MARIA R. ASENCIO v. BOARD OF REVIEW DEPARTMENT OF LABOR, and PHELAN HALLINAN amp; SCHMIEG, P.C

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4839-09T2

MARIA R. ASENCIO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and PHELAN, HALLINAN

& SCHMIEG, P.C.,

Respondents.

________________________________________________________________

April 13, 2011

Submitted February 15, 2011 - Decided

Before Judges Wefing and Koblitz.

On appeal from the Board of Review, Department of Labor, Docket No. 266,272.

Maria R. Asencio, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Kaufman Dolowich Voluck & Gonzo LLP, attorneys for respondent Phelan, Hallinan & Schmieg, P.C. (Michael J. Farrell, on the brief).

PER CURIAM

Maria R. Asencio appeals from a May 21, 2010, final agency decision of the Board of Review (Board), finding that she was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to her employment. We affirm.

Asencio began working in the title claims department of the law firm of Phelan Hallinan & Schmieg, L.L.C. (PHS) on March 2, 2009. She claims she was given a large amount of work and after five months was promoted to team leader of her department, a position of great responsibility but no salary increase. She worked long hours, for which she was paid on an hourly basis.

At her performance review, Asencio indicates that her supervisor rated her as only "satisfactory" and blamed her for "the lack of moral[e] and negativity in the department." Asencio, believing she was being used as a scapegoat, and that she was under too much stress given her medical condition, resigned her position on November 22, 2009, upon advice from her physician. She did not ever disclose any medical condition to her employer as she believed her employer would not keep the condition confidential.

Asencio said she had worked for thirty-three years in title work, but never for a law firm such as PHS that handled foreclosure matters. She testified that had she been given a raise, she would have remained on the job because she would have known that "all [her] hard work and [her] dedication was appreciated."

The Appeal Tribunal found that Asencio,

chose to leave the job after she became upset when her supervisor made comments during a performance review that she believed were harsh and unwarranted.

. . . .

An employer has a right to criticize an employee's performance. At her hearing the testimony of the claimant did show that she was unhappy when she was criticized about the department, however, she did not demonstrate that the employer's criticism was so severe or harsh as to give the claimant good cause for voluntarily leaving the job, at the time and under the circumstances that she did. Furthermore, the following day the claimant sent an e-mail to [her] superiors, explaining that [her supervisor] was the reason she would not return, rather than making the attempt to resolve her complaints against the supervisor and remaining at work. Additionally, the claimant did not present medical documentation that her health was affected by the working conditions.

The Board affirmed the decision of the Appeal Tribunal finding that Asencio left work voluntarily without good cause attributable to her employment. N.J.S.A. 43:21-5(a).

We review Asencio's contentions in accordance with our standard of review. The Board's determination that Asencio was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

An appellate court "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, we must uphold them. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

At the time Asencio's claim was denied, a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant is disqualified for benefits

[f]or 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 for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .1

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

While the statute does not define "good cause," the statute has been construed to require more than mere dissatisfaction with working conditions:

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 employment 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.

[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotation marks and citations omitted).]

"Good cause" is defined by regulation 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). Thus, an employee who quits a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a).

Under certain circumstances, an employee's departure from a job for health or medical reasons may constitute "good cause," and the employee will be entitled to benefits. Pursuant to N.J.A.C. 12:17-9.3 (a) and (b), effective January 1, 1975, if an employee's state of health or medical condition has a work-related origin or if an employee's pre-existing condition is aggravated by working conditions, and there is no suitable work for the individual given the condition, the employee will be eligible for benefits upon resignation. See Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971) (where the Court noted that "the aggravation of a preexisting condition would constitute good cause under [N.J.S.A. 43:21-5(a)]"); cf. Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457 (App. Div. 1967) (where we held that leaving work because it is detrimental to an existing physical condition or state of health that did not have a work-related origin is a personal reason that disqualifies the claimant from receiving unemployment compensation benefits). N.J.A.C. 12:17-9.3(d) provides that "[w]hen an individual leaves work for health or medical reasons, medical certification shall be required to support a finding of good cause attributable to work." Although Asencio testified that the working conditions exacerbated her pre-existing mental health condition, she did not provide any medical certification to that effect, nor seek any accommodation from her employer, precluding a finding of "good cause."

Moreover, a claimant who leaves work for a good but personal reason is subject to disqualification pursuant to N.J.S.A. 43:21-5(a). See Pagan v. Bd. of Review, 269 N.J. Super. 539, 542 (App. Div. 1997) (concluding that a claimant who left her job to relocate because she was being abused and harassed by her husband was ineligible for benefits); see also Rider College v. Bd. of Review, 167 N.J. Super. 42, 45 (App. 1979) (holding that leaving work to accept a substantially more favorable position is a personal reason that disqualifies the claimant from receiving unemployment compensation benefits).

Our decision in De Santis v. Bd. of Review, 149 N.J. Super. 35, 38 (App. Div. 1977), is applicable to the present appeal due to the factual similarities in the two cases. In De Santis, we held that an employee who left her job "because of her disappointment in not receiving a hoped-for raise" did not establish "good cause within the statutory intendment." Id. at 38. We found that, "[a]bsent a contractual obligation on the part of the employer with respect to salary increments, . . . an employee's frustration caused by not receiving an expected pay raise does not constitute good cause within the statutory intendment." Ibid. Asencio testified she would have stayed at the job had she been given a raise.

Thus, the record does not support Asencio's claim that the working conditions were so intolerable as to leave her no choice other than to resign. To the contrary, the record reveals that Asencio was disappointed with her evaluation and lack of raise, and her working conditions may have exacerbated a pre-existing health condition. She presented no evidence that the work environment was so abnormal or unusual that it forced her to quit, as was the case in Domenico, supra, 192 N.J. Super. at 288-90, where a musical therapist at a psychiatric hospital left her job after being assaulted by patients on two occasions because she feared that she would suffer additional physical harm if she remained in her employment.

The record supports the Board's conclusion that Asencio left her employment at PHS for personal reasons unrelated to the work itself, and she is therefore disqualified from receiving unemployment compensation benefits.

Affirmed.

1 The statute has since been amended to require the claimant to work for eight weeks in employment and earn at least ten times the individual's weekly benefit rate. L. 2010, c. 37. Those changes are not germane to this appeal.