INDIGO GYMNASTICS CENTER, LLC 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NOT FOR PUBLICATION WITHOUT THE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

INDIGO GYMNASTICS CENTER, LLC,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR

and ZULIETA SMOLJAN,

Respondents.

_______________________________________

September 25, 2014

Submitted September 9, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from the Board of Review, Department of Labor, Docket No. 380,577.

Jardim, Meisner & Susser, P.C., attorneys for appellant(Matthew A. Stoloff, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Ernest Bongiovanni, Deputy Attorney General, of counsel and on the brief).

Dubeck Law Firm, LLC, attorneys for respondent Zulieta Smoljan (Mark D. Miller, on the brief).

PER CURIAM

Indigo Gymnastics Center, LLC appeals from the final decision of the Board of Review that Zulieta Smoljan is entitled to unemployment compensation benefits. We affirm based upon our review of the record and considering the applicable law.

In March 2011, Zulieta1 and her husband, Sinisa ("Sonny") Smoljan, were hired as gymnastics coaches by Indigo's director and part owner, Cameron Saifi. Within a few months, Zulieta and Saifi had disagreements over her work schedule and compensation.

By late October 2011, Saifi decided not to talk to Zulieta because he felt their conversations were not conducive to getting the results he needed to operate the gym. Thus, any concerns that Saifi needed to share with Zulieta would be conveyed to Sonny.

On October 27, 2011, Sonny told Saifi that Zulieta was not amenable to a reduction of her hours and compensation. Saifi replied that Zulieta "can go on unemployment." Saifi also told Sonny that Zulieta could not coach her students in a gymnastics competition that was taking place two days later. That was the last day Zulieta worked at Indigo because Zulieta and Sonny believed that Saifi's statements meant she could no longer work for Indigo and should receive unemployment benefits. Two weeks later, Sonny felt he was harassed by Saifi, and left Indigo for a similar position at another gymnastics school.

Saifi successfully contested Zulieta's unemployment benefits claim on the grounds that she quit her job. She appealed. The Appeal Tribunal found that Zulieta did not voluntarily leave without cause attributable to her job. The Tribunal concluded that Zulieta did not refuse to work her assigned hours, and did not wantonly or willfully disregard her employer's interest or deliberately violate the employer's rules. Therefore, she was entitled to unemployment compensation under N.J.S.A. 43:21-5(b). The Board agreed with these findings. 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)). We give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "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 overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71-72 (1985) (citing Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 391 (1983)).

The guidelines for determining an employee's entitlement to unemployment compensation has been defined in statute and regulation, and interpreted by our courts. An employee 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 she "did so with good cause attributable to work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)); 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)). An employee's "'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)); see also In re N.J.A.C. 12:17-9.6 ex. rel. State Dep't of Labor, 395 N.J. Super. 394, 399-400 (App.Div. 2007). Moreover, an employee has the obligation "to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, at 175; Zielenski, supra, 85 N.J. Super. at 53-54).

In light of our highly deferential standard of review, we find no reason to overturn the Board's decision. The determination that Zulieta did not voluntarily leave her job without good cause is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.

The Tribunal determined that Zulieta and Sonny gave credible testimony that Saifi had disagreements with her concerning her work schedule and compensation, refused to talk to her, directed her not to coach her students in a competition, and told her she can get unemployment benefits. The Tribunal found that this led Zulieta and Sonny to reasonably believe that Saifi did not want her to continue working at Indigo. In turn, the Tribunal found Saifi's testimony that he did not cause Zulieta to leave Indigo's employ lacking in credibility.

We conclude there is no reason to disagree with the Board's acceptance of the Tribunal's findings that Zulieta qualified for unemployment benefits because she did not voluntarily leave without cause attributable to her job.

1 To avoid confusion, we refer to plaintiff and her husband by their first names. We intend no disrespect by this informality.