GEORGE CONDOS v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND AMERICAN BANK NOTE HOLOGRAPHICS, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1112-09T31112-09T3

GEORGE CONDOS,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR

AND AMERICAN BANK NOTE HOLOGRAPHICS, INC.,

Respondents.

__________________________________________

Argued June 2, 2010 - Decided July 28, 2010

Before Judges Lihotz and Ashrafi.

On appeal from the Board of Review, Department of Labor, Docket No. 218,948.

Randy T. Pearce argued the cause for appellant (Pearce Law, LLC, attorneys; Mr. Pearce and Jill Marie Horton-Miller, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Brady Montalbano Connaughton, Deputy Attorney General, on the statement in lieu of brief).

Jayne A. Risk argued the cause for respondent JDS Uniphase Corporation (DLA Piper, LLP, attorneys; Nicholas T. Solosky, of counsel; Mr. Brooks and Ms. Risk, on the brief).

PER CURIAM

Claimant George Condos appeals from a final decision of the Board of Review (Board), affirming an appeal tribunal's (tribunal) determination that he was disqualified for unemployment compensation benefits because he left work "voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). The tribunal also required claimant to refund all benefits previously paid. N.J.S.A. 43:21-16(d)(1). Defendant argues he satisfactorily showed evidence of good cause for leaving his employment, which was attributable to the work. Following our examination of the arguments presented on appeal, in light of the record and the applicable law, we conclude the Board's final decision was properly premised upon facts in the record and is consonant with relevant statutory provisions. Accordingly, we affirm.

Claimant began working for American Bank Note Holographics, Incorporated (ABNH) as a temporary employee on February 3, 1999. Shortly thereafter, he and ABNH entered into a written agreement to employ him full-time as the corporate controller. In February 2008, ABNH was acquired by JDS Uniphase Corporation (JDSU). JDSU offered claimant a compensation package that included a $137,000 base salary, incentive bonuses of up to fifteen percent of his base salary, stock options, the title to his company car, health benefits, and a $30,000 retention bonus if he remained employed one year following the acquisition. Claimant accepted the offer and remained employed by JDSU until he resigned on June 27, 2008.

Claimant testified he worked an average of fifty hours per week at ABNH. After the merger, three of the five original employees left his department and were not replaced; yet, claimant remained responsible for completion of their work assignments. Claimant explained his workload doubled to an average of 70-80 hours per week in order "to complete all of the tasks that were transferred to him." Over the following three months, conflict developed with his immediate supervisor, Larry Sweet. Claimant told Sweet his workload was "impossible" to accomplish, he was exhausted and needed time off. He also had been working at home on Wednesdays, and was told that was not acceptable.

On June 17, 2008, claimant participated in a performance review. During that conference, he identified several issues implicating Sweet. These included that claimant had not received proper training and work-related goals, that JDSU paid too much for ABNH and when projected revenue decreased by fifty percent, Sweet, along with other co-workers, harassed and belittled him, that Sweet "badgered" him about his salary and liquidation of his JDSU stock options, and that Sweet suggested claimant had inflated his rating on his self-evaluation form, then admitted he had not read what claimant submitted, and stated claimant was not getting a raise. Claimant also learned that his former ABNH supervisor, Mark Bonny, who also worked for JDSU, had been complaining about him. He felt Sweet was "attacking him."

While driving home that evening, claimant stated "he felt like he was having a stroke." Later, he sent Sweet an email, resigning as of June 27, 2008, because "[he] had reached [his] limit." On the following work day, after he went to lunch, claimant was "locked out" of the building, and told he could leave immediately. Taking all of these issues together, claimant suggests it was impossible to accomplish his duties and continue working.

Later, Bonny asked him "what it would take to get him to stay," but claimant said he "had had enough." Bonny again asked claimant to stay with the company until August 3, 2008, but he declined.

Claimant filed for unemployment benefits and was initially determined to be eligible. JDSU appealed. In a telephonic hearing, an appeals examiner considered testimony from claimant and Susan Herbert, JDSU's Human Resources Business Partner. Claimant expressed the reasons for his departure included the demand of too many hours of work and his difficulties with Sweet. Claimant admitted he had not presented his concerns or discussed his conflicts with Sweet to anyone of higher authority or the Human Resources Department, suggesting organizational distance impeded his ability to seek advice from his former supervisor, Bonny.

Claimant also identified, as a reason to leave JDSU, the discovery of illnesses attributable to stress. Claimant delineated he suffered from arthritis in his limbs, bursitis in his shoulder, high blood pressure, insomnia, high cholesterol, and diabetes -- all attributed to the stress of the job. Claimant had not sought time off to address any medical conditions and offered no verifying documentation from his treating physicians. He acknowledged any medical treatments did not commence until a month following his resignation.

On June 22, 2009, the tribunal reversed the decision of the deputy, finding claimant voluntarily terminated his employment for personal reasons, not as a result of causes attributable to the work. The tribunal remanded the matter to the deputy to determine whether claimant was required to refund the benefits previously paid. A request for refund was subsequently issued seeking repayment of $15,184. Claimant appealed to the Board, which affirmed the determination of the tribunal. On appeal, claimant argues he was forced to depart from JDSU because he was "the target of emotional violence."

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 Board 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 a determination only if "'it is arbitrary, capricious or unreasonable or it is not supported 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.

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).

Persons who leave work for good, but personal, causes are not eligible for unemployment benefits. Brady, supra, 152 N.J. at 213.

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).]

Any examination of the basis for an employee's departure from employment is fact sensitive. When an individual "leaves work for health or medical reasons, medical certification shall be required to support a finding of good cause attributable to work." N.J.A.C. 12:17-9.3(d). To qualify for unemployment benefits, the physical or mental condition or state of health must have a work-connected origin or be aggravated by working conditions "provided there was no other suitable work available which the individual could have performed within the limits of the disability[.]" N.J.A.C. 12:17-9.3(b).

Claimant argues this matter is "almost identical" to those set forth in Condo v. Bd. of Review, 158 N.J. Super. 172 (App. Div. 1978). In Condo, an employee had been threatened with physical violence by one of his co-workers. Id. at 173. We reversed a denial of eligibility for unemployment benefits holding "threats of physical violence directed to an employee from which he [or she] may reasonably conclude that his [or her] personal safety is endangered thereby inculcating a genuine fear in the employee is an abnormal working condition" constituting "good cause for that employee to voluntarily leave his [or her] employment." Id. at 175.

Claimant asserts that while he was not "physically attacked," he "was threatened and received the physical manifestation of [] threats." We disagree and draw no parallels between this matter and the facts reviewed in Condo.

Here, claimant's safety was not at stake; rather, he left work out of personal dissatisfaction with the conditions of employment including hours of work, denial of his request to work from home and interpersonal conflict with Sweet. It is reasonable and easily understandable that difficulties arose in the first few months of a company merger. As the corporate controller, claimant knew the need to integrate the financial data of the two corporations and accepted that challenge when he agreed to the offer of employment from JDSU. Moreover, none of the complained-of conditions was so abnormal, severe, or oppressive to justify his quitting work. See Gerber v. Bd. of Review, 313 N.J. Super. 37, 40 (App. Div. 1998) (holding that criticism from supervisors, although arguably improper and humiliating, was not sufficient to support good cause for severing employment).

Further, his claims of medical necessity are unsupported. Claimant neither alerted the Human Resources Department that he was having health problems nor sought medical care until one month following his resignation. He provided no documentary proof and his oral recitation of ailments at the hearing is insufficient to satisfy N.J.A.C. 12:17-9.3(d). Therefore, the allegations that claimant suffered physical manifestations from harassment, satisfying good cause to leave his employment, were properly disregarded.

Once a person has been disqualified to receive unemployment benefits, the statute requires repayment of any benefits received. N.J.S.A. 43:21-16(d)(1). Recoupment of "unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits[,]" protects the public and maintains a fund for those adversely affected by unemployment, not those who voluntarily choose to leave the workforce. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997). "The public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient[.]" Ibid. "[F]ederal law requires that a state recover improperly paid unemployment compensation benefits[,]" id. at 675; see 42 U.S.C.A. 503(a)(9), as do our own regulations. N.J.A.C. 12:17-14.1.

We conclude the Board's decisions denying claimant benefits and ordering a refund of benefits received were properly premised on substantial credible evidence in the record and its determinations were consonant with relevant statutory provisions. Accordingly, they will not be disturbed.

 
Affirmed.

In February 2008, JDS Uniphase Corporation acquired American Bank Note Holographics, Inc.

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