Opinion
DOCKET NO. A-5583-10T1
05-29-2012
THERESA A. ZAPATA, Appellant, v. BOARD OF REVIEW and EXTENSIS INC., Respondents.
Arykah Asheley argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Ms. Asheley, on the briefs). Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). Respondent Extensis Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Board of Review, Department of Labor, Docket No. 301,986.
Arykah Asheley argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Ms. Asheley, on the briefs).
Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent Board of Review (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief).
Respondent Extensis Inc. has not filed a brief. PER CURIAM
Appellant Theresa A. Zapata appeals from a June 1, 2011 final decision of the Board of Review (the Board) of the Department of Labor determining that she was ineligible for unemployment benefits because she left her employment voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). We affirm.
An Appeal Tribunal hearing was conducted on October 22, 2010, at which Zapata and her employer testified. Zapata had worked as an office manager for Extensis since October 14, 2008. On August 10, 2010, Larry Lewis, then Extensis' vice-president, met with Zapata in his office about the quality of her work. The parties characterized the volume of the conversation differently, Zapata stating that the discussion was "loud[,]" while Lewis insisted there was no screaming or yelling. Regardless, it is undisputed that Zapata found the meeting offensive.
Lewis said words to the effect of "if [you] don't like [criticism], [you] could leave . . . ." Zapata insisted that Lewis's use of this phrase meant that she was fired, claiming that he had previously used the expression when instructing her to fire other employees. Lewis insisted that he never told Zapata to leave her employment, but that he "just reminded her that [through] the door she entered everyday she could leave." He further stated that after their conversation, she got up, walked to the door, and said that he could inform her supervisor, the vice-president of sales and marketing, of "what happened." He understood that Zapata was quitting as a result of their conversation, but did not fire her. Lewis "never said get out[,] never said leave."
Crediting the employer's version of events and not Zapata's, the Appeal Tribunal found that the claimant became defensive during the course of the meeting, but was not under any threat of termination or a layoff. Continuing work was therefore available to her. Accordingly, the Appeal Tribunal found that Zapata "walked out" and "failed to return to work." Because Zapata left work voluntarily without good cause attributable to the work, she was disqualified for benefits.
Zapata asserts on appeal that the Appeal Tribunal decision was erroneous because she was the more credible witness. Zapata makes the further point that, in any event, the Board erred in its decision because separation from employment under these circumstances constituted good cause attributable to the work.
The burden of proof rests upon Zapata to establish her right to unemployment compensation. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). Our standard of review of agency determinations is limited. In re Stalworth, 208 N.J. 182, 184 (2011); In re Taylor, 158 N.J. 644, 656 (1999). We defer to such decisions, unless they are found to be arbitrary, capricious, or unsupported by substantial credible evidence in the record as a whole. Russo v. Bd. of Trs., Police & Fire Retirement Sys., 204 N.J. 14, 27 (2011); In re Carter, 191 N.J. 474, 482 (2007). Additionally, we ask whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We do not substitute our judgment for that of an administrative agency as to the persuasiveness of the evidence. In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997). We do not "weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)). We only intercede when the interests of justice require it. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001).
We see no need to intercede here. The final decision was based on a credibility determination, and nothing in the record causes us to reach a different conclusion. We will not substitute our judgment for the Board's under these circumstances. The decision to credit the employer and not the employee was not so clearly mistaken as to require our intervention in the interests of justice.
With regard to Zapata's second point, we do not agree that the meeting with the employer during which she was criticized, was the equivalent of a work environment so hostile and degrading as to have created good cause for separation from employment. In fact, according to Zapata, she had previously been considered a good and effective worker to the point of her meeting with Lewis. That one meeting was simply not "good cause" within the meaning of the statute.
Accordingly, since the determination was grounded in credibility, and nothing in the record warrants disturbing that decision, the Board's decision was not arbitrary, capricious, or unreasonable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION