GIANA M. WILSON v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE AND DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2123-12T1

GIANA M. WILSON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND WORKFORCE AND

DEVELOPMENT, and JOYCE

LESLIE, INC.,

Respondents.

________________________________________________________________

Argued March 19, 2014 Decided May 16, 2014

Before Judges Lihotz and Maven.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket Nos. 346,575 and 380,916.

Giana M. Wilson, appellant, argued the cause pro se.

Arupa Barua, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Donna Arons, Deputy Attorney General, on the brief).

Respondent Joyce Leslie, Inc., has not filed a brief.

PER CURIAM

In these consolidated appeals, appellant Giana M. Wilson challenges the July 13 and December 11, 2012 final decisions of the Board of Reviewaffirming the determinations of the Appeal Tribunal disqualifying her from the receipt of unemployment compensation benefits because she left work "voluntarily without good cause attributable to such work," N.J.S.A.43:21-5(a), and required her to make repayment of the benefits paid for which she was not entitled. N.J.S.A.43:21-16(d). Our examination of the record, in light of our standard of review, satisfies us the Board's final decisions were properly premised upon facts in the record and consistent with relevant statutory provisions. Accordingly, we affirm.

After the Deputy of the Division of Unemployment and Disability Insurance (Deputy) awarded Wilson unemployment benefits, her employer, Joyce Leslie, Inc., appealed the determination to the Appeal Tribunal. At the hearing conducted on March 21 and 22, 2012, the Appeals Examiner heard testimony from Wilson; and representatives of Joyce Leslie; Connie Laarendi, the district manager and Marilyn Rosa, the store manager.

It is undisputed Wilson was employed by Joyce Leslie from October 2007 until June 22, 2011. She was hired initially as a sales associate, and eventually attained the position of assistant manager in training.

Rosa testified Wilson, who had only been at the Glassboro store for a short period of time, approached her complaining that she was not making enough money and that she was giving her two weeks' notice. Rosa explained Wilson expressed concern for her sick father and wanted to spend time with her family. Rosa called the district office and spoke to Laarendi informing her of the conversation with Wilson. Rosa had no other involvement thereafter.

Laarendi explained after receiving Rosa's phone call, she contacted the home office which authorized her to extend an offer to Wilson to induce her to stay. Laarendi then spoke to Wilson offering her a salary increase, medical benefits, and an assistant manager position in the Mays Landing store, with an assistant manager bonus. Laarendi recalled Wilson expressed interest in the offer; however, she conditioned her acceptance on receiving an additional week of vacation time. Laarendi told her the vacation request could not be accommodated because she had already exhausted all of her allowed vacation time. Thereafter, Laarendi accepted Wilson's resignation and terminated her employment.

Wilson denied resigning from her position but admitted she told her store manager "if it is impossible to give me a raise then I would start looking for another job[.]" That same day, Wilson spoke to Laarendi who indicated she would contact the owner of the company to discuss the possibility of a raise for her. When Laarendi contacted her five days later, she offered her what amounted to a $1.00 per hour increase, but did not offer medical benefits, a bonus or a full assistant manager position. Wilson admitted she first requested the additional week of vacation, and then asked for fewer days; however, all requests for time off were denied.

Based on the testimony, the Appeals Examiner found the employer more credible, and concluded Wilson gave her employer notice of her resignation because she did not get a satisfactory raise, and that Wilson refused the offer because "she wanted additional vacation time, so she can spend it with her family." Thus, the Appeals Examiner found Wilson's termination "was for purely personal reasons, unrelated to the work itself." Based on those facts, the Appeal Tribunal determined Wilson was disqualified for benefits pursuant to N.J.S.A.43:21-5(a), because she resigned her position without good cause attributable to her employment. The Board, deferring to the tribunal's credibility determinations, adopted its findings. Since assessing credibility is what forms the basis of the factual findings The Board adopted the tribunal's findings, including its credibility determinations. After her disqualification, Wilson received a Request for Refund of Unemployment Benefits, advising her that she must return the benefits she had already received in accordance with N.J.S.A.43:21-16(d).

Wilson appealed the final decision and denies she voluntarily resigned her employment. Rather she claims she was forced to leave the job because the employer refused to sufficiently compensate her to cover the costs for the additional time, travel, and maintenance of her vehicle caused by traveling to her designated store. She contends she was assigned to work in stores located further from her home than other stores, resulting in additional travel that "adversely affected her living conditions." She contends she is entitled to receive unemployment compensation benefits. We do not agree.

Any examination of the basis for an employee's departure is fact-sensitive. As a result, when the agency's findings of fact are challenged on appeal, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a strong presumption of reasonableness. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J.384, 390-91 (1983). In our limited review, we will not disturb an agency's decision unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J.197, 210 (1997); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964). Further, we defer to credibility determinations made by the factfinder. Close v. Kordulak Bros., 44 N.J.589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

In order to avoid disqualification under N.J.S.A.43:21-5(a), a claimant must demonstrate that the reason for leaving was work-connected. A claimant who leaves work for a personal reason, no matter how compelling, is subject to disqualification. Self v. Bd. of Review, 91 N.J.453 (1982); see alsoMorgan v. Bd. of Review, 77 N.J. Super.209, 213 (App. Div. 1962) ("The burden of proof is upon the claimant to establish that her voluntary separation from her employment was for good cause attributable to such work.").

In this matter, the credible evidence demonstrates the employer responded to Wilson's resignation notice by offering her a raise if she stayed. Wilson, however, made an additional request for vacation time to which she was not entitled. The employer could not accept the additional demand and acted on her previous notice, terminating her employment.

We have previously held that frustration in not receiving a pay raise, DeSantis v. Bd. of Review, 149 N.J. Super. 35, 38 (App. Div. 1977), or the "[m]ere dissatisfaction with working conditions which are not shown to be abnormal or affect health, do[] not constitute good cause for leaving work voluntarily." Zielenski, supra, 85 N.J. Super.at 54 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). In this matter, Wilson's dissatisfaction with her work assignments and compensation resulted in a chain of events for which she is solely responsible, beginning with her announcement to the store manager that she would be looking for another job and ending with her termination when she sought additional vacation time.

Giving due regard to the Appeals Examiner, who had the opportunity to assess the credibility of appellant and her employer, we conclude the Board's decision to deny claimant benefits and to require repayment of the benefits received is supported by substantial, credible evidence. The governing statute, N.J.S.A.43:21-5(a), provides that a claimant may not receive benefits if he or she "has left work voluntarily without good cause attributable to such work." Although the statute does not define "good cause," courts have construed it to mean "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Condo v. Bd. of Review, 158 N.J. Super.172, 174 (App. Div. 1978). Accordingly, we respect the Board's expertise and defer to its considered determination. Karins v. City of Atl. City, 152 N.J.532 (1998). These findings are supported by substantial, credible evidence in the record. Further, appellant has not shown the decision based on those facts was arbitrary, unreasonable, or capricious. Brady, supra, 152 N.J. at 210.

We also agree that appellant must refund the unemployment benefits that were erroneously paid to her. N.J.S.A. 43:21-16(d)(1) requires the full repayment of unemployment benefits received by any individual who was not entitled to receive the benefits regardless of the reason for the overpayment.

More importantly, the Division of Unemployment and Temporary Disability Insurance is required by regulations to issue a demand for a refund of improperly paid benefits whenever a determination of overpayment is made. N.J.A.C. 12:17-14.1. Except in cases of fraud, the Division must seek refunds "before four years have elapsed from the time the benefits in question were paid." N.J.S.A. 43:21-16(d)(1); see also N.J.A.C. 12:17-14.1. Here, the refund demand was timely and appellant admitted receipt of benefits in the amount of $10,868.

Finally, in Bannan v. Bd. of Review, 299 N.J. Super. 671 (App. Div. 1997), this court recognized that the recovery of such benefits "furthers the purpose of the unemployment compensation laws," and that "[t]he public interest clearly is not served when the Unemployment Trust Fund is depleted by the failure to recoup benefits erroneously paid to an unentitled recipient, however blameless he or she may have been." Id. at 674. Consequently, we conclude the Board's decision requiring appellant to repay the benefits was neither arbitrary, capricious, nor unreasonable.

Appellant's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.