CHRISTOPHER D BRADSHAW 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NOT FOR PUBLICATION WITHOUT THE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-3535-10T4

CHRISTOPHER D. BRADSHAW,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

THE AMERICAN INSTITUTE FOR

HISTORY EDUCATION, L.L.C.,

Respondents.

___________________________________________

January 15, 2013

Submitted October 3, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from the Board of Review,

Department of Labor, Docket No. 249,271.

Christopher D. Bradshaw, appellant pro se.

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, Christopher D. Bradshaw, appeals from a final decision of the Board of Review finding him disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a). Our examination of the record, in light of our standard of review, satisfies us that the Board's final decision was properly premised on facts in the record and is consonant with relevant statutory provisions. Accordingly, we affirm.

Respondent American Institute for History Education, L.L.C. (AIHE), hired Bradshaw in 2006 as a consultant to develop Cicero Systems, a web-based history education program. On July 1, 2007, AIHE hired Bradshaw as an employee pursuant to an oral contract. All employees were required to execute an employment agreement and both Bradshaw and AIHE's president, Kevin Brady, were in extended negotiations about the terms of Bradshaw's employment agreement, including the possibility and terms of an equity interest in the company. In a draft agreement, AIHE proposed that Bradshaw receive a substantial raise when Cicero sales totaled one million dollars and five percent phantom equity rights,1 but Bradshaw objected to the terms of the agreement. In March 2009, Brady and Bradshaw met to work out terms for the employment contract but were again unsuccessful in finalizing a written agreement. Bradshaw continued to work without a written agreement.

When Bradshaw and Brady met again on August 4, 2009, Bradshaw showed Brady a letter from his attorney claiming Bradshaw was an owner of the company and requesting additional monetary guarantees. Brady viewed Bradshaw's demands as unreasonable and told him to "get out." Bradshaw went back to his office and began packing his belongings. An employee from Human Resources and Orlando Rivera, a vice-president, tried to calm down Bradshaw. He was instructed to stay home until the dispute could be worked out but was assured that he was still on the payroll.

Orlando sent Bradshaw an email on August 10, 2009, transmitting the company's "final offer," which included the previously discussed pay raise when sales topped one million dollars and the five percent phantom equity rights. On August 11, 2009, Bradshaw responded, informing Brady that he did not think the offer was fair, and rejecting the final offer. He requested to come into the office to remove his belongings.

Bradshaw filed a claim for unemployment benefits on August 16, 2009, which the Deputy Director (Deputy) of the Division of Unemployment and Disability Insurance denied on the basis that he left work voluntarily without good cause attributable to work. The Appeals Tribunal modified the Deputy's determination and found that Bradshaw was disqualified for misconduct connected to work. On June 8, 2010, the Board reversed the Tribunal and held that Bradshaw left work voluntarily but remanded for a hearing on whether he left for good cause attributable to his work.

After a second hearing, the Tribunal affirmed the determination of the Deputy that Bradshaw had left without good cause attributable to work. The hearing officer reasoned as follows.

On 8/11/09 the claimant sent the employer an email rejecting the contract and stating he wanted to remove his belongings. The employer accepted the claimant's resignation. The new contract did not cut the claimant's salary, hours of work and allowed him to maintain control of the Cicero web site. The claimant was an employee and not an owner of the company. . . . The claimant's actions in refusal to sign the employment contract initiated the severing of the employee/employer relationship. There is no evidence of significant changes in his employment status. The claimant could have remained employed with the company if he would have signed the employment contract. The claimant has not shown good cause for voluntarily leaving his job.

On March 9, 2011, the Board affirmed the Tribunal's decision. This appeal followed.

On appeal, Bradshaw argues that he was terminated from his employment due to his refusal to sign a contract that stripped him of rights obtained in a previous oral agreement. Additionally, he maintains that leaving his employment rather than accepting the unfair terms of the contract constituted good cause related to work. We are not persuaded by these arguments.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting 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 citations 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, 71 (1985) (quoting Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).

The purpose of this State's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (citations omitted). 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). While the statute does not define "good cause," it has been construed to require more than mere dissatisfaction with working conditions.

In scrutinizing an employee's reason for leaving, the test is one of ordinary 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.

[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal citations omitted).

Additionally, "good cause" has been defined by regulation 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." N.J.A.C. 12:17-9.1(b). 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).

In essence, in determining whether the employee voluntarily left work for a work-related good cause, 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) (citation omitted). Clearly, such a test is fact sensitive. See Utley v. Bd. of Review, 194 N.J. 534, 550 (2008). As a result, when an agency's findings of fact are challenged on appeal, we will defer to its findings so long as there is credible evidence in the record to support them. Brady, supra, 152 N.J. at 210.

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 Bradshaw resigned from his position because he was dissatisfied with the final offer the employer made, which rejected Bradshaw's request for additional and different compensation terms. See DeSantis v. Bd. of Review, 149 N.J. Super. 35, 38 (App. Div. 1977) ("Absent a contractual obligation on the part of the employer with respect to salary increments . . . an employee's frustration caused by not receiving an expected pay raise does not constitute good cause [for leaving employment] within the statutory intendment."). Despite Bradshaw's claims that during the negotiations the employer had agreed to and later reneged on better terms, no final written agreement had been reached. Moreover, while Bradshaw might have been unhappy with the employer's final offer, it did not reduce his compensation or significantly change his work conditions or assignment. Hence, Bradshaw had failed to carry his burden of proving that he did what was reasonable and necessary to remain employed.

1 These rights would entitle Bradshaw to a percentage of profits from the sale of the company. The length of time Bradshaw had to exercise the rights was in dispute.