Opinion
DOCKET NO. A-6376-11T2
01-13-2014
EDWARD J. MONACO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and A.A.H. OF BERGEN COUNTY, INC., Respondents.
Harry J. Katz argued the cause for appellant (Bergen County Mental Health Law Project, attorneys; Mr. Katz, on the brief). Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, on the brief). Respondent A.A.H. of Bergen County, Inc. has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from the Board of Review, Department of Labor, Docket No. 317,028.
Harry J. Katz argued the cause for appellant (Bergen County Mental Health Law Project, attorneys; Mr. Katz, on the brief).
Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).
Respondent A.A.H. of Bergen County, Inc. has not filed a brief. PER CURIAM
Appellant Edward J. Monaco appeals from a final decision of the Board of Review finding him disqualified for unemployment compensation benefits because he left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a). Our examination of the record satisfies us that the Board's final decision was properly premised on facts in the record and is consonant with relevant statutory provisions. Accordingly, we affirm.
I.
Monaco was employed part-time as a peer coordinator by respondent A.A.H. of Bergen County, Inc. (AAH) from April 5, 2004 until November 11, 2010. Monaco worked four to six days per week for a total of ten to fifteen hours per week. On November 11, he submitted a written resignation letter to Lydia Kievit, the Executive Director at AAH. Monaco filed a claim for unemployment benefits, but the Deputy disqualified him for benefits from November 11, 2010, finding that "[he] left work voluntarily without good cause attributable to such work." Monaco appealed that decision.
Monaco's initial appeal was dismissed without prejudice because he "was unable to participate in a scheduled hearing and pursue the appeal because his attorney was unavailable." His appeal was reinstated.
Monaco appeared with counsel for a telephone hearing with an Appeal Examiner on February 8, 2012. Monaco described two incidents before the examiner which he asserted caused him to resign his position. The first was a statement in September 2010, by David Moore, an AAH employee, in which he suggested that Monaco's daughter should earn some money by becoming a prostitute. Moore had never met the daughter. Monaco, who has a mental disability (as did most of AAH's employees), stated that Moore's comment affected him "a great deal" and that he was "emotionally and mentally disturbed" by the comment. Monaco complained to Kievit and, thereafter, Moore sent a written letter of apology to Monaco. Further, although Monaco contended he had a mental disability, he stated that it did not impede him from performing his job and that his doctor did not advise him to resign.
The second incident involved the possibility of Monaco being employed on a full time basis. In January 2010, Moore told Monaco that if a job opens up and AAH received more governmental funding, AAH would hire him "as a full time employee." Approximately at the end of October 2010, Moore told Monaco that he should consider applying to CompCare (an unrelated company) for a full time job. Monaco contends that this demonstrated that Moore "had no intentions for him to work full time."
Monaco admitted that Moore did not originally hire him, and that his work contact with him was "not much" on a weekly basis. He also stated that prior to his resignation he did not report to Kievit or anyone in management that he was having any problems or that he would resign if his problems were not rectified. On November 22, 2010, after his resignation, Monaco sought treatment at Englewood Hospital for approximately eight days to be stabilized.
The Appeal Tribunal affirmed the determination of the Deputy, finding, in pertinent part:
In this case at hand, the claimant left the job because he assumed he would not be given full time hours after the resident specialist [Moore] suggested he apply for work elsewhere. This is not considered sufficient cause to leave the ranks of the employed to join the ranks of the unemployed. The claimant was not told that he would not be given full time hours and it is unreasonable that he would leave some work for none at all. Additionally, while the claimant's medical condition is considered compelling, there is no indication it was caused or aggravated by the job. Lastly, as the claimant had minimal interaction with the resident specialist, the isolated incident that upset him in the past is not considered good cause attributable to the work. Mere dissatisfaction with working conditions, which are not shown to be abnormal or do notAccordingly, the Appeal Tribunal determined that Monaco left work voluntarily without good cause attributable to such work and, therefore, is disqualified for benefits under N.J.S.A. 43:21-5(a) as of November 7, 2010. On July 23, 2012, the Board of Review affirmed and this appeal followed.
affect health, do not constitute good cause for leaving work voluntarily.
II.
On appeal, Monaco argues that he was compelled to terminate from his employment because of the harassment by Moore, that the finding that he was not harassed by Moore was not based on substantial evidence, that he never had the intent to quit his job, and that the Board failed to make adequate findings of fact and conclusions of law. The factual record does not support these contentions and, therefore, we are not persuaded by these arguments.
Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also 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, 144 N.J. 16, 31 (1996). Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal citations omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).
The purpose of this State's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (citations omitted). In order to avoid disqualification, the claimant has the burden of establishing that he left work for good cause related to work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). While the statute does not define "good cause," it has been construed to require more than mere dissatisfaction with working conditions.
In scrutinizing an employee's reason for leaving, the test is one of ordinary senseAdditionally, "good cause" has been defined by regulation 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." N.J.A.C. 12:17-9.1(b).
and prudence. 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. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.
[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal citations omitted).]
An employee who quits a job without a sufficient work-related reason is disqualified from benefits under N.J.S.A. 43:21-5(a). Moreover, an employee who leaves work for a good but personal reason, is also subject to the disqualification. See Pagan v. Bd. of Review, 296 N.J. Super. 539, 542 (App. Div.), certif. denied, 150 N.J. 24 (1997).
In essence, in determining whether the employee voluntarily left work for a work-related good cause, the employee must show that he or she did all that was "necessary and reasonable in order to remain employed." Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (citation omitted). Clearly, such a test is fact sensitive. See Utley v. Bd. of Review, 194 N.J. 534, 550 (2008). As a result, when an agency's findings of fact are challenged on appeal, we will defer to its findings so long as there is credible evidence in the record to support them. Brady, supra, 152 N.J. at 210.
Applying our highly deferential standard of review, we find no occasion to interfere with the Board's decision. The record amply supports the Board's conclusion that Monaco resigned from his position because he was unhappy with the working conditions as a result of the two isolated comments by Moore. Moore certainly made an inappropriate comment to Monaco, for which he apologized in writing. Moore also advised Monaco that a full time position was available at CompCare. Monaco's disappointment with this comment will not support his burden of proving that he did what was reasonable and necessary to remain employed. See DeSantis v. Bd. of Review, 14 9 N.J. Super. 35, 38 (App. Div. 1977) ("Absent 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 [for leaving employment] within the statutory intendment."). Moore did not tell Monaco that a full time position at AAH would never be offered but only that such a position might be available elsewhere. Monaco got upset and left the job.
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; 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 v. Bd. of Review, 158 N.J. Super. 172, 175 (1978)).
A claimant who leaves work for medical reasons may qualify for unemployment benefits when the claimant submits unequivocal medical evidence that the work caused or aggravated the health problem. Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971) (finding doctor's equivocal statement that work "may" have aggravated claimant's condition insufficient to support claim); Israel v. Bally's Park Place, Inc., 2 83 N.J. Super. 1, 6 (App. Div. 1995) (where an employee asserts that voluntary separation resulted from detrimental effects on health, entitlement to unemployment benefits requires a showing by "adequate medical evidence" that the work environment aggravated the illness), certif. denied, 143 N.J. 326 (1996); Brown v. Bd. of Review, 117 N.J. Super. 399, 404 (App. Div. 1971) (finding claimant's "conclusory statements" that his work aggravated his medical condition insufficient to support claim); N.J.A.C. 12:17-9.3(d) (noting that "medical certification shall be required to support a finding of good cause attributable to work").
Here, the only support proffered by Monaco was the consultation report of his doctor wherein Monaco reported to his doctor that he "has been feeling kind of distraught and sad after an incident at work. He said he has been stressed and he has had some abusive statements made to him by workers." These conclusory statements are insufficient to adequately support Monaco's claim. Here, the only evidence offered is an uncertified consultation report from his doctor that unquestionably fails to meet the standard of proof.
Monaco failed to carry his burden of proving that he did what was reasonable and necessary to remain employed. We affirm the denial of benefits for the reasons expressed by the Board, which were supported by substantial, credible evidence in the record. R. 2:11-3(e)(1)(D).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION