CHARLOTTE GEBHARDT 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NOT FOR PUBLICATION WITHOUT THE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-0

CHARLOTTE GEBHARDT,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND THETIS, INC.,

Respondents.

___________________________

December 26, 2013

Submitted November 14, 2013 Decided

Before Judges Simonelli and Haas.

On appeal from the Board of Review, Department of Labor, Docket No. 353,272.

Charlotte Gebhardt, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).

Respondent Thetis, Inc. has not filed a brief.

PER CURIAM

Appellant Charlotte Gebhardt appeals from the May 7, 2012 final decision of the Board of Review (Board), which affirmed the December 6, 2011 decision of the Appeal Tribunal that appellant was disqualified from receiving benefits under N.J.S.A. 43:21-5(a) as of August 7, 2011, because she left her employment at respondent Thetis, Inc. (Thetis) voluntarily without good cause attributable to the work. We affirm.

From December 24, 1984, to July 22, 2011, Gebhardt was employed as a waitress at a diner owned by Thetis. On July 22, 2011, "Ana," a temporary hostess, questioned Gebhardt about food Gebhardt had served to a customer. Ana became angry when the customer confronted her, and yelled at Gebhardt to "get out, get out of here!" Gebhardt felt Ana "was very rude" to her, so she left the diner. Thereafter, she never contacted her employer to inquire about her job status, and never returned to work. Ana never told Gebhardt she was terminated, but Gebhardt assumed this because her employer never called her.

Gebhardt applied for unemployment benefits, effective July 17, 2011. The Deputy Director found her disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. The Appeal Tribunal found her disqualified for benefits for the following reason:

By the claimant's own admission, she did not know she was terminated when the hostess told her to get out. The claimant assumed she was discharged when the employer did not call her at home afterward. However, she did not contact the owners to discuss the incident or inquire about her employment status. The claimant did not present evidence to indicate that she was actually terminated. Therefore, her contention that she was discharged is rejected.

The claimant initiated her separation when she did not return to the job or contact the employer after 07/22/2011. The claimant left the job without good cause attributable to such work. Therefore, [s]he is disqualified for benefits as of 08/07/2011 in accordance with N.J.S.A. 43:21-5(a).

The Board accepted these findings and affirmed.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

"The underlying purpose of the Unemployment Compensation Law 'is to provide some income for the worker earning nothing because he is out of work through no fault or act of his own.'" Futterman v. Bd. of Review, 421 N.J. Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady, supra, 152 N.J. at 212) (internal quotation marks omitted). A person 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 eight weeks in employment . . . .

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

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to work." Brady, supra, 152 N.J. at 218; N.J.A.C. 12:17-9.1(c). "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. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" 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."

An employee who leaves work for good, but personal, reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self, supra, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "'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, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "'The decision to leave employment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Shuster v. Bd. of Review, 396 N.J. Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288.

Here, Gebhardt left her job because she was dissatisfied with the way Ana treated her. This was a personal reason, not a reason so compelling that Gebhardt had no choice but to leave. We are satisfied that the determination that Gebhardt was not terminated, but rather, left work voluntarily without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.