PEGGY A. WILMORE v. BOARD OF REVIEW and UNITED STATES POSTAL SERVICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0628-10T4

PEGGY A. WILMORE,

Appellant,

v.

BOARD OF REVIEW and UNITED

STATES POSTAL SERVICE,

Respondents.

_______________________________

October 24, 2011

Argued October 11, 2011 - Decided

Before Judges A. A. Rodriguez and Fasciale.

On appeal from the Board of Review, Department of Labor, Docket No. 263,068.

Peggy A. Wilmore, appellant, argued the cause pro se.

George N. Cohen, Deputy Attorney General, argued the cause for respondent Board of Review (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Cohen, on the brief).

Respondent United States Postal Services has

not filed a brief.

PER CURIAM

Peggy A. Wilmore appeals from a final administrative order of the Board of Review (the Board), upholding a decision by the Appeal Tribunal, disqualifying Wilmore for unemployment compensation benefits because she left her job voluntarily without good cause attributable to her employment. We affirm.

The United States Postal Service employed Wilmore for twenty-six years. Wilmore contended that her supervisor "threatened to break my arm," and acted verbally and emotionally abusive to her. Wilmore argued that her supervisor attempted to "push old people out the door." Wilmore stated that she reported the abuse to the Postmaster of Newark and the union shop steward, but they took no action. Dissatisfied, Wilmore then accepted a retirement package and retired voluntarily on October 31, 2009. Wilmore s supervisor admitted that they worked together for approximately eight months, denied abusing Wilmore, and contended that Wilmore acted disrespectfully.

Wilmore filed a claim for unemployment benefits on November 1, 2009. Her claim was denied and Wilmore appealed. The Appeal Tribunal affirmed the denial of the claim and the Board subsequently affirmed on the basis of the Appeal Tribunal record. In its decision, the Appeal Tribunal explained that Wilmore was not entitled to unemployment benefits pursuant to N.J.S.A. 43:21-5(a). The statute states 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 . . . .

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

The term "good cause" is defined 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." N.J.A.C. 12:17-9.1(b). "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." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotation marks omitted).

The Appeal Tribunal conducted a telephonic hearing, listened to the testimony from Wilmore and her supervisor, and found that "[Wilmore] retired because she was under the impress[ion] that she could have been terminated in the future. The employer never advised [Wilmore, however,] that her job was in jeopardy." Wilmore then appealed to the Board, which reviewed the entire record and, "[o]n the basis of the [Appeal Tribunal] record," affirmed Wilmore's disqualification for unemployment benefits.

On appeal, Wilmore argues that she is entitled to unemployment benefits because she was "forced out of her job by being threatened with physical violence, and she feared for her personal safety." We disagree.

The role of this court in reviewing an administrative agency's final determination is exceedingly limited. In re Taylor, 158 N.J. 644, 656 (1999).

The scope of review of an administrative decision is the same as that [for] an appeal in any nonjury case, i.e., whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.

[Ibid. (internal quotation marks omitted).]

An appellate court is not permitted to "'engage in an independent assessment of the evidence as if it were the court of first instance.'" Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). If, in reviewing the agency s decision, this court finds sufficient credible evidence in the record and the inferences to be drawn therefrom, it must uphold the agency's decision even if the court would have reached a different result. Campbell v. N.J. Racing Comm n, 169 N.J. 579, 587 (2001); In re Taylor, supra, 158 N.J. at 657.

Therefore, this court will only disturb a final agency determination if it concludes that the decision was arbitrary and capricious. In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997) (citing Worthington v. Fauver, 88 N.J. 183, 204 (1982)). "'Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 201 (2001) (quoting Worthington, supra, 88 N.J. at 204-05); 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). There is a strong presumption of an agency's reasonableness. In re Holy Name Hosp., supra, 301 N.J. Super. at 295. The burden of showing that an agency determination was arbitrary and capricious is on the party challenging it. Ibid.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that Wilmore's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

After listening to the testimony from Wilmore and her supervisor, the Appeal Tribunal concluded that "[t]here is no evidence that [Wilmore] was forced out or that the conditions of employment were severe enough to join the high ranks of unemployed." The Board conducted its own review and agreed with the Appeal Tribunal. Neither the Board nor the Appeal Tribunal acted arbitrarily or capriciously, but rather concluded by substantial, credible evidence that Wilmore left her employment merely because she was dissatisfied with her job. Dissatisfaction is not "good cause."