CHRISTOPHER CONOSCIENTI v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3268-11T1

CHRISTOPHER CONOSCIENTI,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR AND BRICKFORCE TRANSPORTATION,

INCORPORATED,

Respondents.

______________________________________________

December 19, 2013

Submitted October 16, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 330,285.

Christopher Conoscienti, appellant pro se.

John J. Hoffman, Acting Attorney General, attorneyfor respondentBoard of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

PER CURIAM

Christopher Conoscienti appeals from a January 23, 2012 final agency decision of the Board of Review (the Board), which affirmed the July 5, 2011 decision of the Appeal Tribunal (the Tribunal) finding that Conoscienti was disqualified from unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to his employment. The Tribunal also held Conoscienti liable for a refund of $2048 in benefits he had already received in accordance with N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Brickforce Transportation, Inc. (Brickforce) employed Conoscienti as a temporary warehouse worker from June 11, 2009, through August 23, 2010. Conoscienti signed an agreement with Brickforce on June 9, 2009, agreeing to employment in general warehouse or clerical positions. The agreement specified that if an assignment was terminated for any reason, Conoscienti was to report to the Brickforce office within forty-eight hours for a reassignment. If Conoscienti failed to report for a reassignment after termination of an assignment, the agreement stated that he would be deemed to have voluntarily abandoned his employment and resigned from Brickforce with no right to unemployment benefits.1

Conoscienti worked at various locations through Brickforce. His last assignment was with Vital Signs, where he worked for approximately three weeks. On August 23, 2010, Conoscienti was informed by Edgar Varela, the on-site supervisor for Brickforce, that he was being laid off from his assignment with Vital Signs due to a shortage of work and that he should return to the Brickforce office for a new assignment.

According to Diana Ramos, the dispatcher for Brickforce, Conoscienti never returned to the Brickforce office for reassignment after he was laid off from Vital Signs. Additionally, Conoscienti never signed the "no work available" log. Ramos stated that the log was always left on the counter in the waiting room for employees to sign and after all of the positions were filled for the day, she would make an announcement reminding the employees to sign the log. Conoscienti admitted signing the log on prior occasions. According to Ramos, after August 23, 2010, the next contact she had with Conoscienti occurred on December 21, 2010, when he visited the office to tell her that he obtained construction employment elsewhere.

Conoscienti claimed that he went to the Brickforce office every day for seven days straight after he was laid off. He stated that Ramos never enforced the "no work available" log requirement and that he did not sign the log because Ramos did not make it available for employees to sign. He also alleged that Ramos told him that no work was available for him because the only openings at that time were for women.

Conoscienti filed a claim for unemployment benefits, which established a weekly benefit rate of $128. He received benefits from the week ending December 4, 2010, through March 19, 2011, for a total of $2048. He then received a notice, dated April 10, 2011, that he must refund the benefits because he had left work without good cause related to work.

Conoscienti immediately appealed. The Tribunal heard the appeal on May 26, 2011, and June 22, 2011, at which Conoscienti, Ramos, Varela, and a Brickforce representative testified.

The Tribunal issued a decision on July 5, 2011, that Conoscienti was disqualified from benefits as of August 22, 2010, for voluntarily leaving his employment with Brickforce without good cause, and found Conoscienti liable for the $2048 already improperly paid to him. The Tribunal found Brickforce's witnesses and evidence credible, and that Conoscienti voluntarily failed to seek a new assignment pursuant to the agreement. Conoscienti appealed to the Board, and the Board affirmed. This appeal followed.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotation marks and citation omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 70-71 (1985) (quoting Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).

A person is disqualified from receiving unemployment 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 and works eight weeks in employment, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case.

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

In order to avoid disqualification, the claimant has the burden of establishing that he left work for good cause related to work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "'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 v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Review Bd., 69 N.J. Super. 338, 345 (App. Div. 1961)). An employee's "decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. Moreover, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (citing Condo v. Review Bd., 158 N.J. Super. 172, 175 (App. Div. 1978)).

Thus, an employee who quits a job without a sufficient work-related reason is disqualified from benefits under N.J.S.A. 43:21-5(a). Moreover, an employee who leaves work for a good, but personal reason is also subject to the disqualification. See Pagan v. Bd. of Review, 296 N.J. Super. 539, 542 (App. Div.), certif. denied, 150 N.J. 24 (1997).

Under N.J.S.A. 43:21-16(d), if an individual receives benefits for any reason while he or she was disqualified from receiving said benefits, the individual "shall be liable to repay those benefits in full." The waiver of the recovery of benefit overpayment can only be granted by the Director in accordance with N.J.A.C. 12:17-14.2.

Applying our highly deferential standard of review, we find no occasion to interfere with the Board's decision. The record amply supports the Board's conclusion that Conoscienti voluntarily left Brickforce without good cause when he failed to report for a new assignment. Based upon the Tribunal's well-grounded factual findings, Conoscienti did not do what was necessary and reasonable to remain employed with Brickforce when he failed to comply with the terms of his employment contract. Domenico, supra, 192 N.J. Super. at 288. As such, Conoscienti was disqualified at the time he received $2048 in benefits and, in the absence of waiver by the Director, is liable to repay that amount.

1 We need not address whether an employer can bind an employee in an agreement to waive unemployment benefits under the statute, since, for the reasons stated in this opinion, the Board correctly denied benefits to Conoscienti based upon the facts presented and without relying on the agreement's waiver provision.