RAYMOND F. MOLLICA v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2725-08T12725-08T1

RAYMOND F. MOLLICA,

Appellant,

v.

BOARD OF REVIEW and JACK DANIELS OF UPPER SADDLE RIVER, INC.,

Respondents.

________________________________

 

Argued October 7, 2009 - Decided

Before Judges Cuff and C.L. Miniman.

On appeal from the Board of Review, Department of Labor, Docket No. 200,563.

Raymond F. Mollica, appellant, argued the cause pro se.

Ellen A. Reichart, Deputy Attorney General, argued the cause for respondent Board of Review (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Reichart, on the brief).

Respondent Jack Daniels of Upper Saddle River, Inc. has not filed a brief.

PER CURIAM

Appellant Raymond F. Mollica appeals the final agency action by the Board of Review affirming the determination of the Deputy Director, Division of Unemployment Insurance, that Mollica was disqualified for benefits from May 11, 2008. Under our limited scope of review, we affirm.

At the hearing conducted by the Appeals Examiner on Novem ber 17, 2008, only Mollica testified. The issue to be resolved was whether Mollica voluntarily left his employment with Jack Daniels Motors of Upper Saddle River, Inc. (Jack Daniels Motors). Mollica began to work for Jack Daniels Motors in February 2008, and his last day of employment was May 14, 2008. He worked about fifty hours per week and earned $250 per week plus commissions. He testified that he quit for cause.

Mollica explained that he had eighteen years experience sell ing cars and that he worked for Bravo between 1998 and 2006 earning $85,000 per year. He then worked for Landrover in Paramus where he earned $1,100 to $1,200 per week. When he took the job with Jack Daniels Motors, he was told that he could earn $50,000 to $60,000 the first year, which was what he used to make. How ever, once he had been on the job for two months, he realized he was never going to earn $50,000 in his first year because of the number of cars and salespeople they had and the preference given to longer-term salespeople.

Mollica explained that the dealership was selling fifteen to fifty cars at retail per month and, although it sold used and leased cars, the dealership did not tell him that these sales were handled in separate departments, lowering his oppor tunity to sell cars. Also, they had six to eight salespeople, one who had been there twenty-seven years and another who had been there four to eight years, and they were selling twenty to twenty-five cars per month between them. This left only thirty cars available for the other four to six salespeople and all the bonuses were based on selling eleven cars per month. None of the salespeople made the kind of money represented to him. He had been making $600 to $1700 commissions on Range Rovers and was only earning $100 to $200 commissions on Audis.

Because he could not pay his bills and had three young chil dren to support, he was forced to quit and had to take an early retirement and find another part-time job. He asked Jack Daniels Motors to put him on part-time employment, but his employer refused. He admitted to the Appeals Examiner that working part-time allowed him to spend more time with his family, but denied that was a reason for quitting and claimed that he would have continued working if he had been earning what he was accustomed to earn.

Mollica also related that Jack Daniels Motors had agreed that he could work his own deals, i.e., negotiate price with the customer without having to secure price approval from a manager. However, his employer breached that promise once he was working for it. He also expressed that he did not think it was fair for a person who had been earning $85,000 to only be earning $30,000 especially when one of the other salesman who had only one year of experience was earning $24,000.

On September 15, 2008, the Deputy Director found that Mollica "voluntarily quit [his] job on [May 15, 2008,] for personal rea son. [He] wanted to restrict [his] hours to working part-time to spend more time with [his] family[.] Also [he] was given a pay plan and being paid in accordance with [his] terms of hire." The Deputy Director therefore concluded Mollica's "reason for leaving does not constitute good cause attributable to the work." Mollica was disqualified for benefits under N.J.S.A. 43:21-5 from May 11, 2008, until he "worked in four or more weeks in employment and [had] earned at least six times [his] weekly benefit rate."

Mollica timely appealed to the Appeal Tribunal and the Appeals Examiner found that "the claimant left the work volun tarily because the employer would not grant his request for a part-time schedule to allow him to look for other work. The claimant was dissatisfied with his opportunity to earn commissions." The Appeals Examiner issued the following opinion:

N.J.S.A. 43:21-5(a) provides that a claimant will be indefinitely disqualified for benefits if someone voluntarily leaves work without good cause attributable to such work.

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 compel ling, is subject to disqualification. Self v. [Bd.] of Review, 91 N.J. 453 (1982).

The claimant's leaving of work because the employer refused a schedule change to part[-]time hours because he wanted to look for other work is a personal one. There fore, the claimant is disqualified for bene fits as of 5/11/08, under N.J.S.A. 43:21-5(a), as the claimant left work voluntarily without good cause attributable to such work.

Mollica further appealed to the Board of Review, which affirmed the decision of the Appeal Tribunal on January 15, 2009, on the basis of the record below without need for any further hearing as he had been "given a complete opportunity to offer any and all evidence." This appeal followed.

Mollica contends he left his employment because his employer deceived him about the amount of money he would earn and the manner in which he would be permitted to negotiate sales. He relies on Rider College v. Board of Review, 167 N.J. Super. 42, 47 (App. Div. 1979), for the proposition that "there may be situations where a voluntary quit to take a better position because of factors related to the work would constitute good cause attributable to the work," and asserts that it applies to him.

Appellate courts have a limited role in reviewing the deci sions of administrative agencies. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Courts will not reverse an agency deci sion unless it is "'arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 391 (1983)). In deciding whether an agency ruling is supported by substantial, credible evidence, we are obligated to accord deference to administrative agency fact-finding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See Goodman v. London Metals Exch., Inc., 86 N.J. 19, 29 (1981) (declining to reverse because, even though review of record would have led to different factual conclusions, agency's factual findings were supported by sufficient credible evidence in the record). If we find sufficient credible competent evi dence in the record to support the agency's conclusion, then we must uphold the agency's findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Goodman, supra, 86 N.J. at 29.

Thus, an administrative agency's decision may be disturbed only where it can be demonstrated that its decision is arbitrary or capricious, unsupported in the record, or in violation of express or implicit legislative policies. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978). In Worthington v. Fauver, 88 N.J. 183 (1982), the Court stated:

"Arbitrary and capricious action of adminis trative bodies means willful and unreasoning action, without consideration and in disre gard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due considera tion, even though it may be believed that an erroneous conclusion has been reached."

[Id. at 204-05 (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)).]

The New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, provides that an individual 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 four weeks in employ ment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .

[N.J.S.A. 43:21-5(a).]

The statutory scheme outlined by the Legislature envisions that unemployment compensation benefits be paid only to those individuals who have become unemployed through no fault of their own. Medwick v. Bd. of Review, 69 N.J. Super. 338 (App. Div. 1961). Unemployment benefits are designed to "ameliorate the impact of involuntary unemployment." Sweeney v. Bd. of Review, 43 N.J. 535, 539 (1965). The Board of Review is obligated to preserve the fund against the claims of those not intended to share in its benefits. Schock v. Bd. of Review, 89 N.J. Super. 118, 125 (App. Div. 1965), aff'd, 48 N.J. 121 (1966).

Mollica had the burden of proving to the agency that he resigned for good cause attributable to the work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962); see also Self v. Bd. of Review, 91 N.J. 453, 457 (1982) ("The effect of the 1961 amendment was to eliminate the eligibility of persons who leave work for good, but personal, causes."); Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967) ("good cause" for leaving work must be "attributable to such work"). We have stated that "[w]hile 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) (citing Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978) (internal quotations omitted)). We also stated that "[i]n scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. . . . [I]t is the employee's responsibility to do what is necessary and rea sonable in order to remain employed." Id. at 288. The public policy behind the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, is to provide "protection against the hazards of economic insecurity due to involuntary unemploy ment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989).

If the employee voluntarily quits for personal reasons, bene fits are not available. Self, supra, 91 N.J. at 460 (holding that difficulty in getting to work was not good cause attributable to the work); Roche v. Bd. of Review, 156 N.J. Super. 63, 65 (App. Div. 1978) (holding that absence from work due to home living situation disqualifies one from receiving benefits). On the other hand, where the unemployment is the direct result of the employer's conduct rather than the claimant's own choice or personal decision, then, "as a matter of law, the unemployment must be seen to be attributable to the work." Gerber v. Bd. of Review, 313 N.J. Super. 37, 39 (App. Div. 1998).

[A] case raising a genuine issue generally of the type involved here must be evaluated by weighing the extent to which the employee's reasons for leaving the job stemmed from a reasonable response to the employer's conduct against the extent to which those reasons bespoke purely personal choices made by the employee, i.e., not rea sonably related to the conditions of employment alone.

[Rolka v. Bd. of Review, 332 N.J. Super. 1, 5 (App. Div. 2000).]

"We have consistently held that causes personal to a claimant and not attributable to the work come within the disqualifica tion of the statute." Rider Coll., supra, 167 N.J. Super. at 46; White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977); Stauhs, supra, 93 N.J. Super. at 457-58; Zielenski v. Bd. of Review, 85 N.J. Super. 46, 53-54 (App. Div. 1964).

Mollica had a duty to remain employed at the lower rate of pay provided by Jack Daniels Motors until he could secure other, more remunerative employment. Goebelbecker v. State of N.J., Bd. of Review, 53 N.J. Super. 53, 59 (App. Div. 1958). Rider College provides no comfort to Mollica. The employee there left Rider College on the expectation of a better-paying position in Wisconsin. Rider Coll., supra, 167 N.J. Super. at 45. He went to Wisconsin, discovered the cost of housing was greater than he expected to pay, and returned to New Jersey after four days. Ibid. He did not apply to Rider for his former position, even though it had not been filled. Ibid. His application for unem ployment benefits was denied. Ibid. The Board of Review found the employee qualified for benefits and Rider College appealed. We reversed, concluding:

The advantages and disadvantages in the position offered at Carthage College may have constituted sufficient reason to moti vate claimant to voluntarily quit Rider Col lege, journey to Wisconsin and within four days return to New Jersey. However, those reasons are personal and in no way related to claimant's employment for Rider College.

[Id. at 48.]

Although Mollica's chagrin over discovering the misrepre sentations made about his expected remuneration are understand able, which would undoubtedly have constituted good cause to secure other employment, his decision to take early retirement and look for part-time work was purely voluntary and personal; it was inconsistent with his duty to remain employed.

Affirmed.

(continued)

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A-2725-08T1

December 22, 2009