LAUREN J. MCDONOUGH v. BOARD OF REVIEW DEPARTMENT OF LABOR AND UNITY BANK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LAUREN J. MCDONOUGH,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND UNITY BANK,

Respondents.

___________________________

January 28, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Board of Review, Department of Labor, Docket No. 264,239.

Lauren J. McDonough, appellant pro se.

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

Respondent Unity Bank has not filed a brief.

PER CURIAM

Appellant Lauren J. McDonough appeals from the August 7, 2012 final decision of the Board of Review (Board), which affirmed the November 10, 2010 decision of the Appeal Tribunal that appellant was disqualified from receiving benefits under N.J.S.A. 43:21-5(a) as of May 3, 2009, because she left her employment at respondent Unity Bank voluntarily without good cause attributable to the work. We affirm.

From February 23, 2009 to April 29, 2009, appellant was employed as junior counsel by Unity Bank. On April 29, 2009, she verbally resigned, effective May 8, 2009. Following an exit interview on April 29, 2009, appellant sent an email to her supervisor confirming her resignation and citing dissatisfaction and frustration with her position as her reasons for resigning. Appellant specifically stated:

I initially came to you to discuss my dissatisfaction and frustration a few weeks ago. However, I feel not much has changed since we last spoke of these issues. Since nothing was changing I felt this job was not the right place for me.

. . . .

When I told Keith about my leaving, he said it is the norm to offer 2 weeks to wind down your duties with the Bank. Then as we discussed it Keith and I agreed that my last day would be the end of next week, May 8. I thought leaving May 8, I could comfortably speak with outside counsel, transfer my work, and just keep everything in order while I wind down my affairs. . . . I have not formally submitted my letter of resignation but the agreement was May 8 and I believe I should be compensated through said date.

Unity Bank accepted appellant's resignation as of April 29, 2009.

On November 15, 2009, appellant applied for unemployment benefits. The Deputy Director found her eligible for benefits without disqualification from November 15, 2009. On December 17, 2009, Unity Bank appealed, contending that appellant left work voluntarily without good cause attributable to the work. Unity Bank was unable to participate in the hearing on February 26, 2010 because the State office was closed due to inclement weather. As a result, on March 31, 2010, the Appeal Tribunal dismissed the appeal without prejudice. On April 1, 2010, Unity Bank requested to reopen the matter.

For good cause shown, on October 26, 2010, the Appeal Tribunal reopened the matter. At the hearing on November 9, 2010, appellant, represented by counsel, testified she was terminated for no reason. Unity Bank's Senior Vice President testified that appellant advised him she was resigning because she was unhappy and uncomfortable with the position. Appellant's April 29, 2009 email was admitted into evidence.

Based on the evidence presented, the Appeal Tribunal found appellant disqualified for benefits for the following reasons:

The claimant verbally resigned on 04/29/09 effective 05/08/09, the employer chose to accept that resignation as of 04/29/09. It was the claimant who initiated the action which eventually [led] to the separation. Therefore, this will be reviewed as voluntarily leaving.

. . . .

The claimant[']s testimony that she was terminated for no reason is clearly refuted by her written response to the employer's exit interview and is therefore rejected as not credible and an attempt to justify benefit entitlement. The claimant has not presented any testimony [regarding] her frustration and dissatisfaction with the job nor [that] her animosity between the claimant and fellow workers were abnormal or had any affect upon her health. Therefore, the claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 05/03/09 in accordance with [N.J.S.A.] 43:21-5(a).

The Board accepted these findings and affirmed. The Board also found that Unity Bank had submitted a timely request to reopen the matter. 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.

"The underlying purpose of the Unemployment Compensation Law 'is to provide some income for the worker earning nothing because he is out of work through no fault or act of his own.'" Futterman v. Bd. of Review, 421 N.J. Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady, supra, 152 N.J. at 212) (internal quotation marks omitted). A person 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 eight 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; 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)). "[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.

Here, appellant left her job because she was dissatisfied. This was a personal reason, not a reason so compelling that appellant had no choice but to leave her job. The Board's determination that appellant 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.