VITA PACIFICO 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NOT FOR PUBLICATION WITHOUT THE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

VITA PACIFICO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and E & S FOOD, INC.,

Respondents.

___________________________

March 14, 2014

Submitted: February 26, 2014 Decided:

Before Judges Simonelli and Haas.

On appeal from the Board of Review, Department of Labor, Docket No. 286,189.

Ranni Law Firm, attorney for appellant (Joseph J. Ranni, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Adam Verone, Deputy Attorney General, on the brief).

Respondent E & S Food, Inc., has not filed a brief.

PER CURIAM

Appellant Vita Pacifico appeals from the December 19, 2011 final decision of the Board of Review (Board), which affirmed the May 31, 2011 decision of the Appeal Tribunal that appellant was disqualified from receiving benefits under N.J.S.A. 43:21-5(a) as of January 24, 2010, because she left her employment at respondent E & S Food, Inc. (E & S) voluntarily without good cause attributable to the work. We affirm.

From September 2006 until January 24, 2010, appellant was employed by E & S as a sales associate. On December 31, 2009, a company delivery driver sexually assaulted appellant. About forty-five minutes after the assault, appellant telephoned her supervisor, Joseph Guttila, to report the incident. Guttila urged appellant to contact the police. Guttila also terminated the driver after speaking to him at the office.

Later that day, Guttila and appellant spoke again by telephone. Appellant told Guttila that she had been "harassed continuously for the past few years by" Guttila's father, who was the owner of the company. Guttila told appellant he would investigate her allegations concerning his father and he again encouraged appellant to file a complaint against the driver. Appellant then contacted the police to report the assault.

Appellant's next scheduled work day was January 4, 2010. On that date, and again on January 5, appellant spoke to Guttila on the telephone. Appellant asked Guttila if she could take some time off to "see a therapist." Appellant had two weeks of accrued vacation time, three sick leave days and two "personal days." Guttila agreed that appellant could use all of her accrued leave time. He also asked her to provide him with a statement detailing her allegations against his father to assist him in his investigation. Appellant never provided the requested statement.

While she was on leave, appellant retained her company laptop computer, cell phone, E-Z Pass, and gas card. She maintained her company health insurance and continued to receive commissions on sales made by other associates to her clients. However, when her leave days were exhausted, appellant did not return to work. Appellant claimed that she was told by her customers that another sales person had taken over their accounts and, therefore, she believed E & S had fired her. She conceded, however, that she never called Guttila to verify her assumption that she was fired and that Guttila never informed her that she had, in fact, been terminated. Guttila testified that other associates serviced appellant's clients and she received commissions on those accounts through May 2010.

On May 2, 2010, appellant applied for unemployment benefits and was found eligible by the Deputy Director. E & S appealed. On May 31, 2011, the Appeal Tribunal found appellant disqualified for benefits because E & S "did not discharge [appellant] from employment." Instead, the Tribunal determined that appellant left her job when she failed to return after the completion of her leave.

In its December 19, 2011 decision, the Board of Review accepted and supplemented the Tribunal's findings. The Board concluded that appellant "voluntarily left her employment when she failed to either return to work or contact the employer." In response to appellant's contention that she thought she had been replaced during her leave, the Board explained that

the employer's actions in covering [appellant's] current clients while she was out does not mean she was replaced. An employer has the right to ensure a continuous flow of business. Additionally, the fact[] that [appellant] was paid commission for orders from these clients through May 2010, knew her medical coverage was continued and still had possession of the company cell phone, laptop, gas card and E-Z pass, make it unreasonable for [appellant] to believe she had been discharged by the employer.

Because appellant failed to return to work after her leave was exhausted, the Board found that she was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) as of January 24, 2010. This appeal followed.

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). 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, the Board properly concluded that appellant voluntarily left her job when she failed to return after the completion of her leave. Contrary to appellant's contentions, the record does not support her claim that E & S terminated her. The company took prompt action to terminate the employee who assaulted appellant and advised her that her allegations against the owner would be fully investigated. Guttila granted appellant's request to use her leave time. E & S permitted appellant to retain her company cell phone, laptop, E-Z Pass and gas card both during and after her leave, continued to ensure that her clients were serviced, and continued to pay commissions to appellant. Appellant also retained and used her company health benefits. Under these circumstances, the Board's determination that appellant 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.