THOMAS G. MCNALLY v. BOARD OF REVIEW DEPARTMENT OF LABOR, and STOP & SHOP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4541-09T1

THOMAS G. MCNALLY,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and STOP & SHOP,

Respondents.

__________________________________________

May 3, 2011

Submitted April 5, 2011 - Decided

Before Judges Messano and St. John.

On appeal from a Final Administrative Decision of the Board of Review, Department of Labor, No. 241,347.

Thomas G. McNally, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Respondent Stop & Shop has not filed a brief.

PER CURIAM

Appellant Thomas G. McNally (McNally) appeals from a final determination of the Board of Review (Board), which found that he is disqualified from unemployment compensation benefits as of March 30, 2008, pursuant to N.J.S.A. 43:21-5(a). For the reasons that follow, we affirm.

The following are the relevant facts. McNally was employed by S & S Corp. Inc. (Stop & Shop) from October 16, 2006 to October 6, 2007, as a part-time night closer. Without explanation to management, McNally did not return to work after October 6, 2007. Several weeks later, McNally's sister called Stop & Shop to tell them that her brother was hospitalized. McNally initially applied for disability benefits from the State of New Jersey, which were denied because he should have filed under the employer's approved Private Plan with Hartford Life and Accident Company. Hartford approved disability benefits from October 7, 2007 through March 31, 2008, after which time McNally was medically cleared to return to work. He did not return to work at any time after March 31, 2008.

On March 30, 2008, McNally filed a claim for unemployment compensation benefits. A deputy to the Director, Division of Unemployment Insurance, held that McNally was eligible for benefits. Stop & Shop sought review by the Appeal Tribunal of the deputy claims examiner's determination by filing a timely appeal, arguing that McNally left work voluntarily without good cause attributable to work.

An appeals examiner conducted a hearing in the matter on October 1, 2009. At the hearing, McNally testified that he did not return to work because there was no job for him. He came to this conclusion based on conversations he had with non-management employees who told him someone else had been hired to do his job. McNally testified that he did not speak to the store manager, assistant store manager, or anyone in management to determine whether his job was still available. Mr. Smith, the store manager, testified that after October 6, 2007, McNally's last day of work, McNally never contacted him. Smith further testified that if he had been informed that McNally had a return to work date of April 1, 2008, McNally's job would have been available to him as of that date.

The Appeal Tribunal issued a decision, reversing the determination of the deputy, which was mailed to the parties on October 19, 2009. The appeals examiner wrote that McNally was on an approved medical leave of absence and was medically released to return to work on April 1, 2008. The appeals examiner also found that McNally never contacted his employer or returned to work from April 1, 2008 through the hearing date, October 1, 2009. The appeals examiner further found that work was available to McNally on April 1, 2008.

The appeals examiner therefore determined that McNally was disqualified from benefits as of March 30, 2008, pursuant to N.J.S.A. 43:21-5(a), because he left his job voluntarily without good cause attributable to the work.

McNally filed an appeal to the Board from the Appeal Tribunal's decision. The Board issued a final determination, which was mailed to the parties on April 26, 2010. The Board found that the record did not support McNally's assertion that he was terminated as of October 6, 2007. Although Stop & Shop's records revealed that McNally was terminated as of that date, it was undisputed that McNally had no formal notice that he was discharged prior to the date he was medically cleared to return to work and that he failed to contact his employer after that date. The Board further noted that it is not uncommon for an employer to document the date of an employee's last day of work as the date of separation when a job is abandoned.

The Board therefore upheld the Appeal Tribunal's finding that McNally was disqualified from benefits pursuant to N.J.S.A. 43:21-5(a). This appeal followed.

On appeal, McNally states, for the first time, that on October 9, 2007, he telephoned Smith and told him he was medically disabled. He asserts that Smith responded that he was terminated and then wished him good luck. McNally explains that these facts were not raised by him at the hearing because he suffers from a mental illness. Based on his allegation of termination, McNally argues that he should not have been disqualified from receiving unemployment compensation benefits.

Pursuant to N.J.A.C. 12:17-9.11(b):

An employee who has not returned to work following an approved leave of absence . . . and who without good cause has not notified the employer of the reasons for failing to return to work within five consecutive work days shall be considered to have abandoned his or her employment. Such job abandonment shall subject the employee to disqualification for benefits for voluntarily leaving work without good cause attributable to such work.

The record indicates that McNally was on an approved medical leave of absence, had a return to work date of April 1, 2008, and never reported back to work nor contacted his employer.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited.

"There are well-recognized principles governing the judicial review of administrative agency determinations" and appellate courts "have a limited role in the review of such decisions." In re Stallworth, ___ N.J. ___ (2011) (slip op. at 13) (citations omitted). 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." Brady v. Board of Review, 152 N.J. 197, 210 (1997) (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, ___ N.J. at ___ (slip op. at 14) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980)). "If a reviewing court concludes that a decision of the [Board] is arbitrary, the court may either finally determine the matter by fixing the appropriate penalty or remand it to the [Board] for redetermination." Henry, supra, 81 N.J. at 580 (citing West New York v. Bock, 38 N.J. 500, 520, 527-28 (1962)). In determining whether agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2)

whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether

in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Here, the Board found that McNally was disqualified from 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)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" as a "reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave employment."

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 substantial credible evidence in the record to support the Board's findings that McNally left his job voluntarily without good cause attributable to the work, after he was medically cleared to return to work, and that his job was available to him as of that date. Moreover, the record does not support McNally's assertion that he was terminated by Smith on October 9, 2007.

A