LYDIA OLADIMEJI v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ARC OF MIDDLESEX COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1904-10T3

LYDIA OLADIMEJI,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and ARC OF MIDDLESEX

COUNTY,

Respondents.

_______________________________

February 9, 2012

Submitted December 21, 2011 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Board of Review,

Department of Labor, Docket No. 272,429.

Lydia Oladimeji, appellant pro se.

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

Respondent ARC of Middlesex County has not filed a brief.

PER CURIAM

Claimant, Lydia Oladimeji, appeals from the denial of unemployment benefits based upon a determination by the Board of Review (Board) that she voluntarily left employment without good cause attributable to her employment. We affirm.

Claimant filed a claim for unemployment benefits on January 17, 2010. Her claim was rejected based upon a determination by a deputy director of the Division of Unemployment Insurance that she was disqualified for benefits because she left employment voluntarily without good cause attributable to her work. Claimant appealed the deputy's determination to the Appeal Tribunal (Tribunal). An appeals examiner conducted a telephonic hearing on April 12, 2010.

During the hearing, claimant testified that she was employed as a program specialist for the Association for Retarded Citizens (ARC) of Middlesex County. She had been with ARC for four years and had previously sought to change her work hours to attend school, but was unable to do so as no position was available. On January 8, 2010, she requested a transfer to a group home position in order to attend nursing school during the day. She submitted the request to Sandy Bergquist, the Director of Vocational Services. Thereafter, she followed up on her request with telephone calls, but was not given a definitive response as to whether the transfer had been approved. She was then told that she would have to write a letter indicating that she would no longer be available for work in the day program as of January 25, 2010.

As requested, she submitted a letter advising that she would no longer be available for work as of January 25, 2010, for personal reasons. She continued to report to work until January 21. On that date, she called Shari Wright, one of the directors at ARC, to discuss the transfer request she submitted on January 8. Claimant told Wright that since she submitted the request, she had attempted to find out its status, but "every time . . . [she] call[ed] Preeti [Dixit, ARC's Human Resources Coordinator,] she seem[ed] kind of [in]different . . . . [Dixit] told [claimant she] submitted [it] today and it's approved[, her] transfer. But [claimant] sent [her] a resignation." In response, claimant told Dixit that she "did not resign."

Dixit testified that claimant spoke to her about a transfer, but she told claimant that a transfer involves a process and at that time, she had no full-time positions available for the afternoon or evening shifts. She also told claimant that she would have to be interviewed and "then she might be approved[,] she might not be approved." Dixit indicated that on January 15, she received the letter from claimant advising that January 25 would be her last day, which ARC accepted as claimant's resignation.

Bergquist testified that claimant approached her in the fall of 2009 and advised that she was thinking about leaving ARC because of school, but that did not occur. Claimant spoke to her again in January, told her that she was going back to school and could no longer work the hours she was currently working, and asked about a change in her work schedule. Bergquist explained that claimant requested a day off for school, which she could not accommodate. She denied asking claimant to resign.

In rebuttal, claimant testified Dixit never told her that her transfer request might not be approved and that both Bergquist and her coordinator, Erica Fischer, told her that she had to write the letter stating that she would not be working "as of Monday[, January] 25th." Dixit, in her rebuttal testimony, stated:

Yes[,] the only thing that I would like to say is we're not using the letter as her resignation[.] [W]hat we are saying is she resigned from that position which she could not work and we did not have any part-time hours at the program. So the point is she would not have been able to work from Monday[,] whether she resigned[,] or based on the letter or not based on [the] letter. The point is she could not work at that program because of her school. And since we did not have any positions in the residential for her[,] so it is a resignation.

. . . .

. . . It is a resignation because she could not work at the program because of her school. And we did not have any positions for her in the other programs in the residential[.] [I]t is a resignation from the job because she wouldn't have come to the job for Monday.

In her final rebuttal, claimant testified that had she been told the transfer process was going to be longer, she would have pursued enrolling in a March class and that Fischer made her write the letter to make it "look like [she] left [her] job voluntarily[,] which is nuts."

The Tribunal affirmed the deputy's determination. It recognized that claimant attempted to solve her work and school conflict by requesting a transfer but concluded that "she had not begun the process early enough for openings to occur" and "claimant could have preserved her job by delaying her enrollment at the school for a later session, during which time a transfer could have become available." With reference to prior Board of Review decisions, the Tribunal noted that "[a] claimant who leaves work in order to further his [or her] education or to prepare himself [or herself] for another type of work will be disqualified" under N.J.S.A. 43:21-5.

The Tribunal also found no evidence that the employer had forced claimant to write her letter of resignation, as claimant asserted. The Appeals Examiner additionally found the fact that the resignation date set forth in claimant's January 25, 2010 letter was the same date as the initial date school was set to start as having greater probative value than claimant's later testimony and that the letter was also indicative of her intent to resign to attend school. Accordingly, the Tribunal found claimant statutorily disqualified for benefits, as she "left work voluntarily without good cause attributable to [such] work." The Board affirmed the Tribunal's decision and the present appeal followed.

On appeal, claimant contends leaving her employment "in order to take a better position because of factors related to the work constitutes good cause attributable to the work and, therefore, she should not have been disqualified for benefits." We reject this contention and affirm substantially for the reasons expressed by the Tribunal and adopted by the Board in its October 14, 2010 final agency decision. We add the following brief comments.

A claimant seeking unemployment compensation benefits bears the burden of establishing entitlement to an award of benefits. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964). "[A] claimant shall be disqualified from receiving unemployment compensation 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. . . .'" Brady v. Bd. of Review, 152 N.J. 197, 213 (1997) (emphasis removed) (quoting N.J.S.A. 43:21-5(a)). In applying N.J.S.A. 43:21-5(a), a court must distinguish between a voluntary quit with good cause attributable to the work and, on the other hand, a voluntary quit without good cause attributable to the work. Id. at 213-14. "Good cause" is "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); see also Zielenski, supra, 85 N.J. Super. at 52 (explaining good cause is "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed").

In Domenico v. Bd. of Review, we set forth the factors to be considered in determining the existence of good cause in a given matter:

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.

[ 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotation marks and citations omitted).]

Our role in reviewing the decision of an administrative agency is limited. We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable, that it lacked fair support in the evidence, or that it violated legislative policies. In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210-11; In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions by administrative agencies carry with them a strong presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

In the present case, the record fully supports the Board's decision. The Tribunal found claimant's testimony that she did not voluntarily resign lacking in credibility and found credible the testimony of the employer's representative that she voluntarily resigned to further her education before her transfer request was approved. The Tribunal's credibility determination is entitled to our deference because we are not in a position to evaluate the witnesses' credibility and determine whose testimony is worthy of belief. We are therefore obliged to "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "We read the record, not to balance the persuasiveness of the evidence on one side as against the other, but in order to determine whether a reasonable mind might accept the evidence as adequate to support the conclusion." Renan Realty Corp. v. N.J. Dep't of Cmty. Affairs, 182 N.J. Super. 415, 421 (App. Div. 1981). Where such determination "is reasonably made," as we are satisfied is evident here, "it is conclusive on appeal." Ibid.

Affirmed.