Opinion
DOCKET NO. A-5948-11T4
01-30-2015
TINA ZACCHIA, Appellant, v. BOARD OF REVIEW, and DAVID'S BRIDAL, INC., and BRIDES BY DEMETRIOS, Respondents.
Tina Zacchia, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Fisher & Phillips, LLP, attorneys for respondent Brides by Demetrios, join in the brief of respondent Board of Review.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from the Board of Review, Department of Labor, Docket No. 362,748. Tina Zacchia, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Fisher & Phillips, LLP, attorneys for respondent Brides by Demetrios, join in the brief of respondent Board of Review. PER CURIAM
Tina Zacchia ("Zacchia") appeals from a final determination of the Board of Review ("Board"), which found that she was disqualified for benefits from September 11, 2011, pursuant to N.J.S.A. 43:21-5(a) because she left her position with Brides by Demetrios, LLC ("BD"), voluntarily without good cause attributable to the work. We affirm.
This appeal arises from the following facts. On September 25, 2011, Zacchia filed a claim for unemployment benefits which resulted in two decisions by the Deputy Director of the Division of Unemployment and Disability Insurance. In the first decision, which was mailed on November 7, 2011, the Deputy Director found that Zacchia was disqualified for benefits from July 17, 2011 because she left work at David's Bridal, Inc. ("DB") voluntarily without good cause attributable to the work. In the second decision, which was mailed on November 9, 2011, the Deputy Director found that Zacchia was disqualified for benefits from July 17, 2011, because she left her job at BD voluntarily, without good cause attributable to the work.
Zacchia appealed both determinations to the Appeal Tribunal, and an appeals examiner (the "examiner") conducted a hearing in the matter on March 14, 2012. At the hearing, Zacchia said that, before she began to work for BD, she worked for DB as a wedding consultant. Her manager at DB had insisted that she try out a new position, as a photographer. Zacchia did not want to change her position, but her manager told her that she should try it out and if she did not like it, she would be taken back to her position as consultant. Zacchia tried out the new position but she was not taken back as a consultant. She was fired. Zacchia conceded that she had been trained as a photographer, but said it had not been going "as well as they thought it would."
In addition, BD's Human Resources Director ("HRD") testified that Zacchia began working for BD on July 22, 2011. She usually worked four days during the week, as well as Saturdays and Sundays. She earned $9 per hour, plus a 3% commission on sales. Zacchia left her job at BD on September 13, 2011. She gave several reasons for doing so.
Zacchia testified that the store had been closed several days in August or September 2011 due to flooding and she had not been paid for those days. The HRD testified, however, that BD's employees were not told they would be paid for the days the store was closed for flooding. She noted that the company's policy was that hourly employees do not get paid when the store is closed for weather-related reasons.
Zacchia further testified that her manager made her feel "uncomfortable" when Zacchia suggested she might be going back to school. According to Zacchia, the manager said she was needed to work full-time. The HRD stated that Zacchia had been hired as a full-time employee, and Zaccia had never indicated on her employment application that she had plans to return to school, or to work on other than a full-time basis. Zacchia admitted that she never asked her manager for a reduction in hours so she could return to school.
Zacchia also testified that she was promised a raise from $9 to $10 an hour after working for one month. She said she worked at BD for two months and did not get the raise. The HRD stated, however, that when Zacchia was hired, she was paid $9 per hour and promised an increase in pay to $10 per hour, but Zacchia would not get the raise until after 90 days and an evaluation of her performance.
The HRD also stated that BD's Human Resources ("HR") department has an open-door policy and that if an employee feels uncomfortable about raising any issue with a manager, the employee can bring any concerns to the HR department or to the President of the company. Zacchia knew about the HR department, but did not complain to it about not being paid for days the store was closed due to flooding, or about not receiving the pay raise.
In a decision mailed on March 19, 2012, the examiner found that Zacchia was not disqualified pursuant to N.J.S.A. 43:21-5(a) due to the termination of her employment at DB. The examiner found that Zacchia did not quit her job. Rather, Zacchia was discharged because the employer did not like the job she was doing as a photographer. According to the examiner, Zacchia did the job to the best of her ability, and several months before she was discharged, the employer had changed her duties from wedding consultant to photographer.
The examiner determined that Zacchia's qualification for benefits should be considered under N.J.S.A. 43:21-5(b), which provides, among other things, that an employee may be disqualified for benefits on the basis of "misconduct." The examiner found that Zacchia was discharged because of the employer's dissatisfaction with her work and not for any "misconduct," as that term is defined in the statute.
The examiner determined, however, that Zacchia was disqualified for benefits under N.J.S.A. 43:21-5(a) as of September 11, 2011, because she left her job at BD voluntarily without good cause attributable to the work. The examiner found that Zacchia left her position at BD because she was not paid for days when the store was closed, her manager made her feel uncomfortable about wanting to go to school, and she did not receive the raise she thought she should receive.
The examiner determined that Zacchia was never promised she would be paid for days the business was closed for weather- related reasons. He noted that Zacchia had never brought her concerns about her manager or the pay raise to the HR department, and as a result, "the employer was never afforded the opportunity to address [her] concerns and take action." The examiner found that Zacchia "did not do what was necessary and reasonable to remain employed."
Zacchia appealed the determination of the Appeal Tribunal to the Board, which rendered a final decision mailed on July 3, 2012. The Board affirmed the Appeal Tribunal's decision. This appeal followed.
Zacchia argues that the Board erred by finding that she was disqualified for benefits under N.J.S.A. 43:21-5(a). In her brief, she sets forth facts about her employment at DB, but the Appeal Tribunal and the Board determined that she was not disqualified for benefits related to the termination of her employment at DB under either N.J.S.A. 43:21-5(a) or (b). Zacchia also sets forth facts concerning her employment at BD, some of which were not mentioned at the hearing.
The scope of our review in an appeal from a final determination of an administrative agency is strictly 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 only intervene "'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. Co. 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. (alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).
In this matter, the Appeal Tribunal and the Board found that Zacchia 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 the individual "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 "'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)).
We are convinced that there is sufficient credible evidence in the record to support the Appeal Tribunal's and the Board's determination that Zacchia left her job at BD voluntarily, not for reasons attributable to the work. Here, the record shows that Zacchia left her position at BD because she was not paid for days the store was closed due to flooding, because she did not receive a raise she expected, and because her manager made her uncomfortable when she raised the issue of returning to school.
The record fully supports the Appeal Tribunal's and the Board's determination. As the Board found, Zacchia's reasons were not sufficient to justify her decision to leave the ranks of the employed and to join the ranks of the unemployed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION