having with a male co-worker, who was nineteen years her junior. During a telephonic hearing before a deputy claims examiner on March 12, 2008, Stancheck testified that during the November 2007 discussion, Voight told her he had been planning to lay her off after the holidays and consequently there was no need for him to address her problems with the co-worker. She testified that Voight later asked her to stay a few extra weeks to complete some assignments, and she agreed to do so. After another extension, her last day of work was February 16, 2008. Stancheck insisted that the only reason she left her employment was because Voight had terminated her.

At the March 12, 2008 hearing, Voight denied that he terminated Stancheck, and instead asserted that Stancheck had quit because the commute from her home in Plainfield to Securall's office in Brick had become too onerous. When asked by the deputy whether Stancheck's job would have been in jeopardy from either layoff or discharge had she not voluntarily left, Voight answered "no." Voight reiterated that Stancheck was no longer in his employ only because she resigned due to the lengthy and expensive commute.

The deputy pursued the commuting issue by asking Stancheck whether she ever mentioned any problems with the commute during her November 2007 meeting with Voight. Stancheck never gave a direct answer. Instead, she merely responded that although she did not like the drive, she had been living in Plainfield for eight years and enduring the lengthy drive, and had no reason to resign her job with Securall because she enjoyed the work and it paid well.

On March 14, 2008, the deputy claims examiner found Stancheck eligible for benefits, without disqualification, effective February 24, 2008. After Securall appealed the deputy's determination, an Appeal Tribunal conducted a telephonic hearing during which Stancheck again testified that she had been laid off and Voight again testified that she had quit. The Appeal Tribunal reversed the deputy's determination, and held Stancheck was disqualified for benefits because she left work voluntarily without good cause attributable to her employment. The Appeal Tribunal reasoned:

The claimant's separation resulted when she failed to report for work on 2/16/08. The claimant's contention that she was laid off is not considered credible since continuing work was available. The claimant initiated her separation when she confronted the owner regarding her issues with a coworker. She continued working at least three months subsequent to her complaint and amended her separation date until February 2008. The claimant's leaving of the work because she had issues with a coworker is not considered cause sufficient to justify leaving the ranks of the employed to join the ranks of the unemployed.

On July 3, 2008, the Board affirmed the Appeal Tribunal's decision.

On appeal, Stancheck asserts that the findings of fact made by the Appeal Tribunal are arbitrary and capricious, unsupported by the record, and are therefore not entitled to our deference.

II.

The relevant portion of the New Jersey Unemployment Compensation Law provides that an individual shall be disqualified for 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 . . . ." N.J.S.A. 43:21-5(a) (emphasis added).

We review Stancheck's contentions in accordance with our standard of review. The Board's determination that Stancheck was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 585, 588 (App. Div. 1974).

An appellate court "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." Petition of County of Essex, 299 N.J. Super. 577, 591-92 (App. Div), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "'In reviewing the factual findings made in an unemployment compensation proceeding, the 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, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, if the record contains sufficient credible competent evidence to support the agency's conclusions, then we must uphold them. Clowes v. Terminix Int'l., Inc. 109 N.J. 575, 587 (1988).

Moreover, because we, unlike the Appeal Tribunal, have no opportunity to hear the witnesses and evaluate their demeanor, we are not in a position to evaluate the witnesses' credibility and determine whose testimony is worthy of belief. For that reason, we are obliged to "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "We read the record, not to balance the persuasiveness of the evidence on one side as against the other, but in order to determine whether a reasonable mind might accept the evidence as adequate to support the conclusion." Renan Realty Corp. v. N.J. Dep't of Cmty. Affairs, 182 N.J. Super. 415, 421 (App. Div. 1981). Where such determination "is reasonably made, it is conclusive on appeal." Ibid.

Here, the Appeal Tribunal was tasked with choosing between Voight's claim -- that he had no reason to lay Stancheck off, was satisfied with her work, had a continuing need for her services and was told by Stancheck that she was resigning because of the commute -- and Stancheck's assertion that she had accepted the commute for eight years, liked her job, was earning a good wage, had no reason to quit, and only left because Voight laid her off. We have been presented with no meritorious basis upon which to disturb the credibility determination the Appeal Tribunal made in Voight's favor.

So viewed, we conclude that the record here contains sufficient credible evidence to support the Board's determination that Stancheck resigned and was not, as she claimed, laid off. Moreover, the record does not support her contention that Voight's testimony was not worthy of belief because his explanation of why she quit was markedly different on each of the two occasions he testified. Before the deputy, and again before the Appeal Tribunal, Voight asserted that Stancheck resigned due to her lengthy commute.

 
Affirmed.

(continued)

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A-5933-07T3

May 11, 2009