JOSEPH A. DiLEONARDO v. BOARD OF REVIEW DEPARTMENT OF LABOR

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2004-09T3

JOSEPH A. DiLEONARDO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and McKESSON AUTOMATED

HEALTHCARE, INC.,

Respondents.

_____________________________________________________

October 18, 2010

 

Argued October 5, 2010 - Decided

Before Judges Graves and Messano.

On appeal from a Final Decision of the

Board of Review, Department of Labor,

Docket No. 235,329.

Joseph A. DiLeonardo, appellant, argued the

cause pro se.

 

Alan C. Stephens argued the cause for

respondent Board of Review (Paula T. Dow,

Attorney General, attorney; Lewis A.

Scheindlin, of counsel; Mr. Stephens,

on the brief).

 

Respondent McKesson Automated Healthcare,

Inc. has not filed a brief.

 

PER CURIAM

Joseph A. DiLeonardo (DiLeonardo), formerly an employee of McKesson Automated Healthcare, Inc. (McKesson), appeals from a final decision of the Board of Review (the Board), which affirmed a decision of the Appeal Tribunal. The Board concluded that DiLeonardo was disqualified for benefits under the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -71, because he left work voluntarily without good cause attributable to such work. N.J.S.A. 43:21-5(a). We affirm.

The relevant facts pertaining to DiLeonardo's employment were developed during the Appeal Tribunal hearing on July 1, 2009. DiLeonardo testified that he was employed by McKesson as a salesperson from September 2003 to May 8, 2009, and that McKesson "sold robotics products to hospitals." He further testified that on January 27, 2009, his immediate supervisor told him he was being placed on a ninety-day performance plan because "the business wasn't coming in," and the company was not "happy with [his] sales to date." According to DiLeonardo, he was given the option to either participate in the performance plan or "elect to have six weeks to find another job within McKesson."

Approximately two weeks later, on February 9, 2009, DiLeonardo submitted a letter of resignation. When asked why he resigned, DiLeonardo said he was told "people do not succeed in the performance program" and he "wanted to protect [his] record in the event that [he] wanted to find another job within McKesson." In addition, DiLeonardo testified as follows:1

EXAMINER: All right so they . . . put you on performance because they were not happy with your sales to date right?

 

CLAIMANT: Right.

 

EXAMINER: And that was back in January you said you sat down and had a discussion right?

 

CLAIMANT: Yes.

 

EXAMINER: Okay and was it during that same discussion that you offered to resign?

 

CLAIMANT: No I had a [follow-up] discussion with the Vice President his name is Greg King and I discussed with him the option of staying [throughout] the fiscal year and leaving on May 8th.

 

EXAMINER: Okay let me ask you a question if you didn't . . . give them your resignation at that time would they have definitely discharged you yes or no?

 

CLAIMANT: I think they would have yes.

 

EXAMINER: Did anyone ever tell you [they] were going to discharge you?

 

CLAIMANT: Well they told me that people do not succeed in the performance program. Flat out he told me that my boss Dave Didomenico. And you know ---

 

EXAMINER: Okay how long do they give in the performance program?

 

CLAIMANT: It would have been a 90 day performance program. At 60 days they would review it up [to] 90 days.

 

EXAMINER: Okay all right now you're told people do not succeed?

 

CLAIMANT: That's what they told me.

 

EXAMINER: All right but they never told you they . . . were going to fire you?

 

CLAIMANT: I think that was you know obvious.

 

In a decision mailed on July 2, 2009, the Appeal Tribunal denied DiLeonardo's claim for unemployment benefits. The Appeal Tribunal stated:

During the month of 1/2009, the claimant met with his immediate supervisor to discuss his sales performance. The employer was not happy with the claimant's sales performance. The claimant was given two options during the meeting. Either the claimant would be put on a ninety (90) [day] performance plan, or he could resign which would leave him eligible for future employment with the company. The claimant was never told that he would be discharged. The claimant felt that he would not be successful in the plan and would have been discharged. The claimant chose to resign, effective 5/8/09.

 

. . . .

 

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. . . .

In this matter, the claimant voluntarily chose to resign his job because he believed that his discharge was imminent. As there is insufficient evidence to support the claimant's allegation, the claimant has not established good cause for leaving attributable to work and is disqualified for benefits as of 5/3/09 under N.J.S.A. 43:21-5(a).

 

DiLeonardo appealed to the Board, which affirmed the decision of the Appeal Tribunal on October 13, 2009. On this appeal, defendant argues that the Board's decision should be reversed because he "was coerced into resigning" and "resigned under undeniable duress with good cause." We cannot agree.

The scope of our review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). Unless the agency's decision "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

The Board found that DiLeonardo was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a), which provides that a claimant may not receive benefits if he or she "has left work voluntarily without good cause attributable to such work." Although the statute does not define "good cause," "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) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). In addition, the Court has stated:

The test of ordinary common sense and prudence must be utilized to determine whether an employee's decision to leave work constitutes good cause. Such cause must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. A claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed.

 

[Brady, supra, 152 N.J. at 214 (internal quotation marks and citations omitted).]

 

In the present matter, DiLeonardo failed to establish that his subjective fear of an imminent discharge was "'based upon definitive objective facts.'" Id. at 215 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993)); see also Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) ("Mere speculation about job stability is insufficient to establish good cause."). Consequently, the Board's decision was neither arbitrary, capricious, nor unreasonable.

Moreover, N.J.A.C. 12:17-9.5 provides "guidance as to how far off termination must be to be 'imminent.'" Brady, supra, 152 N.J. at 218. That regulation provides:

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days.

 

Here, DiLeonardo was never notified that he would be discharged at any specific time. Furthermore, if he had participated in the performance plan, which lasted for ninety days, his performance would have been reviewed after sixty days.2 Under these circumstances, we find sufficient credible evidence in the record to support the Board's decision.

Affirmed.

1 "Examiner" refers to the Appeals Examiner and "Claimant" refers to Joseph DiLeonardo.

2 DiLeonardo testified that he "was at 132% of [his] quota" by March 31, 2009, which was the end of the fiscal year.