SUZANE VOORHEES v. BOARD OF REVIEW DEPARTMENT OF LABOR and PETS GIFTS USA, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SUZANE VOORHEES,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and PETS GIFTS USA, LLC,

Respondents.

____________________________________

March 11, 2016

Submitted February 24, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from the Board of Review, Department of Labor, Docket No. 440,655.

Suzane Voorhees, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Arupa Barua, Deputy Attorney General, on the brief).

RespondentPet GiftsUSA hasnot fileda brief.

PER CURIAM

Suzane Voorhees appeals from a denial of unemployment benefits by the Board of Review (Board). We affirm.

Voorhees was employed as an office manager by Pet Gifts USA, LLC (Pet Gifts), from December 2011 until July 2013. On July 10, 2013, Voorhees's employer, Elicia Kessler, received notice that Voorhees and her daughter (also an employee of Pet Gifts), were involved in a serious verbal altercation on Pet Gifts premises. Kessler confronted Voorhees by telephone about the altercation, and Voorhees admitted that the altercation took place. Kessler explained to Voorhees that such incidents cannot take place on the premises, to which Voorhees responded with profanity and stated, "I'm done. I'm outta here. I'm finished. You figure it out yourself[,]" and hung up the telephone. Voorhees proceeded to announce to her coworkers, "I'm done, I'm outta here you figure everything out yourself[,]" before slamming the door and leaving Pet Gifts. Pet Gifts then changed the locks to the premises, changed their computer passwords, and mailed Voorhees a letter accepting her resignation. An employee who was already being trained to replace Voorhees was elevated to fill the vacant position after Voorhees resigned.

Voorhees testified that she left work because she had a doctor's appointment and the doctor instructed her to stay out of work on July 11 and 12, 2013. Pet Gifts was not notified that she was leaving for medical reasons, and no doctor's note was provided to Pet Gifts until after the incident. There is evidence in the record that Voorhees attempted to rescind her resignation in the days following the incident via electronic communication, but Pets Gifts had already accepted the resignation and hired the replacement whom Voorhees was training to replace her in the manager's position.1

Voorhees eventually applied for unemployment benefits effective July 14, 2013. On August 14, 2013, the Division of Unemployment Insurance (Division) found Voorhees eligible for benefits. Pet Gifts appealed the decision to a Division Appeal Tribunal (Tribunal), and a hearing was held on November 6, 2013. On November 7, 2013, the Tribunal issued a written decision reversing the Division's decision. The Tribunal found that Voorhees left work voluntarily and was therefore disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) and (c). Voorhees appealed the decision to the Board, and on March 14, 2013, the Board affirmed the decision. This appeal followed.

Voorhees raises the following points on appeal

POINT I

APPELLANT VOORHEES SHOULD BE HELD NOT TO HAVE VOLUNTARY QUIT UNDER THE STANDARDS OF THE UNEMPLOYMENT COMPENSATION LAW.

POINT A

THE LEGAL STANDARD OF INTENTION TO VOLUNTARILY LEAVE WORK WAS NOT MET IN THIS CASE SINCE ANY STATEMENTS WERE AT FIRST AMBIGUOUS, AND QUICKLY WERE CLARIFIED TO DEMONSTRATE NO VOLUNTARY QUIT.

POINT B

THE LEGAL STANDARD FOR VOLUNTARY QUIT WAS NOT MET, EVEN IF THE LEAVING FOR THE MEDICAL APPOINTMENT WAS LEAVING IN A HUFF.

POINT C

THE FAILURE OF THE BOARD TO CONSIDER THE ESTABLISHED PRECEDENT OF [SAVASTANO], THE ADMITTED INTENT TO TERMINATE BY THE EMPLOYER, THE TEXT OF [VOORHEES] TO PROTECT HER EMPLOYMENT PRIOR TO THE NEXT WORK DAY, AND THE PLAN OF CONTINUED EMPLOYMENT IN THE [BOOKKEEPER] POSITION MAKES [VOORHEES] ENTITLED TO UNEMPLOYMENT BENEFITS, AND THE DECISION OF THE BOARD ARBITRARY, CAPRICIOUS AND MISTAKEN.

POINT II

THE BOARD FAILED TO DETERMINE THIS CASE IN A MANNER BEST SUITED TO DETERMINE [VOORHEES'S] RIGHTS, TO APPROPRIATELY ASSIST THE PRO SE CLAIMANT, AND TO EFFECTUATE THE INTEREST OF JUSTICE, DUE PROCESS AND THE REMEDIAL AND HUMANITARIAN PURPOSES OF THE UNEMPLOYMENT COMPENSATION STATUTE.

POINT A

THE INTEREST OF JUSTICE IN BEST DETERMINATION OF [VOORHEES'S] RIGHTS AND THE AGENCY REGULATIONS WHICH MANDATE ASSISTANCE TO PRO SE CLAIMANTS UNDER DUE PROCESS STANDARDS REQUIRE REVERSAL SINCE THE PROCESS BELOW FAILED TO CONSIDER THE APPROPRIATE MERITS OF THE CASE.

POINT B

THE REMEDIAL PURPOSES OF THE UNEMPLOYMENT COMPENSATION STATUTE SHOULD BE INTERPRETED TO LIBERALLY ALLOW APPEALS TO BE HEARD ON THE FULL ISSUES OF THE MERITS.

Our scope of review is limited. We are bound to affirm the Board's determination if reasonably based on proofs. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "[T]he 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." Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). However, we may intervene if the administrative agency's action was arbitrary, capricious or unreasonable, or it was "clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

The Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -24.30, provides that an individual shall be disqualified for benefits if "the individual has left work voluntarily without good cause attributable to such work[.]" N.J.S.A. 43:21-5(a); Brady, supra, 52 N.J. at 213 (emphasis omitted). "'[G]ood cause attributable to such work' means 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). If a claimant resigned "for 'good cause attributable to [the] work,' [s]he is eligible for benefits, but if [s]he left for personal reasons, however compelling, [s]he is disqualified under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544 (2008). "The burden of proof is on the claimant to establish good cause attributable to such work for leaving." N.J.A.C. 12:17-9.1(c).

Here, Voorhees claims she did not voluntarily resign. Rather, she claims she left in a "temporary huff for a medical appointment," and argues for reversal pursuant to Savastano v. Bd. of Review, 99 N.J. Super. 397 (App. Div. 1968). In Savastano, an employee argued with a coworker, left work early, returned the next day, and found he had been replaced. Id. at 399. We observed

Employees frequently leave work temporarily for some fleeting physical or mental irritation, or "in a huff" occasioned by one or more of the frustrations attending commercial life, without intending to quit. Although such an individual may be said to have left work voluntarily and without good cause attributable to the work, thus engaging in conduct which might justify a discharge by the employer, nevertheless such a party may not be said to have "left work" in the meaning of having severed his employment relationship with an intent not to return.

[Id. at 400.]

We ruled that whether an employee quit or was fired "depends upon the facts of each particular case" and "is to be determined by the Board upon an analysis of the evidence and specific findings of fact supportive of its conclusion." Id. at 400-01. We remanded to the Board to determine "the critical questions[,]" including "what, if anything, did [claimant] say when he left"; "was he prepared to resume work when he returned the following day"; "did the employer sever the employment relationship by the hiring of a permanent replacement"; and "did claimant quit or was he discharged?" Id. at 400.

Here, the Board answered those critical questions. The Board found Voorhees used profanity and voluntarily left the office. The Board also found that Voorhees never announced on the day of her resignation that she was leaving to attend a doctor's appointment. We defer to the Board's findings, Brady, supra, 152 N.J. at 210, and note that the record sufficiently demonstrates that Voorhees unequivocally announced her resignation on July 10, 2013. Thus, Savastano is distinguishable. "It is important to distinguish between the kind of absence from work that justifies firing by an employer and the kind that demonstrates an employee's intention to quit." Garcia v. Bd. of Review, 191 N.J. Super. 602, 608 (App. Div. 1983); see also Savastano, supra, 99 N.J. Super. at 400-01. Here, the Board properly found Voorhees both verbalized her intention to quit and engaged in conduct consistent with her expressed intention.

Voorhees's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 There is evidence in the record that Vorhees was transitioning out of the manager's position so she could care for her granddaughter. Voorhees asserts in her brief that she agreed to stay employed in a different and less time-consuming position. Kessler testified during the November 6, 2013 hearing that Voorhees expected to retire in September 2013.