LUCILLE GABEL v. BOARD OF REVIEW DEPARTMENT OF LABOR and THREE STAR TOURS, INC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3604-18T1

LUCILLE GABEL,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and THREE STAR TOURS, INC.,

     Respondents.
______________________________

                   Submitted March 12, 2020 – Decided April 15, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 164,613.

                   Lucille Gabel, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent Board of Review (Donna Sue Arons,
                   Assistant Attorney General, of counsel; Ryan J. Silver,
                   Deputy Attorney General, on the brief).

                   Respondent Three Star Tours, Inc., has not filed a brief.
PER CURIAM

       Lucille Gabel (petitioner) appeals from a final decision of the Department

of Labor and Workforce Development's Board of Review (Board) that sustained

the Appeal Tribunal's determination she was disqualified from unemployment

benefits because she left her employment voluntarily without good cause

attributable to the work. We affirm the Board's decision.

                                     I.

       Petitioner was employed by respondent Three Stars Tours, Inc.1 from July

2017 until August 10, 2018. Although initially hired on a temporary basis to

reconcile Three Stars' corporate tax returns, she later was given the

responsibilities of office manager and her salary increased. She was working

thirty-five hours a week when she resigned.

       Two days later, petitioner applied for unemployment benefits, claiming

she was laid off, although she acknowledged at the subsequently conducted

hearing that work was available for her at her job. She was paid $795 in

unemployment benefits for the weeks ending August 18, 2018 through

September 1, 2018.




1
    Three Stars' brief was suppressed on November 18, 2019.
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      In October 2018, the Division of Unemployment Insurance (Division)

disqualified petitioner from benefits on the ground she left work voluntarily

without good cause attributable to the work. The Division mailed petitioner a

Request for Refund seeking repayment of the benefits she received. Petitioner

appealed these determinations to the Appeal Tribunal.

      A hearing was conducted by a hearing examiner. Petitioner testified she

left Three Stars on August 10, 2018.          She described the company as

"dysfunctional" and that they did not "manage[] their business right."          She

claimed she was asked to falsify payroll records. Ibid. She did not "want to

falsify QuickBook records." She was aware of these problems "from the very

beginning." She also complained the office was a "fire hazard" because there

was "no way out." Petitioner acknowledged she told her employer she was going

to stay for the rest of the summer in 2018, because it was their busy season.

      Petitioner testified she did not have proof to substantiate her complaints.

She acknowledged she did not report Three Stars to any regulatory authorities

prior to leaving employment.     She did not speak to the owners about her

concerns because she "[did not] think it would really matter."         Petitioner

acknowledged she was not under a threat of discharge at the time she left. She




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did not ask to change her position because "[t]here was no other change of

position." She never asked for a leave of absence.

      On the day petitioner left employment, she contends she was supposed to

make adjustments to the hours and driver's log of one of their bus drivers, she

learned the company was proceeding with a new accounting program and she

would be "the sole person responsible for their books[,]" and her supervisor had

an argument with another person she could overhear. She testified she left Three

Stars saying, "I'm done. I'm done. I'm going. No more. I'm done. I quit." In

her brief, she acknowledged saying "I'm not coming back."

      The Appeal Tribunal denied petitioner's application for benefits under

 N.J.S.A. 43:21-5(a) for voluntarily leaving work without good cause attributable

to the work. It found petitioner "did not present any evidence" to support her

allegations against her employer. She "had planned to leave at the end of

August, regardless of what had occurred on [August 10, 2018]." The Board

found there was available work for petitioner, and she was not threatened with

discharge. It found she did not raise any of her issues with Three Star or

regulatory agencies.   The Board concluded petitioner left work voluntarily

without good cause attributable to the work and because of this, she was required

under  N.J.S.A. 43:21-16(d) to refund the benefits she had received.


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      Petitioner timely appealed to the Board. Her letter of appeal asked the

Board to subpoena Three Stars' insurance and payroll records, and to examine

them for evidence of falsification. Ibid.

      The Board affirmed the Appeal Tribunal decision after examining the

hearing record "carefully." It found there was "no valid ground for a further

hearing" because petitioner had been given the ability to "offer any and all

evidence" and had been "given a full and impartial hearing."

      Petitioner appeals the Board's decision, contending she left her

employment because she "was expected to participate in illegal activities and

work in an unsafe environment," citing to Casciano v. Board of Review,  300 N.J. Super. 570 (App. Div. 1997).               Petitioner argues she should not be

disqualified for benefits due to the office's potential fire hazard, citing N.J.A.C.

12:17-9.4.

                                      II.

      Our review of an agency's decision is limited. Brady v. Bd. of Review,

 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep’t of Envtl. Prot.,

 101 N.J. 95, 103 (1985)). "If the Board's factual findings are supported 'by

sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting

Self v. Bd. of Review,  91 N.J. 453, 459 (1982)). We will not intervene unless


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the Board's decision is "arbitrary, capricious, or unreasonable." Ibid. However,

we will review an agency's interpretation of a statute de novo. Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys.,  206 N.J. 14, 27 (2011) (citing Toll Bros.,

Inc. v. Twp. of W. Windsor,  173 N.J. 502 549 (2002)).

      A person is disqualified from unemployment benefits if she leaves work

voluntarily and not for good cause attributable to the work.  N.J.S.A. 43:21-5(a).

"Accordingly, benefits are available to a worker who voluntarily leaves [her]

job only if it [was] for 'good cause attributable to [the] work.'" Utley v. Bd. of

Review,  194 N.J. 534, 544 (2008) (third alteration in original) (quoting  N.J.S.A.

43:21-5(a)).

      N.J.A.C. 12:17-9.1(b) defines "good cause attributable to [the] 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."

"The test of 'ordinary common sense and prudence' must be utilized to determine

whether an employee's decision to leave work constitutes good cause." Brady,

 152 N.J. at 214 (quoting Zielenski v. Bd. of Review,  85 N.J. Super. 46, 52 (App.

Div. 1964)). An employee who has left work voluntarily has the burden of

proving "he [or she] did so with good cause attributable to [the] work." Id. at

218;  N.J.S.A. 43:21-5(a).


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      The record supports the Board's decision. Petitioner acknowledged that

when she left her employment, she was not threatened with discharge or

discipline and there was available work. She did not have proof to corroborate

her claims about the business' operations.    She had not complained to any

regulatory authorities or even to the company supervisor. She chose to remain

with the company although she acknowledged being aware of problems from the

beginning. The president of the company testified at the hearing, denying

falsification of records. He testified petitioner did not complain to him about

the issues she raised at the hearing.

      In Casciano,  300 N.J. Super. at 572, cited by petitioner, the employee

resigned after he was asked to intentionally overbill customers. He complained

to his employer about the practice and claimed he was threatened with discharge.

Id. at 574. He also looked for other employment before leaving his employer.

Id. at 573. We reversed the Board's decision that had disqualified the employee

from unemployment benefits, finding that the employee had good cause to

resign. Id. at 577.

      In Casciano, we noted "[t]here is a clear public policy in this state to

protect employees who protest illegal activity by their employers." Ibid. We

recognized that the "petitioner's legitimate distress when required by his


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employer to act illegally or immorally be recognized as good cause for leaving."

Ibid.

        The facts here are distinguishable from Casciano. Petitioner did not have

any proofs to substantiate her claims. She had no witnesses that supported her.

Her actions were not consistent with her claims. She did not look for another

job. She stayed even though she was aware of the issues from the beginning and

never complained. She was not threatened with termination. The employer

denied the allegations of illegality.

        Petitioner complains the building where she worked was a fire hazard.

Under N.J.A.C. 12:17-9.4 "[a]n individual shall not be disqualified for benefits

for voluntarily leaving work if he or she can establish that working conditions

are so unsafe, unhealthful, or dangerous as to constitute good cause attributable

to such work." Petitioner had the burden to prove this regulation applied to her

situation. Ibid. However, she did not submit any competent evidence to the

Board showing that the workplace was "unsafe, unhealthful, or dangerous," and

never asked for a change in her working conditions.

        The Board's decision was supported by the record. There was nothing

arbitrary, capricious, or unreasonable about the Board's decision to affirm the

Appeal Tribunal. Given this, petitioner was not entitled to unemployment


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benefits and is required to reimburse the benefits she received. See Bannan v.

Bd. of Review,  299 N.J. Super. 671, 674 (App. Div. 1997).

      Affirmed.




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