JONG PAK v. BOARD OF REVIEW DEPARTMENT OF LABOR, KUGNUS, INC and E. DENTAL P.C

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0703-10T4

JONG PAK,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, KUGNUS, INC., and

E. DENTAL P.C.,

Respondents.

________________________________________________________________

September 30, 2011

Submitted September 14, 2011 - Decided

Before Judges Graves and Koblitz.

On appeal from the Board of Review, Department of Labor, Docket No. 255,008.

Jong Pak, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).

Respondent Kugnus, Inc. has not filed a brief.

PER CURIAM

Jong Pak appeals from an August 31, 2010, final agency decision of the Board of Review (Board), finding that he was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to his employment. We affirm.

Pak was employed full-time at a salary of $57,000 as an academic manager for Kugnus, Inc.,1 from March 23, 2009 until September 30, 2009. Pak testified that, although he was working on his own movie project, he was always available when his employer needed him. He testified that he refused his employer's offer of a part-time hourly job at the rate of $28 per hour because he needed health insurance benefits and had an expensive commute to work.

His employer testified that Pak was unavailable to work at his full-time job when needed due to his outside movie project and that Pak initially accepted part-time hourly work. The employer testified that Pak quit without warning in the middle of the day on September 30, 2009. The Appeal Tribunal accepted the employer's testimony and found that "the claimant initiated the change to the employment. The employer attempted to accommodate him."

Finding that Pak left work voluntarily without good cause attributable to the work, the Appeal Tribunal found Pak disqualified for benefits. The Board of Review affirmed.

We review Pak's contentions in accordance with our standard of review. The Board's determination that Pak was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

An appellate court "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, those conclusions must be upheld. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

The Appeal Tribunal relied on the relevant section of the New Jersey Unemployment Compensation Law then in effect,2 which provided that a claimant is 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 for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .

[N.J.S.A. 43:21-5(a) (emphasis added).]

While the statute does not define "good cause," the statute has been construed to require more than mere dissatisfaction with working conditions:

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. 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. . . . [I]t 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 quotations and citations omitted).]

"Good cause" is defined by regulation as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). Thus, an employee who leaves a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a).

Although Pak's testimony supports a contrary decision, we are constrained to affirm. The Appeal Tribunal based its decision on the employer's testimony that Pak did not wish to retain his full-time job and then voluntarily left the part-time job he was offered as an accommodation. After considering the record, the Board affirmed these findings. The Board's decision was based on sufficient credible competent evidence to support the agency's conclusions. See Clowes, supra, 109 N.J. at 587.

Affirmed.

1 Although Pak worked for Kugnus, Inc., a school, he was paid by an unrelated company, E. Dental P.C.

2 Subsequent to the March 1, 2010 decision of the Appeal Tribunal, the statute was amended to require the claimant to work for eight weeks in employment and earn at least ten times the individual's weekly benefit rate. L. 2010, c. 37, 2, eff. July 1, 2010. Those changes are not germane to this appeal.