JOSEPH A. RIZZI, JR v. BOARD OF REVIEW DEPARTMENT OF LABOR, and THE NIA GROUP LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2540-08T1

JOSEPH A. RIZZI, JR.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and THE NIA GROUP,

LLC,

Respondents.

_______________________________

June 1, 2011

Submitted May 11, 2011 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Board of Review, Department of Labor, Docket No. 51,409.

Joseph A. Rizzi, Jr., appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent The NIA Group, LLC has not filed a brief.

PER CURIAM

In this most recent appeal, Joseph Rizzi appeals from an order and final decision disqualifying him for unemployment benefits.1 Rizzi left his job as an insurance salesperson because he was dissatisfied with the time it would take to earn commissions sufficient to offset his draw. The Board of Review adopted the Appeal Tribunal's findings of fact and conclusion of law that Rizzi left work voluntarily without good cause attributable to his work. We agree and affirm.

NIA Group, LLC (NIA), a property, casualty, and life insurance brokerage firm, hired Rizzi in December 2003. Following an initial unpaid training period, Rizzi's compensation consisted of a biweekly salary for the first four months, later modified to six months. Thereafter, his compensation would have changed to a draw against commissions. The draw acts as an advance on any future commissions. Once Rizzi's commissions exceeded his draw, the earnings from his draw would be deducted from his commissions. This system of compensation allows employees, like Rizzi, to receive a steady cash flow until earnings from any commissions are received.

Peter Hutton, NIA's Vice-President of Sales, informed Rizzi when he was hired that one could earn a large enough commission to offset a draw in approximately six months. After working for a few months, Rizzi believed it would take him longer to generate business. Hutton explained that with some individuals it may take longer. Rizzi resigned six months after he was hired because he believed he could not produce enough commissions to offset the draw.

Rizzi filed a claim for unemployment benefits on September 5, 2004. The Appeal Tribunal denied the claim and explained that Rizzi was not entitled to unemployment benefits pursuant to N.J.S.A. 43:21-5(a). The statute states in pertinent part:

An individual shall be disqualified for benefits:

(a) For 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 . . . .

The term "good cause" is defined 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). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause . . . ." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal citations and quotation marks omitted). The Appeal Tribunal concluded that Rizzi resigned without good cause because he was dissatisfied with the time it would take him to earn commissions sufficient to offset his draw. The Board affirmed.

On appeal, Rizzi argues that he is entitled to unemployment benefits because his employer pressured or fraudulently induced him to leave work because he incurred debt by not earning enough money to offset his draw.

The role of this court in reviewing an administrative agency's final determination is exceedingly limited. In re Taylor, 158 N.J. 644, 656 (1999).

The scope of review of an administrative decision is the same as that [for] an appeal in any non[-]jury case, i.e., whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.

[Ibid. (internal quotations and citations omitted).]

An appellate court is not permitted to "'engage in an independent assessment of the evidence as if it were the court of first instance.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If, in reviewing the agency's decision, this court finds sufficient credible evidence in the record and the inferences to be drawn therefrom, it must uphold the agency s decision even if the court would have reached a different result. Campbell v. N.J. Racing Comm n, 169 N.J. 579, 587 (2001); In re Taylor, supra, 158 N.J. at 657.

Therefore, this court will only disturb a final agency determination if it concludes that the decision was arbitrary and capricious. In re Application of Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997) (citing Worthington v. Fauver, 88 N.J. 183, 204 (1982)). "'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" In re Application of Holy Name Hosp., supra, at 295 (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)). There is a strong presumption of an agency's reasonableness. In re Application of Holy Name Hosp., supra, at 295. The burden of showing that an agency determination was arbitrary and capricious is on the party challenging it. Ibid.

We find that the Board's decision was reasonable, and we see no basis for disturbing it. We affirm substantially for the reasons expressed by the Board in its thoughtful and detailed written opinion dated December 16, 2008. We add the following brief comments.

The Board found correctly, by substantial, credible evidence, that Rizzi was ineligible for unemployment benefits. Rizzi's employment agreement explained how he would receive his salary and clearly explained that he would not be in "debt" to NIA if his commissions did not exceed his draw. At no point would Rizzi owe NIA money. Furthermore, Hutton accurately described that it takes approximately six months or longer for one's commissions to exceed the draw. Rizzi's resignation within six months belies his claim that Hutton's approximation was a misrepresentation. Rizzi was not pressured or fraudulently induced to leave work; he resigned because he felt it would take too long to reach a satisfactory level of income. Therefore, the Board did not act arbitrarily or capriciously, but rather found by substantial, credible evidence that Rizzi left his employment merely because he was dissatisfied with his job. Dissatisfaction is not "good cause."

1 We remanded the matter for the Appeal Tribunal to develop a complete record. The Appeal Tribunal again concluded Rizzi left work voluntarily without good cause attributable to his work because he was dissatisfied with the time it would take to earn commissions sufficient to offset his draw. The Appeal Tribunal also explained that Rizzi knew he would not be in "debt" if his commissions failed to exceed his draw. The Board again affirmed the Appeal Tribunal's decision, Rizzi appealed, and we granted his motion to remand. The Board reconsidered, affirmed again, Rizzi appealed, and the matter is now before this court a third time.