TONI L. LICCIARDELLI v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3109-16T2

TONI L. LICCIARDELLI,

        Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF
LABOR and DOUGLAS A. BAKER, ESQ.,

     Respondent-Respondents.
___________________________________

              Submitted March 13, 2018 – Decided May 9, 2018

              Before Judges Mawla and DeAlmeida.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 093,552.

              Toni L. Licciardelli, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Daniel Pierre, Deputy Attorney
              General, on the brief).

              Respondent Douglas A. Baker has not filed a
              brief.

PER CURIAM

        Petitioner Toni L. Licciardelli challenges a Board of Review

(Board)      decision    affirming     an   Appeal    Tribunal     determination
disqualifying her from unemployment compensation benefits.             We

affirm.

                                   I.

     The record shows that petitioner began her employment as a

legal secretary with the Law Office of Douglas A. Baker, a solo

practitioner, on August 17, 1997.        Petitioner's last day in the

office was November 27, 2015, a Friday. From the following Monday,

November 30, 2015, to December 4, 2015, petitioner texted her

employer every day to call out sick from work.         On December 5,

2015, petitioner was hospitalized.       She contended that her spouse

contacted her employer to inform him of the hospitalization. Baker

denied having been contacted by petitioner, or her spouse after

December 4, 2015.      According to Baker, petitioner and her family

provided no information with respect to petitioner's illness,

expected period of recovery, or the anticipated date on which she

would be able to return to work.

     Petitioner was discharged from the hospital on December 11,

2015, after which she applied for disability benefits. On December

21, 2015, petitioner and her spouse visited Baker to retrieve the

employer's   portion    of   her   disability   benefits   application.

Petitioner, when asked, did not provide Baker with a date on which

she expected to return to work.         She instead indicated that her

absence would be indefinite. Baker handed petitioner the completed

                                    2                           A-3109-16T2
employer portion of the disability benefits application, along

with the personal effects she left at the office because he did

not know if or when petitioner might be returning.                     Baker asked

petitioner for her copy of the office key, as he needed to give

it to the secretary who was completing petitioner's work in her

absence.   Baker did not inform petitioner that she was terminated.

According to Baker, this was the last contact that he had with

petitioner     or    her   family    until     her   disability      benefits   were

exhausted,     and    he    was     informed    that    she    had    applied    for

unemployment benefits.

      Petitioner asserts that she was able to return to work as of

June 1, 2016.         She testified at the tribunal hearing that she

called her employer on June 1, 2016, and June 3, 2016, to ask if

Baker had work available for her, or, if no work was available,

whether she could list Baker as a reference.                  Baker denies having

been contacted by petitioner. Petitioner provided no proof, beyond

her testimony, of having left messages for her employer on those

dates.   Although petitioner had Baker's personal cellphone number,

she admitted that she did not attempt to contact him on that line,

the office phone, or his cellphone when she did not receive a

response to her messages.

      Petitioner applied for unemployment benefits on June 5, 2016.

The   Deputy        Director      initially     determined       petitioner      was

                                         3                                  A-3109-16T2
disqualified for benefits from December 6, 2015, because she

voluntarily left her employment on that date without good cause

attributable to the work.    The Deputy Director determined that

petitioner failed to provide her employer with medical documents

indicating a date on which she would return to work, and failed

to keep in contact with her employer about preserving her position

for her eventual return to work.     Petitioner appealed the Deputy

Director's decision.

     The Appeal Tribunal conducted telephone hearings on two days.

In a November 16, 2016 decision the Appeal Tribunal determined

that petitioner failed to produce credible evidence that she

contacted her employer on June 1, 2016, and June 3, 2016, to report

that she was available to work.       The Appeal Tribunal rejected

petitioner's contention that she reasonably believed that she was

terminated on December 21, 2015, because she conceded that she did

not ask her employer at that time whether she had been terminated.

The Appeal Tribunal also noted her claims to have contacted her

employer in June 2016, belie a belief that she had been terminated

in December 2015.   The Appeal Tribunal determined that petitioner

was ineligible for benefits as of May 29, 2016.

     The Board considered and adopted the findings of fact and

opinion of the Appeal Tribunal, and, on February 2, 2017, affirmed

the Appeal Tribunal decision.   This appeal followed.

                                 4                          A-3109-16T2
      On    appeal,    petitioner      challenges        the    Board's     decision,

arguing that the record establishes that Baker terminated her from

her position on December 21, 2015, when he demanded the office key

and returned her personal belongings.                She also raises procedural

arguments     based    largely   on    Baker's       requests      to   postpone    the

hearings before the Appeal Tribunal.

                                        II.

      Our     review   of   decisions        by    administrative       agencies     is

limited,      with    petitioners      carrying      a   substantial       burden    of

persuasion.      In re Stallworth, 
208 N.J. 182, 194 (2011); Brady v.

Bd. of Review, 
152 N.J. 197, 218 (1997). An agency's determination

must be sustained "'unless there is a clear showing that it is

arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record.'"         Russo v. Bd. of Trs., Police & Firemen's

Ret. Sys., 
206 N.J. 14, 27 (2011)(quoting In re Hermann, 
192 N.J.
 19,   27-28    (2007)).      "[I]f     substantial          evidence    supports    the

agency's decision, 'a court may not substitute its own judgment

for the agency's even though the court might have reached a

different      result[.]'"        In    re        Carter,    
191 N.J.   474,     483

(2006)(quoting Greenwood v. State Police Training Ctr., 
124 N.J.
 500, 513 (1992)).       The burden of proof rests with the employee to

establish a right to collect unemployment benefits.                        Brady, 
152 N.J. at 218.

                                         5                                    A-3109-16T2
      Under     
N.J.S.A.   43:21-5(a),   a    person   is   ineligible   for

unemployment benefits if he or she leaves work voluntarily, without

good cause attributable to the work. 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."

"The decision to leave employment must be compelled by real,

substantial and reasonable circumstances not imaginary, trifling

and whimsical ones."       Domenico v. Bd. of Review, 
192 N.J. Super.
 284, 288 (App. Div. 1983).      Further, "'[m]ere 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.'"      Ibid. (quoting Medwick v. Bd. of Review, 
69 N.J.

Super. 338, 345 (App. Div. 1961)).           A petitioner who leaves work

for a personal reason, no matter how compelling, is subject to

disqualification.     Self v. Bd. of Review, 
91 N.J. 453, 460 (1982).

      The record contains substantial credible evidence supporting

the   Board's    conclusion   that   petitioner    voluntarily    left   her

employment on December 21, 2015, when she applied for disability

benefits without providing her employer with a date, or estimated

date, on which she expected to return to work.              She thereafter

failed to keep her employer apprised of the progress of her

recovery.     Although Baker disputes having received voice messages

                                     6                              A-3109-16T2
purportedly left by petitioner on his office phone in June 2016,

even under petitioner's recitation of the facts, she did not

contact her employer for nearly six months seeking to return to

work.   Petitioner's acts are not consistent with those of an

employee who took the steps necessary to preserve her position

while absent for medical reasons.

     The   record   also   supports   the    Board's   determination      that

petitioner was not terminated on December 21, 2015.             Petitioner

produced   no   evidence   that   Baker     informed   her   that   she   was

terminated on that date.       The evidence supports the conclusion

that Baker returned petitioner's personal items, and requested her

office key, because she did not provide a date on which she

expected to return, leaving Baker with no idea when, or if,

petitioner would be available to work.         In addition, as the Appeal

Tribunal aptly noted, petitioner's purported calls to Baker in

June 2016 to express her availability to work contradict her

contention that she was terminated by Baker in December 2015.

     Petitioner has not established that the Board's decision was

arbitrary, capricious, or unreasonable.          Russo, 
206 N.J. at 27.

To the extent we have not directly addressed any of petitioner's

contentions, we find they are without merit sufficient to warrant

discussion in a written opinion.          R. 2:11-3(e)(1)(E).

     Affirmed.

                                      7                              A-3109-16T2
8   A-3109-16T2