FELICITA ARROYO v. BOARD OF REVIEW DEPARTMENT OF LABOR AND VALUE PLUS PHARMA, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0133-09T30133-09T3

FELICITA ARROYO,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR AND

VALUE PLUS PHARMA, INC.,

Respondents.

______________________________

 

Submitted June 8, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Board of Review, Department of Labor, Docket No. 217,012.

Felicita Arroyo, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Respondent Value Plus Pharma, Inc. has not filed a brief.

PER CURIAM

Claimant Felicita Arroyo appeals from a final decision of the Board of Review (Board) dismissing as untimely her challenge to an appeal tribunal's (tribunal) determination denying her claim for unemployment benefits. Following our review, we conclude the Board's dismissal of claimant's appeal was properly premised upon facts in the record and their determination was consonant with relevant statutory provisions. We also conclude that, had claimant's appeal been timely, the tribunal's finding that she left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a), disqualified her from receipt of unemployment benefits.

Claimant was employed as a customer service representative by Value Plus Pharma, Inc., from July 2008 to November 6, 2008. On three separate occasions, claimant asserted her manager loudly criticized her ability to organize displays in the presence of co-workers and customers. Specifically, she testified her manager yelled: "you can't get it through your thick head[,]" asked her "are you in space?" and rhetorically said "what are you, dumb?"

Claimant never informed the district manager or other supervisor of her manager's behavior. Following a shouting match on November 6, 2008, claimant became upset and "told [her manager] I couldn't take it and grabbed my possessions, told him I quit, and left."

Thereafter, claimant filed for unemployment compensation benefits. Her application was denied by a deputy claims examiner, who found she had "left work voluntarily without good cause attributable to such work[.]" N.J.S.A. 43:21-5(a). Claimant appealed. Following a telephonic hearing before the appeals examiner, the tribunal affirmed the decision of the deputy but modified the effective date of unemployment benefit disqualification. Claimant appealed to the Board, which dismissed the appeal as untimely.

In its decision, the Board stated "claimant [had] filed an appeal on June 2, 2009, from a decision of the [tribunal] mailed on May 15, 2009 . . . subsequent to the expiration of the statutory period of . . . ten days from the date of mailing," as provided in N.J.S.A. 43:21-6(c) and N.J.A.C. 12:20-4.1(a). Claimant asserts the dismissal of her appeal to the Board was arbitrary, as she had properly set forth a claim for benefits based upon her manager's harassment and verbal abuse, which constituted good cause for her to voluntarily leave work.

The scope of our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); 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 agency's determination carries a presumption of correctness. Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). "We are obliged to defer to the [agency] when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations omitted). Further, we accord substantial deference to an agency's interpretation of the statute it is charged with enforcing. Board of Educ. v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 31 (1996). Accordingly, we overturn an agency determination only if "'it is arbitrary, capricious or unreasonable or it is not unsupported by substantial credible evidence in the record as a whole.'" Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester County, supra, 93 N.J. at 391); Campbell, supra, 39 N.J. at 562.

Relying on N.J.S.A. 43:21-6(c), the Board dismissed claimant's appeal as untimely. The statute provides a tribunal's decision "shall be deemed to be the final decision of the board of review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated[.]"

Alternatively, late-filed appeals will be considered if a claimant establishes "good cause" for the late filing. Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992); N.J.A.C. 12:20-4.1(h). This is based on a policy that "strict adherence to limitation periods without regard to their underlying purposes disserves the goals of justice." Rivera, supra, 127 N.J. at 585 (summarizing the holding of White v. Violent Crimes Comp. Bd., 76 N.J. 368, 376 (1978)).

"The 'good cause' exception to time limitations on appellate filings imposed in unemployment benefit actions, [is] now codified at N.J.A.C. 12:20-4.1(h)[.]" Garzon v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004). The regulation provides:

A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:

1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

[N.J.A.C. 12:20-4.1(h).]

Here, claimant offers no explanation for the appeal, filed eight days beyond the limitations period. Claimant's failure to establish good cause for her tardy application results in the tribunal's determination to deny the request for benefits becoming a "final decision of the board of review." N.J.S.A. 43:21-6(c).

For completeness, we address the merits of claimant's position. We note that the purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). "The basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374.

The governing statute, N.J.S.A. 43:21-5(a), provides an individual is disqualified for unemployment benefits where the claimant has left work "voluntarily without good cause attributable to such work." Self v. Bd. of Review, 91 N.J. 453, 457 (1982). As used in the statute, "[g]ood cause means cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed[.]" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal quotation omitted). Elsewhere, we clarified:

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. . . . It is the employee's responsibility to do what is necessary and reasonable in order to remain employed."

[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal citations and quotations omitted).]

The tribunal found claimant failed to take necessary available action to inform the district manager of the conditions of employment, which she considered detrimental to her well-being or difficult to her continued employment. "The on-the-job reprimands administered to claimant by her supervisor, . . . while public and arguably improper and humiliating, were not so burdensome as to justify claimant's departure from the job." Gerber v. Bd. of Review, 313 N.J. Super. 37, 40 (App. Div. 1998).

The reasoned finding that claimant voluntarily resigned her employment due to her dissatisfaction with her manager, and the resultant conclusion she was not qualified to receive unemployment benefits, were supported by substantial credible evidence in the record. See Lourdes Med. Ctr., supra, 197 N.J. at 367-68; Campbell, supra, 39 N.J. at 562.

 
Affirmed.

(continued)

(continued)

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A-0133-09T3

July 13, 2010