DAMARIS MEDINA v. BOARD OF REVIEW DEPARTMENT OF LABOR and THE CITY OF CAMDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1581-10T4

DAMARIS MEDINA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and THE CITY OF CAMDEN,

Respondents.

________________________________________________________________

March 14, 2012

Submitted February 28, 2012 - Decided

Before Judges Yannotti and Espinosa.

On appeal from the Board of Review, Department of Labor, Docket No. 278,751.

Damaris Medina, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent the City of Camden has not filed a brief.

PER CURIAM

Damaris Medina appeals from a final agency decision that she was disqualified from receiving unemployment benefits. We affirm.

Medina was employed by the City of Camden (the City) as a clerk from August 12, 2002 to March 3, 2010. When first employed, Medina began her shift at 8:30 a.m. In approximately June 2008, she was assigned to a shift that began at 9:00 a.m. Then, in June 2009, she asked to return to a shift beginning at 8:30 a.m. because her daughter had to attend summer school. Medina testified that this was to be a temporary assignment for the summer and that she was to resume the 9:00 a.m. shift in September. However, she said her four requests for that change were denied.

During the period from September 9, 2009 and March 3, 2010, Medina came to work at 9:00 a.m. despite her 8:30 a.m. start time. Medina is a single parent and had no one else to drive her children to school. She stated she was late because there was no morning child care available and the earliest she could drop off her children for grade school was 8:15 a.m. Although the drive from the school to work was approximately fifteen to twenty minutes, the trip could be extended to one-half hour by traffic and inclement weather.

Unable to accommodate Medina's request to return to the 9:00 a.m. shift, the City took the half-hour of work that she missed each day from her sick and vacation time and then started taking disciplinary action against Medina. Medina and her attorney met with representatives of the City. A settlement agreement resolving all pending disciplinary charges was reached, stating in part:

1.) Damaris Medina will be involuntarily separated from employment with the City of Camden, effective March 3, 2010. She will be entitled to her salary and benefits through this date. Continued Health Benefits will terminate on April 30, 2010;

2.) The City agrees that it shall not contest her unemployment application and will cooperate with her in connection with her application for unemployment;

3.) All pending disciplinary charges shall be withdrawn and Ms. Medina agrees that she waives any right to contest her separation from employment or file any lawsuits in connection with her employment excluding any pending workers' compensation claims; and

4.) This agreement is non-precedential and in entering this agreement, neither party admits to any wrongdoing.

Medina filed a claim for unemployment benefits. The Deputy Director of the Division of Unemployment Insurance found her disqualified for benefits, stating:

You left work voluntarily on 03/03/10.

You voluntarily separated from your job due to mutual agreement. You indicated that your employer could not accommodate your daughter's school schedule any more and that created a personal hardship for you to continue to work. Although your reason for leaving is valid, it is personal.

Since your reason for leaving was personal, it does not constitute good cause attributable to the work. You are disqualified for benefits.

Medina filed a timely appeal from this determination. In the hearing before the Appeal Tribunal, she acknowledged that she could have kept her job if she was able to get to work by 8:30 a.m. The Appeal Tribunal affirmed the determination of ineligibility, noting that, pursuant to N.J.S.A. 43:21-5(a), an individual's separation from employment to care for children constitutes leaving work voluntarily without good cause attributable to the work, and stating further:

Although the employer is not contesting the collecting on unemployment benefits, the decision must be based on law. The claimant was unable to continue working at 8:30 am because of personal reasons not attributable to the work.

Medina appealed to the Board of Review, which affirmed the Appeal Tribunal's decision based upon its review of the record. In this appeal, Medina raises the following issues:

POINT I

THE LEGAL STANDARD OF INTENTION TO VOLUNTARILY LEAVE WORK WAS NOT MET IN THIS CASE.

POINT II

THE AGENCY OVERLOOKED AND UNDERVALUED EVIDENCE FAVORABLE TO CLAIMANT MEDINA SUCH THAT THE DECISION OF THE TRIBUNAL IS MISTAKEN AND ARBITRARY[.]

POINT III

THE UNEMPLOYMENT COMPENSATION LAW IS REMEDIAL LEGISLATION WHICH IS TO BE LIBERALLY CONSTRUED FOR CLAIMANTS AND WHICH SHOULD PROTECT EMPLOYEES SUCH AS CLAIMANT MEDINA WHO WAS TERMINATED WHILE ACTING TO REASONABLY PROTECT HER RIGHTS AND COMPLY WITH PARENTAL RESPONSIBILITIES.

After reviewing the facts in light of the applicable legal principles, we are satisfied that none of these arguments have merit.

Although the settlement agreement states that Medina was "involuntarily separated from employment[,]" the undisputed facts show she could have retained her employment if she was able to get to work on time for the 8:30 a.m. shift to which she was assigned. Thus, the initial notice of determination accurately described the termination of her employment as her "voluntarily separat[ing] from [her] job due to mutual agreement."

The question presented is, therefore, whether Medina is entitled to the protection of New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, because she voluntarily left her employment "for good cause attributable to [her] work." Utley v. Bd. of Review, 194 N.J. 534, 543-44 (2008). The burden to prove good cause falls upon the employee. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). Such "good cause" exists when the cause is "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) (citations omitted). In defining those circumstances which meet that requirement, we have said:

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 employ-ment 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.

[Id. at 288 ) (emphasis added) (citations and internal quotation marks omitted).]

In essence, in determining whether the employee voluntarily left employment for good cause attributable to the work, the employee must show that he or she did all that was "necessary and reasonable in order to remain employed." Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoted with approval in Utley, supra, 194 N.J. at 549, and Brady v. Bd. of Review, 152 N.J. 197, 214 (1997)).

Medina has failed to show that she did so. It is undisputed that what was necessary for Medina to remain employed was for her to get to work on time for her 8:30 a.m. shift. Her stated reason for her inability to do so was that she was unable to drop her children off at school early enough to get to work by 8:30 a.m.

N.J.S.A. 43:21-5(a) directs that an individual "shall be disqualified for benefits . . . [when he or she] has left work voluntarily without good cause attributable to such work[.]" Although "good cause" is not defined by the statute, N.J.A.C. 12:17-9.1(e) states in pertinent part, "An individual's separation from employment shall be reviewed as a voluntarily leaving work issue where the separation was for . . . [c]are of children or other relatives[.]"

In light of these provisions, Medina's admissions that she could have retained her employment if she got to work by 8:30 a.m., and that her inability to do so was caused by her need to care for her children provide sufficient evidentiary support for the Board's conclusion that she was disqualified from receiving benefits. Accordingly, the agency's findings are not arbitrary, capricious or unreasonable, and are entitled to our deference. See Brady, supra, 152 N.J. at 210; Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001).