GAIL ROSSO v. BOARD OF REVIEW DEPARTMENT OF LABOR and EDWIN J. GARINO D.D.S., L.L.C

NOT FOR PUBLICATION WITHOUT THE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-4173-19

GAIL ROSSO,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and EDWIN J. GARINO,
D.D.S., L.L.C.,

     Respondents.
_________________________

                   Submitted November 10, 2021 – Decided February 28, 2022

                   Before Judges Fuentes and Gummer.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 207504.

                   Gail Rosso, appellant pro se.

                   Andrew J. Bruck, Acting Attorney General, attorney for
                   respondent Board of Review (Donna Arons, Assistant
                   Attorney General, of counsel; Andy Jong, Deputy
                   Attorney General, on the brief).

PER CURIAM
      The Board of Review of the New Jersey Department of Labor affirmed a

decision of the Department's Appeal Tribunal, disqualifying claimant Gail

Rosso from receiving unemployment benefits under  N.J.S.A 43:21-5(a) because

she had left work voluntarily for reasons unrelated to her work. Claimant

appeals the Board's decision, which we affirm.

      Claimant was employed by Edwin J. Garino, D.D.S., L.L.C. from May

1987 through February 5, 2020.      She worked as an office manager in Dr.

Garino's dental practice.   Claimant applied for unemployment benefits.        A

deputy from the Department's Division of Unemployment Insurance disqualified

claimant from receiving benefits, finding she had left her job voluntarily on

January 12, 2020, "to move out of the area." The deputy found that reason to be

"personal" and not "good cause attributable to the work."

      Claimant appealed the deputy's decision. During a hearing before the

Appeal Tribunal, the examiner asked claimant what reason she had given her

employer for her resignation. She testified: "the fact that he was going to be

retiring shortly and I would not have a job, and also my husband lost his job in

January and couldn't find another job. So, we chose to move to Florida near our

family so that he could . . . get new employment." She also stated she would

have stayed at her job if her husband had not lost his job. When asked again for


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the reason she had given her employer as to why she was leaving her job,

claimant testified, "[b]ecause my husband was losing his job. He was told that

he only had two months left and he had to leave in January. . . . he was looking

for other work and couldn’t find any so we decided to move to Florida to be near

our family." When asked why they were relocating to Florida, she responded:

"so my husband could find a job easier than in New Jersey. He tried. He couldn't

find one. Since we have family here we thought we would move closer to them

so that we have the support of them until he could find a job." Given an

opportunity to provide additional information to the Tribunal, claimant testified:

            the reason I left is obviously because my husband lost
            his job. Tried to find new employment and could not.
            He had been looking for quite a while, and mixed with
            that and the fact I was only working two days a week
            now in the job I had been at 32 years, it took a lot for
            me to . . . leave, but after my husband lost his job and
            my boss cut his hours down, and was bringing in a new
            dentist shortly, and now with the coronavirus I
            wouldn’t have had a job anyway right at this moment,
            we decided the best option would be to live closer to
            family for support until my husband found a job. I
            didn’t take it lightly, believe me. I've been with him a
            very long time. It's a very hard thing to do but we had
            no income except for mine and . . . it wasn’t making the
            bills. So, that's the reason I left.

Although her employer had reduced her hours, he had not reduced her salary.

He also had not told her he was going to terminate her for any reason. Claimant


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confirmed no one had told her she would lose her job when the new dentist

arrived: "No, I was just saying that's what I was thinking, but that's not the

reason I left. I left because of my husband . . . losing [his] job . . . and not

finding work."

      After the hearing, the Tribunal issued a written decision affirming the

deputy's decision. The Tribunal found claimant had resigned "to relocate[] . . .

to Florida with her husband so he could find a new employment because he was

going to be losing his job in [January] and they have family in Florida and be

closer for their support while her husband [was] looking for work."           The

Tribunal also found claimant would have continued to work for her employer if

her husband had not lost his job. The Tribunal determined, pursuant to  N.J.S.A.

43:21-5(a), claimant was disqualified for benefits because her reason for

relocating to Florida was "personal and unrelated to the work itself" and she had

"left work voluntarily without good cause attributable to such work."

      Claimant appealed the Tribunal's decision to the Board.         The Board

affirmed the decision.

      On appeal, claimant contends the future of her job was "uncertain"

because Dr. Garino planned to retire "some time soon with no determined date,

which left his employees uncertain about their future . . . ." She asserts she had


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to "weigh the choice of staying in a position with no certain future . . . or to

resign from her position . . . to follow her husband to Florida to support his

search for employment."       She also argues she has been unable to find

employment due to the COVID-19 pandemic and has an increased need for

unemployment benefits.

      The scope of our review of an administrative agency's final determination

is strictly limited. Brady v. Bd. of Rev.,  152 N.J. 197, 210 (1997); see also

Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n,  234 N.J. 150, 157 (2018)

("Judicial review of agency determinations is limited."). An agency's decision

may not be disturbed on appeal unless it is arbitrary, capricious, unreasonable,

or inconsistent with applicable law. Brady,  152 N.J. at 210. "If the Board's

factual findings are supported 'by sufficient credible evidence, courts are obliged

to accept them.'" Ibid. (quoting Self v. Bd. of Rev.,  91 N.J. 453, 459 (1982)).

"[I]n reviewing the factual findings made in an unemployment compensation

proceeding, the 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 Rev.,  200 N.J. Super. 74, 79 (App. Div. 1985)); see also

Futterman v. Bd. of Rev.,  421 N.J. Super. 281, 287 (App. Div. 2011).


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       To avoid disqualification, claimant had the burden of establishing she had

left work for "good cause attributable to work." Brady,  152 N.J. at 218; see also

 N.J.S.A. 43:21-5(a) (providing an employee who "has left work voluntarily

without good cause attributable to such work" is disqualified from

unemployment compensation benefits). "Good cause attributable to such work"

is defined in N.J.A.C. 12:17-9.1(b) 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 has left work "voluntarily"

within the meaning of the statute "only if 'the decision whether to go or to s tay

lay at the time with the worker alone.'" Lord v. Bd. of Rev.,  425 N.J. Super.
 187, 191 (App. Div. 2012) (quoting Campbell Soup Co. v. Bd. of Rev.,  13 N.J.
 431, 435 (1953)). Accordingly, an employee who quits a job without a sufficient

work-related reason is disqualified from receiving benefits. See Self,  91 N.J. at
 457.

       Applying these principles, we find no error in the Board's decision to deny

benefits. Based on her testimony at the hearing, the Tribunal found claimant

had "left work voluntarily without good cause attributable to such work ." The

Board adopted that finding, which was supported by substantial credible

evidence in the record. Moreover, the Board's determination that claimant's


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reason for leaving work did not constitute good cause attributed to the work is

consistent with well-established law.

      The Tribunal had an opportunity to consider whether claimant's

resignation was due to her husband's loss of employment and their decision to

relocate to Florida or to her employer's plan to retire some undetermined time

in the future. Given claimant's testimony that her employer's retirement plans

were not definite, no one had told her she was losing her job, no one had told

her she would lose her job when a new dentist arrived, and she would have

continued to work for her employer had her husband not lost his job, and her

repeated assertion she left her job because her husband had lost his job and they

wanted to relocate to Florida, we discern no error in the ultimate determination

claimant had "left work voluntarily without good cause attributable to such

work."

      Claimant's remaining argument lacks sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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