ANTHONY KELLY 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NOT FOR PUBLICATION WITHOUT THE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-1828-04T31828-04T3

ANTHONY KELLY,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

Respondent.

_____________________________________

 

Submitted November 7, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from a Final Decision of the Board of Review, Department of Labor, 36,044.

Anthony Kelly, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Anthony Kelly, appeals from a final determination of the Board of Review finding claimant ineligible for unemployment compensation benefits. We reverse. The following facts emerge from the July 30, 2004, telephone hearing in which the claimant was the only witness. Claimant began his employment with Logistics Management, Inc., in March 2003. His job was to obtain appointments with prospective customers. He worked with George Muha and Tim Walsh. Walsh was claimant's immediate supervisor. In September 2003, Muha accused claimant of making lewd remarks to his wife. After confronting claimant with the accusation respecting his wife, Muha and Walsh, with whom Muha had worked for six years, began to freeze claimant out.

Claimant's job was to make appointments, after which Muha and/or Walsh would visit the customer to secure business. According to claimant, Muha and Walsh would not report to claimant or advise him of the results of their appointments. Claimant was paid $38,000 per year plus commissions on his appointments. Without being advised of the result of the sales calls, claimant remained in the dark concerning his entitlement to commissions.

Claimant testified that Walsh sided with Muha and made life miserable at the office. Claimant eventually went outside the chain of command and telephoned Walsh's supervisor, Paul Forand, at the Massachusetts office to determine the status of his accounts. When Forand responded, claimant informed him of the communication barrier in the office. Forand then called Walsh to find out what the problem was. Thereafter, Walsh confronted claimant by yelling and screaming at him. Claimant testified, essentially, that Walsh continued to treat him disrespectfully at work, taking personal things out on him in a harassing manner. On April 16, 2004, a newly hired sales representative was invited to go to Las Vegas for a convention. According to claimant, the invitation to the newly hired employee was "the last straw." He was insulted and quit work.

The Appeal Tribunal determined that claimant was not eligible for benefits pursuant to N.J.S.A. 43:21-5(a) because he left his job voluntarily without good cause attributable to the work. The Appeal Tribunal found that claimant spoke to management a number of times to try to rectify his situation at work to no avail but nevertheless stayed and left his position only when he was not taken to the convention.

Claimant filed a timely appeal to the Board of Review and the Board affirmed the decision of the Appeal Tribunal. The Board of Review added that in November 2003 the employer denied claimant's request to fly to South Carolina for a business meeting. N.J.S.A. 43:21-5a provides in pertinent part:

An individual shall be disqualified for benefits: (a) 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 has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

Although the statute does not define "good cause," we have observed where the reason is "sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed," good cause exists. Doering v. Bd. of Review, 203 N.J. Super. 241, 245-246 (App. Div. 1985). The question to be answered is whether an individual who "leaves a job under the pressure of circumstances . . . may reasonably be viewed has having compelled" such action. Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 464 (1953).

Appellate courts have a limited role in reviewing decisions of an administrative agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); State-Operated Sch. Dist. of Newark v. Gaines, 309 N.J. Super. 327, 331 (App. Div.) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)), certif. denied, 156 N.J. 381 (1998). There should not be an independent assessment of the evidence by the appellate court. In re Taylor, 158 N.J. 644, 656 (1999). The appellate court must accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525; City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Thus, the determinations of the administrative agencies must be given great deference. State v. Johnson, 42 N.J. 146, 159 (1964).

Conversely, a reviewing court is not bound to uphold an agency determination unsupported by sufficient evidence. Henry, supra, 81 N.J. at 579-80. Courts are not to act simply as a rubber-stamp of an agency's decision where it is not supported by substantial credible evidence in the record as a whole or found to be arbitrary, capricious or unreasonable. Ibid.; Marro v. Dep't of Civil Serv., 57 N.J. Super. 335, 346 (App. Div. 1959). We cannot overturn an agency's decision that is based on sufficient evidence, even if this court would have reached a different result. Outland v. Bd. of Trs., 326 N.J. Super. 395, 400 (App. Div. 1999).

Applying these principles here, we are satisfied that the uncontroverted evidence established that claimant left because he was harassed by his immediate supervisor and treated in an unprofessional manner. Although his decision to leave followed the employer's decision to permit a newer employee to go to a convention, claimant made it clear that that incident was the last straw in a series of events that caused him to leave. The evidence established that he left work for good cause attributed to work, specifically, adverse treatment by his superiors.

The Appeal Tribunal's findings of fact and conclusions of law are sufficiently inconsistent with the unrebutted, competent, and credible evidence in the record to convince us that there was a manifest denial of justice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We are likewise convinced that the Board of Review mistakenly adopted the examiner's findings of fact and opinions.

 
Accordingly, we reverse.

Therefore, if, in reviewing an agency decision, an appellate court finds sufficient credible evidence in the record to support the agency=s conclusions, that court must uphold those findings even if the court believes that it would have reached a different result. Clowes v. Terminix Int=l, Inc., 109 N.J. 575, 588 (1988).

(continued)

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A-1828-04T3

November 16, 2005