SAMANTHA A. MONDAY v. BOARD OF REVIEW and MOHN'S FLORIST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4959-10T2

SAMANTHA A. MONDAY,

Appellant,

v.

BOARD OF REVIEW and

MOHN'S FLORIST,

Respondents.

July 2, 2012

Submitted May 29, 2012 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Board of Review, Department of Labor, Docket No. 234,568.

Samantha A. Monday, appellant pro se.

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

Respondent Mohn's Florist has not filed a brief.

PER CURIAM

Samantha A. Monday appeals from the November 1, 2010 final decision of the Board of Review of the Department of Labor (the Board) denying her unemployment benefits because she left her employment voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). We affirm.

After the initial denial, Monday appealed, and an Appeal Tribunal hearing was conducted on September 9, 2009, at which only she appeared. Monday had worked as a floral designer for Mohn's Florist from May 2004 through May 2009. By the time she left the employment, she was also working as the shop's retail manager.

At the hearing, Monday told the examiner that the national average rate of pay according to "Yahoo Jobs" for a retail shop manager was $25 per hour and that she needed to make at least $22 per hour. She claimed she had spoken to the owners at least five times between February 14 and May 5, the day she left, about her dissatisfaction with her wages. The Deputy's determination was reversed because the examiner construed N.J.S.A. 43:21-5(a) to mean that if Monday was paid less than "the national average rate of pay" for similar work, that constituted cause attributable to the work and entitled her to receipt of benefits.

The employer then appealed, and having found "good cause" for its failure to appear, the Board remanded the matter for a second hearing. At that hearing, conducted April 22, 2010, Monday claimed that she had been assured that she would receive an increase in pay. She reiterated that she was entitled to more money than she was currently receiving by way of wages based on "some averages" she found when she looked online, in addition to "other floral designers that I know that are also in the same business."

Georgeann Cochrane, an owner of Mohn's Florist, disputed that contention, claiming that she too went online and that "the average in the Edison, New Jersey metropolitan area we were at the 81 percentile as far as pay because the average is $15.35 which Miss Monday definitely would have [] received after we spoke next Monday." In fact, Cochrane claimed that in prior years, Monday had typically received annual raises in May, the anniversary month of her hire. Depending on the financial circumstances of the business, Monday had occasionally received raises and bonuses in December.

The day Monday left her employment, she demanded Cochrane raise her salary from $14.50 per hour to $22 per hour. When Cochrane responded that she could not agree to a raise until she spoke to her husband, also an owner, over the weekend, Monday insisted upon an immediate response. When none was forthcoming, she cleared out her belongings and quit.

The Appeal Tribunal reversed its earlier decision and concluded that because the employer had merely asked for time over the weekend before responding, that Monday had separated from her employment without good cause attributable to the work. See N.J.S.A. 43:21-1(a).

Monday appealed that decision, which was affirmed by the Board on November 1, 2010. In doing so, the Board relied upon DeSantisv. Board of Review, 149 N.J. Super. 35 (App. Div. 1977), and said that good cause attributable to the work did not include "disappointment in not receiving a hoped-for raise where there was no contractual obligation on the part of the employer with respect to salary increments . . . ." Since in this case the employer was not legally obligated to raise Monday's salary, the resignation barred her from collecting benefits.

In support of her position on appeal, Monday contends that the Board's decision issued in error because it overlooked "the most important" evidence in the case. In September 2008, Monday applied for a loan and requested that her employer complete an employment verification form. Cochrane's husband, also an owner of Mohn's, did so. He apparently indicated that Monday would receive a substantial raise in January 2009. Monday contended that the form bound the employer to give her a raise in January 2009. We agree with the Board, however, that the document is not equivalent to a contractual commitment to give Monday a raise, and in the absence of such a commitment, Monday's quit was not due to cause attributable to the work. That the employment verification form was not binding on Mohn's is self-evident. Consideration was not exchanged for the execution of the loan application, for example. See Cont'lBank of Pa. v.Barclay Riding Acad., Inc., 93 N.J. 153, 170 (citing Friedman v.Tappan Dev. Corp., 22 N.J. 523, 533 (1956)) (holding that "[n]o contract is enforceable . . . without the flow of consideration . . . ."), cert.denied, 464 U.S. 994, 104 S. Ct. 488, 78 L. Ed. 2d 684 (1983). Since the employer's completion of the form did not create an enforceable contract, Monday's decision to leave months later because she was not given a raise simply does not meet the statutory test of good cause attributable to the work. See DeSantis, supra, 149 N.J. Super. at 37-38.

Monday also contends that the Board's decision issued in error because, pursuant to N.J.A.C. 12:17-11.2(b)(2), if she proved her wages were substantially less than "those prevailing for similar work in the labor market area[,]" she should not be found to be disqualified for benefits. Unfortunately, Monday's statistics do not establish that the wages were indeed "substantially less favorable than those prevailing for similar work in thelabor market area[.]" See N.J.A.C. 12:17-11.2(b)(2) (emphasis added). The average figures are national and therefore do not provide information regarding the "market area" in which she worked.

The burden of proof rests upon Monday to establish a right to unemployment compensation, see Brady v.Bd. of Review, 152 N.J. 197, 218 (1997), and our review of agency determinations is limited. In re Stalworth, 208 N.J. 182, 194 (2011); In re Taylor, 158 N.J. 644, 656 (1999). We defer to such decisions, unless they are found to be arbitrary, capricious, or unsupported by substantial credible evidence in the record as a whole. See Russov. Bd. of Trs.,Police & FireRetirement Sys., 206 N.J. 14, 27 (2011); In re Carter, 191 N.J. 474, 482 (2007). Additionally, we ask whether the agency's findings could reasonably have been reached on sufficient credible evidence 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." Taylor, supra, 158 N.J. at 656 (quoting Close v. KordulakBros., 44 N.J. 589, 599 (1965)). We do not substitute our judgment for that of an administrative agency as to the persuasiveness of the evidence. In reCertificate of Need Grantedto the Harborage, 300 N.J.Super. 363, 379 (App. Div. 1997). We do not "weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." Ibid. (quoting De Vitis v.N.J. Racing Comm'n, 202 N.J.Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)). We only intercede when the interests of justice require it. See Campbell v.N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001).

We see no necessity to intervene in this case. The Board's final decision turned on the legal question of whether the statute includes dissatisfaction with wages as "good cause attributable to the work[.]" Here it does not, and Monday has not carried her burden of proof to establish her dissatisfaction was justified by a contract with the employer. There is no basis for us to reach a different conclusion and substitute our judgment for the Board's. The Board's legal interpretation was not arbitrary, capricious, or unreasonable.