Wellsv.Bd. of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONMay 10, 2016
DOCKET NO. A-2202-14T1 (N.J. Super. App. Div. May. 10, 2016)

DOCKET NO. A-2202-14T1

05-10-2016

BARBARA WELLS, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ACHIEVEMENT INCENTIVES AND MEETINGS CORP., Respondents.

Barbara Wells, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). Achievement Incentives and Meetings Corp., respondent pro se, joins in the brief of respondent Board of Review.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 013,323. Barbara Wells, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). Achievement Incentives and Meetings Corp., respondent pro se, joins in the brief of respondent Board of Review. PER CURIAM

Barbara Wells appeals from a November 17, 2014 final agency decision of the Board of Review (the Board), upholding an Appeal Tribunal decision denying her unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because she left her job voluntarily without good cause attributable to the work. We affirm.

The scope of our review in an appeal from a final determination of an administrative agency is limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Furthermore, "[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 Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

Here, the Board found that Wells was disqualified from unemployment compensation benefits under N.J.S.A. 43:21-5(a), which provides that an individual may not receive benefits if he or she "left work voluntarily without good cause attributable to such work." Although the statute does not define the term "good cause," it has been construed to mean a "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)).

The test for determining whether an employee's decision to leave work constitutes "good cause" is one of "ordinary common sense and prudence." Brady, supra, 152 N.J. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). The employee's decision to quit "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

Here, Wells claims that she left her employment because her employer refused to increase her compensation and "put [her] back on a full week schedule." Although Wells testified that she was promised increased compensation, she was unable to specify when this occurred or provide any evidence of such a promise. The employer denied that he promised Wells an increase in wage, emphasizing that "business conditions were poor and if . . . [] and when [the employer] had . . . the ability to increase the wages she would be considered." When the employer could not promise Wells an increase, she gave notice she was leaving and refused to train her replacement unless she received an increase. When her request was denied, she left her employment.

Wells claimed she was working a large number of hours while being paid a per diem rate based on a seven and one-half hour work day. The employer claimed payroll records established that Wells had worked on a per diem, daily rate of $165 since joining the company as an employee. As for Wells working extra hours, the employer maintained that Wells habitually arrived late to work and had to make up hours at the end of the day. The employer stated that any special projects requiring Wells to stay late were "very rare."

At first, Wells worked for the employer through an employment agency earning $22 per hour; the employer did not want to pay the agency, and hired Wells as his employee. The employer claims that once Wells joined the company as an employee, she was paid a daily, not hourly, rate. --------

The Appeal Examiner found that Wells was never promised a raise and voluntarily left her position when her request for a raise was denied. As a result, the Appeal Examiner concluded that Wells was disqualified because she failed to establish good cause for leaving her employment. Because plaintiff was disqualified from receiving benefits, the Appeal Examiner concluded that the employer was not liable for charges to its experience rating account, and remanded the issue of Wells' potential liability for benefits received.

Based on our review of the record, we conclude there is no basis to disturb the findings of fact or conclusions of law of the Appeal Examiner or the Board. The Appeal Examiner credited the testimony of the employer that Wells was never promised a raise, which is amply supported by the record. Wells alleges that her working conditions were "[a]busive or intolerable," that her employer did not honor the terms and conditions of her employment, and that her pay was reduced by "at least 20%." These allegations are not supported by the record. The Board's findings are supported by sufficient credible evidence, and therefore we "are obliged to accept them." Brady, supra, 152 N.J. at 210 (citations omitted).

An employee's dissatisfaction with his or her working conditions does not establish good cause to leave his or her employment. Domenico, supra, 192 N.J. Super. at 288 ("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." (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961))). Moreover, "[a]bsent a contractual obligation on the part of the employer with respect to salary increments . . . an employee's frustration caused by not receiving an expected pay raise does not constitute good cause within the statutory intendment." De Santis v. Bd. of Review, 149 N.J. Super. 35, 38 (App. Div. 1977). Here, there was no contractual agreement that Wells was entitled to a pay raise. Instead, Wells requested a raise, and left her employment voluntarily when she did not receive it.

Wells' argument that she should not be liable for sums already paid to her in benefits from the initial grant of benefits is premature. The Appeal Examiner made clear any such liability determination would be addressed on remand.

We conclude Wells' remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION