Opinion
DOCKET NO. A-3080-13T1
05-13-2015
ADAM T. WISNIEWSKI, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, CHERRY, WEBER & ASSOCIATES, P.C., and KONKUS CORPORATION, Respondents.
Adam T. Wisniewski, appellant, argued the cause pro se. Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondents Cherry, Weber & Associates, P.C., and Konkus Corporation have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Board of Review, Department of Labor, Docket No. 00000950. Adam T. Wisniewski, appellant, argued the cause pro se. Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondents Cherry, Weber & Associates, P.C., and Konkus Corporation have not filed a brief. PER CURIAM
Claimant Adam T. Wisniewski appeals from the January 29, 2014 agency decision of the Board of Review (the Board), which amended and affirmed the December 18, 2013 decision of the Appeal Tribunal (the Tribunal) finding Wisniewski disqualified for benefits. We affirm.
We discern the following facts from the record. Wisniewski was employed by Cherry, Weber & Associates, P.C., as a Civil Engineer from June 15, 2006, through July 10, 2013, when he resigned to accept a similar position and higher salary with Konkus Corporation. Wisniewski began working for Konkus on August 5, 2013. On September 20, 2013, Konkus terminated him due to budgetary concerns.
Wisniewski filed a claim for unemployment benefits effective September 22, 2013. On October 23, 2013, the Deputy Director of the Division of Unemployment and Disability Insurance (the Deputy) mailed Wisniewski a determination finding him disqualified from employment benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to the work. The disqualification would continue until Wisniewski worked eight or more weeks in employment and earned at least ten times his weekly benefit rate.
Wisniewski appealed the Deputy's determination to the Tribunal. On December 16, 2013, the Tribunal conducted a telephonic hearing at which only Wisniewski testified. Wisniewski acknowledged that he resigned from Cherry Weber voluntarily to start work at Konkus at a higher salary. In a December 18, 2013 decision, the Tribunal found that Wisniewski left work with Cherry Weber voluntarily without good cause attributable to the work to accept employment with Konkus. The Tribunal found Wisniewski disqualified for benefits because he worked an insufficient number of weeks with Konkus to remove the eight-week disqualification resulting from his voluntarily leaving Cherry Weber.
Wisniewski appealed to the Board. The Board affirmed the Tribunal's decision, but made a technical amendment to the Tribunal's decision to correct the reference to the statutorily required number of weeks that must be worked to qualify for benefits under N.J.S.A. 43:21-5(a). This appeal followed.
On appeal, Wisniewski contends that leaving a position to pursue advancement at a subsequent employer should not constitute a disqualifying event. He argues that leaving Cherry Weber to work with Konkus for a substantial increase in pay, fringe benefits, and career advancement constitutes good cause attributable to the work. We disagree.
Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to factual findings where supported by sufficient credible evidence. Ibid. "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] 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)). We give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Brady, supra, 152 N.J. at 210 (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71-72 (1985) (citing Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 391 (1983)).
The guidelines for determining an employee's entitlement to unemployment compensation have been defined in statute and regulation, and interpreted by our courts. An employee is disqualified for benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment[.]" N.J.S.A. 43:21-5(a) (emphasis added). An employee who has left work voluntarily has the burden of proving that he or she is entitled to unemployment benefits. Brady, supra, 152 N.J. at 218.
An employee who has left work for a good but personal reason is also subject to the disqualification under N.J.S.A. 43:21-5(a). See Pagan v. Bd. of Review, 296 N.J. Super. 539, 542 (App. Div.), certif. denied, 150 N.J. 24 (1997). Voluntarily leaving work to accept a more favorable position with another employer is personal and does not constitute good cause attributable to the work. Rider College v. Bd. of Review, 167 N.J. Super. 42, 47 (App. Div. 1979).
Appellant's reliance upon Rider is misplaced. In Rider, we concluded that, while the "advantages and disadvantages in the position offered at [the new employer] may have . . . motivate[d] claimant to voluntarily quit Rider College . . . those reasons [were] personal and in no way related to claimant's employment for Rider College." Id. at 48. Similarly here, Wisniewski left Cherry Weber to pursue an opportunity for increased salary and benefits. He did not assert at any time that he left Cherry Weber for any reason attributable to his employment or workplace conditions at that firm. Instead, he left to pursue another opportunity at another firm. Thus, we discern no basis to disturb the Board's determination that claimant's reasons for leaving Cherry Weber were personal and, hence, disqualifying. Because his time at Cherry Weber cannot be counted as qualifying employment, we find no error in the Board's determination that Wisniewski remains ineligible from receiving benefits until such time as he has worked an additional week and earned the requisite amount, pursuant to N.J.S.A. 43:21-5(a), because he was terminated after only seven weeks at Konkus.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION