JAMES R. CALDERON v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0548-05T10548-05T1

JAMES R. CALDERON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and CONTINENTAL

AIRLINES, INC.,

Respondents.

___________________________________________________

 

Submitted October 25, 2006 - Decided November 8, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Final Decision of the Board of Review, Docket No. BR 78,717.

James R. Calderon, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent, Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Pamela E. Gellert, Deputy Attorney General, on the brief).

Respondent Continental Airlines, Inc. did not file a brief.

PER CURIAM

In this appeal, James R. Calderon contends that he was erroneously refused unemployment benefits. The Board of Review rejected his application and we affirm.

N.J.S.A. 43:21-5(a) disqualifies a claimant "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 four weeks in employment . . . and has earned at least six times the individual's weekly benefit rate." An employee who has left work voluntarily has the burden of proving that he or she did so with good cause attributable to the work. Morgan v. Board of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). We have observed that "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. Board of Review, 192 N.J. Super. 284, 287 (App. Div. 1983). In defining the circumstances which meet that requirement, we have said:

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

[Id. at 288 (citations omitted).]

This test is fact-sensitive. As a result, when its findings of fact are challenged on appeal, we will defer to the agency so long as there is credible evidence in the record to support its findings.

Calderon claimed that he resigned his position because of harassment from his direct supervisor. The record indicates that Calderon had asserted that, between June and September 2004, his supervisor engaged in "harassment and sabotage" of which he complained to upper management. Calderon acknowledged that his complaint was resolved and the supervisor's harassment subsided. He asserted, however, that the supervisor resumed her harassment of him in February 2005, causing him to resign. Calderon testified that he did not want to pursue a complaint with upper management again because it had taken three months to resolve his previous complaint.

In concluding that Calderon's circumstances disqualified him from receiving benefits, the appeals examiner, whose findings were affirmed by the Board of Review, concluded that "the fact that [Calderon] failed to make his employer aware of his grievance prior to leaving and in view of the employer's history in handling previous complaints from [Calderon], it is considered that [Calderon] did not exhaust all opportunities for relief from the conditions of employment that caused him to leave work." As a result, the agency concluded that Calderon's claim did not support a finding that the alleged harassment created "intolerable and abnormal working conditions." Associated Utility Servs. v. Board of Review, 131 N.J. Super. 584, 589 (App. Div. 1974). Instead, the agency determined that Calderon's evidence only suggested "mere animosity between a claimant and fellow workers," which, "whether real or imagined, does not constitute good cause for leaving work voluntarily." The evidence in the record fully supports the agency's analysis of Calderon's claim and the determination that he was disqualified from receiving benefits.

In reviewing the agency's findings, it is important to stress that the role of an appellate court in such a matter is not to substitute its judgment for that of the agency, but to defer to the agency's findings when they find support in the credible evidence in the record and to defer to the agency's judgment so long as it is not arbitrary, capricious or unreasonable. Brady v. Board of Review, 152 N.J. 197, 210 (1997); Mullarney v. Board of Review, 343 N.J. Super. 401, 406 (App. Div. 2001). Having carefully reviewed the record in light of the contentions on appeal, we conclude that the agency's findings were fully supported by the record and that there was nothing arbitrary, capricious or unreasonable about the denial of benefits in this case.

Affirmed.

 

We also observe that Calderon's claim that he suffered emotional distress as a result of the supervisor's alleged harassment was not supported by medical evidence.

(continued)

(continued)

5

A-0548-05T1

November 8, 2006