STACEY A. EVANS v. BOARD OF REVIEW DEPARTMENT OF LABOR and LIBERTY TRAVEL, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1715-10T1

STACEY A. EVANS,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

LIBERTY TRAVEL, INC.,

Respondents.

____________________________

April 10, 2012

Submitted March 27, 2012 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Board of Review, Department of Labor, Docket No. 268,803.

Gregory S. Schaer, attorney for appellant.

Jeffrey S. Chiesa, 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).

PER CURIAM

Appellant Stacey Evans appeals from the October 28, 2010 final decision of the Board of Review (Board), which affirmed the April 9, 2010 decision of the Appeal Tribunal that Evans was disqualified from receiving benefits under N.J.S.A. 43:21-5(a) as of December 27, 2009 because she left her employment at respondent Liberty Travel, Inc. (Liberty Travel) without good cause attributable to the work. We affirm.

In September 2000, Evans began her employment as a travel consultant with Liberty Travel. Senior agents, like Evans, worked weekends based on the needs of the office. It was not unusual for Liberty Travel to change an employee's work schedule, and changes occurred frequently depending on the season. On March 12, 2009, Evans executed an employment contract, which provided, in part, as follows:

Days and Hours. Employee agrees that Employer may designate the days and hours to be worked by Employee, which may include day or night hours, Saturdays, Sundays and holidays, or other days or hours deemed necessary by Employer. Employee further agrees that Employer may change Employee's work days and hours from time to time at the discretion of Employer. Employee agrees that he or she will work additional hours as required by Employer.

Prior to July 2009, Evans worked on Monday from 1:00 p.m. to 9:00 p.m., Tuesday, Wednesday and Thursday from 9:00 a.m. to 6:00 p.m., and Sunday from 11:00 a.m. to 5:00 p.m. Evans commenced maternity leave on July 27, 2009, and was scheduled to return to work on January 3, 2010. On December 11, 2009, her supervisor, Dorothy Marlin, contacted Evans to discuss Evans's work schedule for the following month. Marlin told Evans that she was not sure about the winter schedule and suggested that Evans's work schedule might change. By December 27, 2009, Evans had filed a claim for unemployment benefits.

On December 28, 2009, Marlin advised Evans that her new work schedule would be Monday, Wednesday, and Friday from 9:00 a.m. to 6:00 p.m., Thursday from 1:00 p.m. to 9:00 p.m., and Saturday from 10:00 a.m. to 5:00 p.m. According to Marlin, since the winter is the busiest time of the year for booking trips, the office was particularly active on weekends and she needed Evans to work on weekends because of Evans's experience as a senior agent.

Evans told Marlin that she could not work the new schedule because she had arranged for her mother to care for her child, and her mother was not available on Saturdays. The parties dispute whether Evans was terminated or resigned at this point. However, there is no dispute that after Evans contacted the district manager about her new work schedule, Marlin advised Evans that she could return to work for four weeks at her old schedule while she secured childcare to accommodate the new schedule. In addition, because Evans was a valued employee and the company "needed her[,]" Marlin would have extended that time period to eight weeks and perhaps longer, in order to afford Evans more time to secure childcare before changing her schedule. According to Marlin, Evans would not have been terminated if she had not secured childcare, and Marlin would have tried to accommodate her; however, Evans did not return to work.

The Appeal Tribunal found Evans was disqualified for benefits for the following reason:

Here, the claimant left the job because she felt the employer was committed to changing her hours of work to those that childcare was unavailable to her. However, the claimant was informed by the employer a few days later, while she was still on leave, that she could return to her customary schedule for one month, and seek childcare during that period for the one day that posed a "conflict" with the claimant's childcare providers (her family members). The claimant refused the employer's offer to return to the job at her regular hours and make an attempt to obtain childcare for the proposed future schedule. Although the claimant contends that she had already cancelled her childcare arrangements by the time the original schedule was offered, this action is not reasonable prior to exhausting opportunities to resolve the situation, which she was doing by contacting the district manager. Her failure to make a reasonable attempt of retaining her employment falls even shorter in view of the fact that the claimant signed a document on 3/12/09 which, at minimum, put the claimant on notice that such schedule changes could occur. Finally, there is no indication that future scheduling negotiations were completely precluded, or that the claimant would have been discharged if the claimant had returned to work and was ultimately unsuccessful in obtaining childcare for Saturdays.

The claimant did not establish good cause for voluntarily leaving the work, and is disqualified for benefits as of 12/27/09, in accordance with N.J.S.A. 43:21-5(a).

The Board accepted these findings, and affirmed. This appeal followed.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

An employee is disqualified for benefits:

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 and works four1 weeks in employment . . . .

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

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964); Goebelbecker v. State, 53 N.J. Super. 53, 59 (App. Div. 1958)); see also Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457 (App. Div. 1967); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962); N.J.A.C. 12:17-9.1(c). "While the statute does not define 'good cause,' our courts have construed the statute 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 the employment."

An employee who leaves work for good, but personal, reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self, supra, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "'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.'" Domenico, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "'The decision to leave employment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Shuster v. Bd. of Review, 396 N.J. Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)); see also In re N.J.A.C. 12:17-9.6 ex rel. State Dep't of Labor, 395 N.J. Super. 394, 399-400 (App. Div. 2007). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175; Zielenski, supra, 85 N.J. Super. at 53-54).

Here, Liberty Travel had the right under Evans's employment agreement to designate the days and hours of her work schedule, and change the schedule at its discretion. Evans refused to work the new schedule, refused to return to work her old schedule, and filed for unemployment benefits before exhausting opportunities to resolve the situation. Evans's dissatisfaction with her new work schedule, which was not shown to be abnormal or affect her health, did not constitute good cause for leaving work voluntarily. She left her employment for personal reasons, not for reasons so compelling that she had no choice but to leave. We are satisfied that the determination that Evans was not terminated, but rather, left work voluntarily without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.

1 An amendment to N.J.S.A. 43:21-5(a), effective July 1, 2010, substituted "eight weeks" for "four weeks."