RAUL I. PEREZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and NEW YORK FORWARDING SERVICES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5659-08T35659-08T3

RAUL I. PEREZ,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and NEW YORK

FORWARDING SERVICES, INC.,

Respondents.

_______________________________________

 

Submitted April 19, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 214,300.

Raul I. Perez, appellant pro se.

Paul T. Dow, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent New York Forwarding Services, Inc., has not filed a brief.

PER CURIAM

Raul I. Perez (Perez) appeals from a final determination of the Board of Review, which found that he was disqualified from receiving unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because he left his job voluntarily without good cause attributable to the work. We affirm.

The following facts are pertinent to our decision. Beginning in October 1, 2007, Perez was employed by New York Forwarding Services, Inc. (NYFS). He resigned his position with the company on October 31, 2008, and filed a claim for unemployment benefits, effective November 2, 2008. On December 24, 2008, the Deputy Director of the Division of Unemployment and Disability Insurance mailed a determination to Perez, informing him that he was disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(a).

Perez sought review of the Deputy Director's determination by the Appeal Tribunal, which conducted a hearing in the matter on March 18, 2009. Perez testified that he worked in NYFS's accounting department and resigned because he and management "had been having differences in" certain areas. Perez said that he believed that he was being "systematically" removed from his position because his job duties were being delegated to other workers.

Perez was asked if management had given him an explanation for the reassignment of his job duties to others. Perez said that "they were shifting within the company." He also said that Ahmed Singer (Singer), the company's owner and president, informed him that the company's payroll budget had to be reduced. Perez acknowledged, however, that he was not told that he was going to be laid off at any particular time.

Perez additionally testified that on October 23, 2008, Singer called him into a meeting with twelve other employees of the company. Perez said that the objective of the meeting was "to badger" him. At the meeting, Singer reviewed "things" that Perez had done wrong. Perez stated that he was embarrassed by the incident and told Singer that, if he needed to say something to him in the future, he should do so in private.

Perez further testified that, after that meeting, he worked on closing the company's accounts for the fiscal year. He stated that, in twenty-five years, the company had never closed its books on time and always had to ask for an extension. However, Perez told Singer that they were "going to get this done this year on time."

As the company was about to close it books for the third quarter of 2008, Perez met with an "outside" certified public accountant (CPA), the company had engaged. According to Perez, the CPA criticized his work in an insulting manner. Perez said that he could not "take any more of it" and resigned, effectively immediately. Perez stated that, after he resigned, his employer told him that his job would eventually have been eliminated.

In a decision mailed on March 18, 2009, the Appeal Tribunal found that Perez was disqualified from unemployment benefits as of October 26, 2008, pursuant to N.J.S.A. 43:21-5(a), because he left work voluntarily, without good cause attributable to the work. The Appeal Tribunal stated:

In this matter, the claimant left his job for two reasons. He did not like the way he was being treated by the employer and the CPA and also because he [felt] his job would not last much longer because his responsibilities were being delegated to others. Although it may be reasonable to assume that one's job would end under the same circumstances, the claimant did not have a date that the job would end prior to his resignation. Therefore, he is not protected under [N.J.A.C.] 12:17-9.5. Also, the employer's treatment of him during the meeting was an isolated incident and is not good cause for leaving a job. Also, his confrontation with the CPA does not rise to the level of good cause for leaving.

The Appeal Tribunal accordingly affirmed the Deputy Director's denial of benefits. Perez filed an appeal to the Board, which mailed its final decision in the matter on May 20, 2009, affirming the Appeal Tribunal's determination. This appeal followed.

Perez argues that the Board erred in finding that he was disqualified from unemployment benefits pursuant to N.J.S.A. 43:21-5(a). We disagree.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. An administrative agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (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)).

Here, the Board found that Perez 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 the claimant "left work voluntarily without good cause attributable to such work[.]" Although N.J.S.A. 43:21-5(a) does not define the term "good cause," it has been construed 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)).

The test for determining whether an employee's decision to leave work constitutes "good cause" is one of "'ordinary common sense and prudence.'" Brady, supra, 152 N.J. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). The employee's decision to quit "'must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that Perez left his job without good cause attributable to the work. N.J.S.A. 43:21-5(a). As we stated previously, Perez testified that he quit his job after he had been subjected to criticism by the CPA retained by the company to assist in the company's accounting work. Perez also expressed his dissatisfaction with the treatment he received when he was called into a meeting with Singer and other employees.

Perez does not assert that the criticism of his work was unjustified. Moreover, criticism of an employee's work "whether warranted or not, . . . [is to] be expected in the normal course of employment." Associated Util. Services v. Bd. of Review, 131 N.J. Super. 584, 589 (App. Div. 1974). Furthermore, in this case, there is no evidence that the criticism to which Perez was subjected was so severe as to rise to the level of intentional harassment, which may constitute good cause to leave work voluntarily under certain circumstances. Id. at 587.

Perez argues, however, that he quit his job with NYFS because he anticipated that he would be laid off at some time after November 1, 2008. Perez asserts that most of his job duties had been transferred to other workers, and management informed him that the company had to reduce its payroll. Perez maintains that other workers were laid off within ten days of when he quit his job. These facts do not, however, establish that Perez left his job for good cause attributable to the work.

In Brady, the claimants left their jobs and took early retirement because they feared an imminent layoff. Brady, supra, 152 N.J. at 203-204. The Supreme Court held that, in order to establish eligibility for unemployment benefits under these circumstances, the claimants had to show that their subjective fears of being laid off were "'based upon definitive objective facts.'" Id. at 215 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993)). The employees also had to show that they would suffer a substantial economic loss if they did not take early retirement. Ibid. (citing Trupo, supra, 268 N.J. Super. at 61).

Here, Perez failed to show that his subjective fear of being laid off was based on objective facts. Perez was never told that he was going to be laid off, although he may have been told that the company had to reduce its payroll. Although the company may have planned a reduction in its work force and other workers were discharged shortly after Perez resigned, this does not establish that Perez would have been laid off as well.

 
Moreover, N.J.A.C. 12:17-9.5 provides that if a worker leaves a job "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 [sixty] days." Here, Perez was never notified that he would be laid off at any particular time, as he conceded at the hearing. The record established that Perez quit his job because he did not like the way his employer treated him, not because of any objective fear that he would be laid off within sixty days.

Affirmed.

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A-5659-08T3

May 20, 2010