Opinion
DOCKET NO. A-1614-12T1
11-19-2015
LEE A. FAILLA, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and SAKER SHOPRITES, INC., Respondents.
Dominick P. Conte, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Saker Shoprites, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Board of Review, Department of Labor, Docket No. 322,958. Dominick P. Conte, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Saker Shoprites, Inc. has not filed a brief. PER CURIAM
Claimant Lee A. Failla appeals the final decision of the Board of Review (Board) disqualifying her from receipt of unemployment compensation benefits on the basis that she quit her job "voluntarily without good cause attributable to [his] work." N.J.S.A. 43:21-5(a). We affirm, however, for slightly different reasons than those expressed by the Board. See Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968) (holding that a judgment will be affirmed on appeal if it is correct, even though the wrong reasons were given).
I.
Claimant was employed by Saker Shoprite as a seafood clerk from October 19, 1998 through December 15, 2010. On her initial 1998 employment application, claimant listed herself as single and available to work any shift. In 2010, claimant married and had a baby. Claimant requested maternity leave and indicated that she was experiencing child care issues. In an effort to accommodate claimant upon her return from maternity leave in September, the employer assigned claimant to work the day shift.
On November 4, Riley Armstrong began work as the new store manager. He immediately informed claimant that she must work one night shift per week. Claimant informed him that she had difficulty working after 6:00 p.m. because of child care issues. Nevertheless, after reviewing claimant's employee file and noting her general availability, Armstrong assigned her to work Monday nights, reasoning that she could pre-arrange child care services.
Claimant called out of work five times between November 4 and December 15, 2010, for various reasons including those related to her child and the babysitter. On December 2, the employer issued claimant two written warning notices. The first notice related to her failure to report for work on November 28. It advised that "any further violation would result in suspension and or termination." The second written warning pertained to her calling out on December 2, and informed claimant that one more absence could result in suspension or termination.
On December 15, Armstrong called claimant to his office to discuss her attendance record. Claimant verbally resigned at the meeting, giving two weeks' notice, but was immediately removed from the store. She did not return to work.
A claim for unemployment benefits was filed on December 15, 2010. The Deputy Director initially determined that claimant was eligible for unemployment benefits. The employer appealed and a hearing was held on March 28, 2011, in which claimant and two employer representatives participated.
Claimant testified that she was being harassed by Armstrong. She claimed he "had it out for [her]" and that she had been told by several other people that he did not like her. Claimant claimed that Armstrong told her to resign or she would be fired. She maintained that she felt forced to resign during the December 15 meeting.
Claimant admitted that she did not discuss her concerns about Armstrong with any district manager or anyone else in a position over him, because she "didn't feel comfortable talking to anybody." On cross-examination, claimant acknowledged that as a member of the union, she had the right to file a grievance. She claimed that she called "Tommy," a shop steward, after she resigned and left the store, but he did not help her with her request for a grievance hearing.
Alexis Summers, the employer's corporate benefits manager, testified that claimant did not report any complaints regarding the store manager to the corporate office. She explained that, pursuant to the grievance process set forth in the employee handbook, an aggrieved employee would file a union grievance and the representative would call the corporate office to schedule a meeting. Summers did not receive a request for a grievance meeting from any union representative on claimant's behalf. Summers expressed that claimant was a longtime valued associate, "that the store hated to lose." However, since claimant resigned, she must re-apply for employment.
Armstrong denied targeting claimant and testified that his problem centered on her excessive absences and the hardship it caused the department. During the meeting, he discussed claimant's attendance record and the company's progressive discipline policy. He acknowledged that he informed her that one more absence would result in termination, and that she had the option to resign. Armstrong maintained that claimant misinterpreted his explanation of the progressive discipline policy, as well as his statement that she had the option to resign.
The Appeal Tribunal issued a decision that reversed the determination of the Deputy Director and denied the claim for benefits. Claimant appealed to the Board, which remanded to the Appeal Tribunal for additional fact-finding. After a second hearing, at which only claimant appeared, the Appeal Tribunal found that "the new store manager demanded [] claimant to work one night a week without notice." The Appeal Tribunal found that "[t]he new store owner, on 12/02/11, instructed the claimant it was in her best interest to resign because one more absence would result in termination. The employer informed the claimant they would not fight the claimant's unemployment benefits." Based upon these findings, the Appeal Tribunal determined that "claimant resigned in the face of a probable discharge with intent to protect her record and was [thus] involuntarily separated from the job. Therefore, no disqualification applies under N.J.S.A. 43:21-5(a) as the claimant did not leave the job voluntarily without good cause attributable to the work."
We note that the year should have read 2010.
In its October 26, 2012 decision, the Board affirmed and adopted the findings of fact developed by the Appeals Tribunal, which it deemed as substantially correct. However, the Board disagreed with the Appeal Tribunal's conclusion that claimant had good cause for leaving work. Instead, the Board concluded that since "claimant restricted her availability for work after the birth of her child, the employer's request for one late night per week was not unreasonable." The Board stated further that "[t]he employer afforded [] claimant ample opportunity to make childcare arrangements. Therefore, her decision to leave work because she could not comply with the employer's request was personal to her." Thus, the Board considered claimant's resignation a voluntary quit and disqualified her for benefits. This appeal followed.
II.
Our scope of review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 14 4 N.J. 16, 31 (1996). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "If the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982).
The New Jersey Unemployment Compensation statute (the Act) provides that a person is disqualified from receiving unemployment benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). A person who voluntarily quits work for personal reasons, as opposed to causes attributable to the work, is ineligible for benefits. See Self, supra, 91 N.J. at 456-57.
"'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 v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Review Bd., 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 not imaginary, trifling and whimsical ones." Ibid. Moreover, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (citing Condo v. Review Bd., 158 N.J. Super. 172, 175 (App. Div. 1978)).
Claimant contends that she involuntarily resigned because she felt forced by her employer to choose between resigning and being terminated. We are not persuaded by her arguments.
An employee who resigns in the absence of objective factors or conditions within the work environment demonstrating imminent danger of termination leaves work without good cause attributable to the work. Brady, supra, 152 N.J. at 219; Fernandez v. Bd. of Review, 304 N.J. Super. 603, 605 (App. Div. 1997); Trupo v. Bd. of Review, 268 N.J. Super. 54, 61-62 (App. Div. 1993). The employees in Brady, Fernandez and Trupo all chose to accept early retirement incentive packages fearing that they would otherwise be laid off. Those courts all defined "imminent" in such a way that neither the employees involved nor claimant in this case could demonstrate that "their layoffs were imminent." Brady, supra, 152 N.J. at 218.
In Brady, the Court found a layoff was not imminent where the employer generally notified its employees in December 1992 that it anticipated closing its plant by the end of 1993, because, based on the timeline for closing and the claimants' seniority, they "could have continued to work for several months." Id. at 219. In Fernandez, we held that "an employee's acceptance of a 'severance package' or 'early retirement incentive package' bars him from receiving unemployment benefits unless he shows he accepted the package because of a real, imminent, and substantial risk of losing his job." Supra, 304 N.J. Super. at 607. In Trupo, we found that the claimant was disqualified from benefits where she left her employment knowing that her employer had not yet decided which employees to lay off, because we found no evidence that her "expressed subjective fear was based on definitive objective facts." Supra, 2 68 N.J. Super. at 61. Here, claimant did not receive a termination notice, but rather, only a written notice that she might be terminated if she is absent in the future.
We disagree with claimant's reliance upon Breskin v. Board of Review. In that case, the claimant's health issues presented sufficient circumstances compelling her to quit her employment. Supra, 45 N.J. Super. 338, 342 (App. Div. 1957). We recognized that "[t]he Legislature contemplated that when an individual voluntarily leaves [his] job under the pressure of circumstances which may reasonably be viewed as having compelled him to do so, the termination of his employment is involuntary for the purposes of the act." Ibid. (quoting Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 464 (1953). However, since that case, the Act has been amended "to eliminate the eligibility of persons who leave work for good, but personal, causes." Self, supra, 91 N.J. at 456-57. The Act presently provides that benefits are available to a worker who voluntarily leaves his job only if it is for "good cause attributable to [the] work." Ibid. Therefore, if claimant quit her job for personal reasons, however compelling, she is disqualified under the statute.
Claimant's argument that she resigned because she felt forced to choose between resignation and termination finds no support in the factual record. Because the circumstances presented here belie the existence of any such "Hobson's Choice," we reject claimant's subjective reason for resigning under the "ordinary commonsense and prudence" test, Domenico, supra, 192 N.J. Super. at 288. In Domenico, the employee resigned out of fear that she would suffer physical harm from patients at the Ancora State Psychiatric Hospital. Id. at 287. Her reasons were deemed reasonable and her voluntary termination of employment justified because she had twice been assaulted on the job. Id. at 288. Here, claimant was not threatened with immediate termination. Nor was she in imminent danger of termination on the day of the meeting since she was in compliance with her workplace schedule. In our view, claimant's compulsion to resign was neither sensible nor prudent, and her fear of termination did not justify her voluntary resignation because there was no lawful basis to terminate her at that time. Though she was subject to future termination, consistent with the company disciplinary policy, claimant made a personal decision to voluntarily leave work on December 15.
"The necessity of accepting one of two or more equally objectionable alternatives." Hobson's Choice, Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/hobson's_choice. --------
Additionally, claimant failed to "do what is necessary and reasonable in order to remain employed." Ibid. Claimant did not report her concerns of Armstrong's allegedly harassing behavior to any superior, and she failed to follow the union grievance procedures. We recognize that the failure to complain "does not in and of itself disqualify [a claimant] from receiving benefits nor does it prove that the reason she quit was not sufficient to constitute 'good cause attributable to such work.'" Doering v. Bd. of Review, 203 N.J. Super. 241, 248-49 (App. Div. 1985). However, in this instance, claimant had ample opportunity to complain to the corporate office or to report these concerns to a union representative after being assigned the night shift on November 4, and after receiving the written warnings on December 2. She did neither.
In sum, the Board's decision that claimant was ineligible for unemployment benefits was supported by substantial, credible evidence, and we find no reason to disturb it.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION