PREFERRED PENSION PLANNING CORPORATION 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NOT FOR PUBLICATION WITHOUT THE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-3396-10T4

PREFERRED PENSION PLANNING

CORPORATION,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and MELYNIE S. POPE,

Respondents.

___________________________________

November 21, 2012

Submitted April 23, 2012 Decided

Before Judges A. A. Rodriguez, Ashrafi and Fasciale.

On appeal from the Board of Review, Department of Labor, Docket No. 287,993.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys for appellant (Richard J. Guss, on the brief).

Jeffrey Chiesa, Attorney General, attorney for Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel, Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Melynie S. Pope has not filed a brief.

PER CURIAM

Preferred Pension Planning Corporation (PPPC) appeals from a January 26, 2011 final agency decision of the Board of Review, Department of Labor (Board), finding that it discharged its employee Melynie S. Pope, thereby entitling her to unemployment benefits. We affirm.

On January 27, 2010, PPPC's president, business manager, and human resources director met with Pope to discuss her request to transfer from a full-time to part-time position. Pope informed them that if they did not permit a switch to part-time employment, she would continue working there for two to three months to train her replacement while seeking employment elsewhere. Shortly thereafter, PPPC produced a resignation form that provided Pope with three weeks' pay upon her "voluntary resignation." Pope signed the form that day, and was escorted to her vehicle immediately thereafter.

On May 16, 2010, Pope filed a claim for unemployment benefits. On June 17, 2010, the Division of Unemployment and Disability Insurance's Deputy Director found Pope eligible for benefits while "determin[ing] that [her] separation [wa]s a discharge rather than a voluntary leaving." PPPC then filed an internal appeal.

On July 22, 2010, an Appeal Tribunal conducted a hearing at which Pope testified that she was told that "if [she did] not sign [the resignation form, she] w[ould] not get the three weeks pay that [PPPC was] offering [her] . . . . [She] ha[d] to sign th[e] piece of paper." She further testified that she "signed it and then [she] wasn't even allowed to go back to [her] office to pack it up." On July 23, 2010, the Appeal Tribunal upheld the Deputy's determination and stated:

In this matter, [PPPC] contends that [Pope] did not say she would work another two to three months[;] rather[,] she said that she would work another two to three weeks. [PPPC] contends that [Pope] could have continued working there[;] however[,] they offered her the three week pay so they would part on good terms. [PPPC] argues that had [Pope] said she wanted to stay[,] . . . they would have had a discussion to determine if that was possible. [Pope] did not give [PPPC] a specific date of resignation[,] and it is this Appeal Tribunal's decision that because [PPPC] heard that [Pope] was looking for part-time work[,] they did not want to keep her employed any longer and [she] was not given the option to continue working. The employer's contention is rejected.

[Pope] did not leave work voluntarily without good cause attributable to the work and no disqualification arises under N.J.S.A. 43:21-5(a).

On January 26, 2011, the Board upheld the decision of the Appeal Tribunal.

On appeal, PPPC argues that the Board's decision is not supported by substantial credible evidence in the record. We disagree.

Our review of an agency's final decision is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)). We "defer to an agency's expertise and superior knowledge of a particular field," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), and uphold its decision "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007). In particular, when "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." Futterman v. Bd. of Review, 421 N.J. Super. 281, 287 (App. Div. 2011) (quoting Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)). "[A]n employee's separation from employment will be considered voluntary . . . only if the decision whether to go or to stay lay at the time with the worker alone." Lord v. Bd. of Review, 425 N.J. Super. 187, 191 (App. Div. 2012) (internal quotation marks omitted).

Our review of the record reveals sufficient credible evidence to support the conclusion that PPPC discharged Pope. The Appeal Tribunal found "that because [PPPC's officers] heard that [Pope] was looking for part-time work[,] they did not want to keep her employed any longer and [she] was not given the option to continue working." As such, "[Pope] did not leave work voluntarily." We conclude that the Appeal Tribunal and Board "could reasonably so conclude upon the proofs," Futterman, supra, 421 N.J. Super. at 287, and that neither the Board nor the Appeal Tribunal acted arbitrarily or capriciously.

A