JOHN LOPRESTI v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and XEROX CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4738-08T24738-08T2

JOHN LOPRESTI,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and XEROX CORPORATION,

Respondents.

________________________________________________________________

 

Submitted June 15, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from a Final Decision of

the Board of Review, Docket No.

206,752.

John LoPresti, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent Board of Review (Lewis

A. Scheindlin, Assistant Attorney

General, of counsel; Ellen A. Reichart,

Deputy Attorney General, on the brief).

Epstein, Becker & Green, attorneys for

respondent Xerox Corporation (Michael

D. Thompson, of counsel and on the

brief).

PER CURIAM

Appellant John LoPresti appeals from the final decision of the Board of Review (the Board) concluding that appellant is ineligible for unemployment benefits. We affirm.

These are the relevant facts. Appellant was employed by Xerox as an account associate from August 2006 to September 2008 when he voluntarily resigned, believing his employer subjected him to continuous harassment and a hostile work environment.

Appellant worked at the same position and location for Medco for ten years until his job was outsourced to Xerox in 2006. Appellant's work schedule was changed six times within the two year period he worked for Xerox. Specifically, appellant's initial work schedule was from 8:00 a.m. to 5:00 p.m. His schedule was changed in August 2006 to 6:30 a.m. to 5:00 p.m.; in November 2006, to 5:00 a.m. to 5:00 p.m.; in December 2007, to 5 a.m. to 3:30 p.m.; in February 2007, to 5:00 a.m. to 3:00 p.m.; in April 2008, to 6:00 a.m. to 3:00 p.m.; and in July 2008, to 6:30 a.m. to 3:30 p.m. Appellant did not resign when his schedule was initially changed because he wanted to "work this out and try to stay."

Appellant was also dissatisfied because his employer did not grant him his specific vacation request. He described Xerox's vacation policy:

We were instructed that we had to schedule our vacation a year in advance but it wasn't held in stone. We were able to change the vacation as long as it was within the guidelines provided by [supervisor] John Francis and the guideline was we were not allowed to have more than two people off at the same time.

Appellant signed up three weeks in advance for a vacation from June 2 to June 10. Francis, his supervisor, removed appellant's name from the vacation calendar for the requested week. Francis explained that appellant was needed to do the work of the other employee who was taking off that week.

Appellant discussed his workplace frustration with David Young, Francis's supervisor. Young stated that he was going to have appellant transferred; he did not say when or where, but he had the option of transferring to a location up to fifty miles away.

Appellant suffered from high blood pressure and missed five work days, but he did not produce medical documentation for the days he was ill. Xerox's absence policy allows employees to miss four work days per year due to illness; pay is reduced for any excess absences. Appellant was not paid for his fifth day of absence. Finally, Francis informed appellant that he was going to be put into the performance improvement plan (PIP), and that he needed to work the eight hours he missed without pay. The purpose of placing appellant in PIP was not to terminate him but to "improve on the process."

In response to being notified that he was being placed in the PIP program, on September 2, 2008, appellant submitted a letter of resignation. He cited a hostile and untenable work environment as the reasons for his resignation and noted that "the fact that I was told I had to make up those eight hours[] . . . was just the final straw . . . ."

Appellant did not discuss his frustration about being placed on PIP with Young or Xerox's human resource department (HR). According to Xerox, its HR has an open door policy that allows employees to discuss any workplace problems. Appellant was informed of this open door policy when he first began working for Xerox, but claimed he did not utilize it because he did not believe HR would help him.

Francis claimed he did not request that appellant work without pay to make up the time he missed. Company policy allows employees to make up unpaid missed work with paid hours of employment. Francis also claimed that he never told appellant that he was going to be transferred. Appellant was told that if "he's unhappy with the account he's in, we can find alternative accounts that would be more suitable for him."

Appellant filed a claim for unemployment compensation, which was upheld by the deputy claims examiner. The appeal tribunal reversed the decision of the deputy claims examiner and held that appellant was ineligible for unemployment benefits, N.J.S.A. 43:21-5(a), because his voluntary resignation was not for good cause. Appellant filed an appeal to the Board, and the Board affirmed the decision of the appeals tribunal. This appeal followed.

Appellant contends that his various workplace problems constituted good cause to voluntarily resign and he is eligible to receive unemployment benefits.

Our review of an agency decision is limited. Catholic Family & Cmty. Servs. V. State-Operated Sch. Dist., 412 N.J. Super. 426, 436 (App. Div. 2010) (citing In re Herrmann, 192 N.J. 19, 27 (2007)). As we have observed:

[w]e will only reverse a decision of an administrative agency if it is arbitrary, capricious, or unreasonable. [Brady v. Bd. Of Rev., 152 N.J. 197, 210 (1997).] We must defer to an agency's expertise and superior knowledge of a particular field. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We may not substitute our judgment for that of the agency even though we might well have reached a different conclusion. State v. Locurto, 157 N.J. 463, 471 (1999); Greenwood, supra, 127 N.J. at 513. If the original findings are supported by substantial credible evidence in the record as a whole, we must accept them. Brady, supra, 152 N.J. at 210.

[In re Van Orden, 383 N.J. Super. 410, 417-18 (App. Div. 2006) (quoting Outland v. Bd. Of Trs. of the Teachers' Pension & Annuity Fund, 326 N.J. Super. 395, 399-400 (App. Div. 1999)).]

N.J.S.A. 43:21-5(a) provides that an individual should 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 and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate[.]

"Good cause" is a reason "'sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed[.]'" Shuster v. Bd. of Review, Dept. of Labor, 396 N.J. Super. 240, 244 (App. Div. 2007) (quoting Doering v. Bd. Of Review, 203 N.J. Super. 241, 245-46 (App. Div. 1985)). The employee must leave because of "real, substantial and reasonable circumstances . . . attributable to the work." Id. at 244-45 (citing Fernandez v. Bd. Of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) (quoting Domenico v. Labor & Indus. Dep't of Review, 192 N.J. Super. 284, 288 (App. Div. 1983))). We employ a test of "'ordinary common sense and prudence' . . . to determine whether an employee's decision to leave work constitutes good cause." In re N.J.A.C. 12:17-9.6 ex. Rel. State Dep't of Labor, 395 N.J. Super. 394, 400 (App. Div. 2007) (quoting Brady, supra, 152 N.J. at 214). The burden of showing good cause is on the claimant. See Rudbart v. Bd. of Review, 339 N.J. Super. 118, 123 (App. Div. 2001); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964).

It is the employee's responsibility to do what is necessary and reasonable in order to remain employed. Domenico, supra, 192 N.J. Super. at 288. Mere dissatisfaction with working conditions is not sufficient to establish good cause for voluntary resignation. Ibid. On the other hand, causes which are abnormal, affect health or threaten physical violence to the employee constitute good cause. Compare ibid. (holding that appellant's reasonable fear of imminent physical harm constituted good cause for voluntary resignation), with Zielenski, supra, 85 N.J. Super. at 52 (holding that irregular work schedule is not good cause for voluntary resignation).

Appellant argues that his schedule changes, denial of promotions, denial of vacation requests, placement on PIP and threat of transfer constituted good cause to voluntarily resign. The appeals examiner held that appellant did not take all available steps to resolve his problems because he did not discuss his problems with HR. She also held that none of appellant's workplace grievances were sufficient to justify leaving work. The Board affirmed for the same reasons.

We decline to disturb the findings of the Board. The Board's determination was not arbitrary and capricious because none of appellant's reasons for leaving work were neither unusual in a work environment, nor did they affect his health. His reasons for leaving constituted dissatisfaction with his working environment. The denial of his requested vacation time was within his supervisor's discretion and was not intended to harass him. Also as his placement on PIP was intended to improve his job performance, not to terminate him, it did not amount to harassment or good cause to resign. Similarly, the changes in appellant's schedule did not give him good cause to resign. The Board had credible evidence to determine that appellant's grievances reflected only his personal dissatisfaction with the job and did not establish good cause to voluntarily resign.

The Board's finding was not arbitrary and capricious.

 
Affirmed.

(continued)

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A-4738-08T2

August 27, 2010