Opinion
DOCKET NO. A-2405-14T4
05-12-2016
SHAUNA M. MCGOWAN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ANN TAYLOR RETAIL, INC., Respondents.
Tobia & Sorger, LLC, attorneys for appellant (Ronald L. Tobia and Michael A. DeMarco, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Brian M. Scott, Deputy Attorney General, on the brief). Respondent Ann Taylor Retail, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Board of Review, Department of Labor, Docket No. 435,757. Tobia & Sorger, LLC, attorneys for appellant (Ronald L. Tobia and Michael A. DeMarco, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Brian M. Scott, Deputy Attorney General, on the brief). Respondent Ann Taylor Retail, Inc. has not filed a brief. PER CURIAM
Shauna M. McGowan appeals from a final decision of the Board of Review (Board), finding her disqualified for unemployment benefits because she left work voluntarily without good cause attributable to her work. Since the Board's decision was rooted in facts in the record and consistent with relevant law, we affirm.
McGowan was employed by Ann Taylor Retail, Inc. (Ann Taylor) from February 1, 2010, until she resigned effective November 7, 2012. In November 2010, McGowan was promoted to store manager of the Ann Taylor store at the Garden State Plaza Mall. In October 2011, McGowan was promoted again to store manager of the Ann Taylor store at The Mall at Short Hills. McGowan provided Ann Taylor a verbal and written notice of her intent to resign on October 24, 2012. Her resignation letter stated:
After much thought and heartache, I have decided to resign from [my] position as [s]tore [m]anager of Short Hills. My last date here at Short Hills will be Wednesday, November 7, 2012. I am open to other opportunities within the company that are fair and reasonable where I can be productive to the company and live a balanced life. I look forward to the success of the [b]rand; as I know it is going through a transitional year. I do see clear as day the potential it has to become that unfillable hole. Shauna.
McGowan filed for unemployment compensation benefits on November 4, 2012. A Deputy Director of the Division of Unemployment and Disability Insurance found McGowan eligible for benefits.
On December 17, 2012, Ann Taylor appealed the Deputy's determination to the Appeal Tribunal. On October 22, 2013, a representative and the district manager for Ann Taylor participated in a telephone hearing before the Tribunal. McGowan did not participate in the hearing. During the hearing, the district manager testified that although McGowan had some job performance issues, she was not in jeopardy of termination at the time she decided to resign. The district manager further testified that Ann Taylor provided McGowan with a performance improvement plan and coaching sessions in an effort to improve her job performance. Additionally, the district manager testified that at the time of McGowan's resignation, she was offered the position of co-manager at a lower-volume store but declined the offer.
The Tribunal issued a decision reversing the Deputy's determination on October 23, 2013, and finding McGowan disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(a). In its decision, the Tribunal found that McGowan resigned despite the opportunity to continue her employment. The Tribunal held:
[N]o evidence has been provided to show good cause sufficiently significant enough to
warrant [McGowan] leaving available work to join the ranks of the unemployed. Therefore, [McGowan] left work [voluntarily] without good cause attributable to the work and is disqualified for benefits as of [November 4, 2012] in accordance with N.J.S.A. 43:21-5(a).
McGowan appealed the Tribunal's decision to the Board. In a letter from her attorney dated July 25, 2014, McGowan provided the bases for her resignation. McGowan noted that despite her acceptance of the position of store manager at the Short Hills store, she did not want to assume that position. McGowan cited work-related issues such as a decline in business, organizational and staffing changes, and lack of support which made the work environment overwhelming. McGowan claimed that the pressure from this work environment resulted in her suffering medical issues, and she had no alternative but to resign.
Despite McGowan's claim, no evidence to support her medical problems was presented at any stage of the administrative proceedings.
Upon review of the record, the Board affirmed the Tribunal's decision. In reaching its decision, the Board found that McGowan was provided with the opportunity to participate in the Tribunal hearing but presented no good cause for her failure to participate or to request an adjournment. This appeal followed.
On appeal, McGowan argues that she was constructively discharged and that she was deprived of an opportunity to be heard before the Tribunal since she was not notified of her employer's appeal. We disagree.
Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to factual findings where supported by sufficient credible evidence. Ibid. "[T]he 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)).
A reviewing court will intervene only if the challenged action was arbitrary, capricious or unreasonable, or "clearly inconsistent with [the agency's] statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)); accord Gloucester Cty. Welfare Bd., v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). In sum, the scope of appellate review is confined to determining whether the agency decision offends the State or Federal Constitution; whether such action violates legislative policies; whether the record contains substantial evidence to support the agency's factual findings; and, lastly, whether the agency, in applying legislative policies to the facts, clearly erred in reaching a conclusion that could not reasonably have been made. Id. at 210-11.
Our decision is guided by fundamental principles of law governing unemployment compensation. The Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30 (the Act), is designed primarily to lessen the impact of unemployment that befalls workers without their fault. Brady, supra, 152 N.J. at 212. "The public policy behind the Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989).
The Act provides that an individual shall be disqualified for benefits if "the individual has left work voluntarily without good cause attributable to such work[.]" N.J.S.A. 43:21-5(a); Brady, supra, 152 N.J. at 213 (emphasis omitted). "'[G]ood cause attributable to such work' means 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." N.J.A.C. 12:17-9.1(b). If a claimant resigned "for 'good cause attributable to [the] work,' [s]he is eligible for benefits, but if [s]he left for personal reasons, however compelling, [s]he is disqualified under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544 (2008). "The burden of proof is on the claimant to establish good cause attributable to such work for leaving." N.J.A.C. 12:17-9.1(c).
In this case, we conclude the Board's decision to deny McGowan benefits is supported by substantial credible evidence in the record. Although N.J.S.A. 43:21-5(a) does not define "good cause," we have "construed the statute to mean '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)).
Further, in application of our highly deferential standard of review, we find no reason to interfere with the Board's decision. McGowan claimed she was discharged due to overwhelming work conditions. However, the record amply supports the Board's determination that McGowan left voluntarily. An employee who leaves work for personal reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Utley, supra, 194 N.J. at 544; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute cause for leaving work voluntarily." Domenico, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "The decision to leave unemployment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work." Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) (quoting Domenico, supra, 192 N.J. Super. at 288). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175).
McGowan's second argument that she was deprived of her opportunity to be heard before the Tribunal was raised for the first time on appeal. Since she did not raise that argument before the Board we will not consider it. See Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2(a)(1) (2016) ("Issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate a public interest.") (citations omitted).
The failure to notify McGowan of Ann Taylor's appeal may constitute a compelling argument that she reasonably relied on the initial eligibility finding in regard to potential waiver of the refund sought by the Department of Labor. N.J.A.C. 12:17-14.2(a)(3). That issue is not before us. Even if that issue were before us, it would be premature to decide the issue. The question of a refund waiver "should be decided in the first instance, by the Division, applying its expertise[,]" so that we "have the benefit of a full record[.]" Mullarney v. Bd. of Review, 343 N.J. Super. 401, 410 (App. Div. 2001). We note that McGowan appealed the refund request to the Tribunal which was dismissed without prejudice. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION