SUBHASH AGRAWAL VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4152-17T2
SUBHASH AGRAWAL,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and PASSAIC VALLEY
SEWERAGE COMMISSION,
Respondents.
____________________________
Submitted September 11, 2019 – Decided September 18, 2019
Before Judges Haas and Enright.
On appeal from the Board of Review, Department of
Labor, Docket No. 140,827.
Subhash Agrawal, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa H. Raksa,
Assistant Attorney General, of counsel; Daniel Pierre,
Deputy Attorney General, on the brief).
Respondent Passaic Valley Sewerage Commission has
not filed a brief.
PER CURIAM
Appellant Subhash Agrawal appeals from the April 5, 2018 final decision
of the Board of Review (Board), which affirmed the February 23, 2018 decision
of the Appeal Tribunal that appellant was disqualified from receiving benefits
pursuant to N.J.S.A. 43:21-5(a). The Board denied Agrawal's benefits, finding
he left his employment at respondent Passaic Valley Sewerage Commission
(PVSC) voluntarily without good cause attributable to the work. We affirm.
Agrawal was a chemist employed by PVSC from 1998 to the end of 2017.
In 2016 and 2017, before his employment ended with PVSC, he received a
number of disciplinary notices for violating personnel policies and procedures.
The violations included "neglect of duty," "failure to perform duties,"
"incompetence or inefficiency" and "falsification of documents." In August
2017, Agrawal signed a "Last Chance Agreement," which outlined charges
against him due to his misconduct. In paragraph 3 of that agreement, Agrawal
admitted to the factual basis of the charges filed against him, and entered into
this agreement in lieu of being discharged from PVSC. Essentially, he was given
one "last chance" to correct his conduct. Unfortunately, since PVSC claimed
his misconduct continued, PVSC advised Agrawal it would recommend his
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termination. His potential termination was to be considered at an executive
session in November 2017.
Instead of contesting the termination, Agrawal retained an attorney,
tendered a resignation letter to PVSC acknowledging his last day of employment
would be December 31, 2017, and entered into a settlement agreement with
PVSC. The settlement agreement allowed him to retire, rather than be
terminated. It also ensured he would receive severance pay and keep his pension
and health benefits, as well as his accrued sick days and vacation time. PVSC
further agreed not to interfere with Agrawal's pursuit of unemployment benefits.
In January 2018, Agrawal sought, but was denied, unemployment
benefits. A Deputy of the Division of Unemployment and Disability Insurance
determined that Agrawal resigned voluntarily and without good cause
attributable to the work. Agrawal appealed this decision to the Appeal Tribunal
but the Appeal Tribunal found he was disqualified for unemployment benefits
since he left work voluntarily pursuant to the settlement agreement. Agrawal
again appealed this determination but the Board affirmed the findings of the
Appeal Tribunal. The present appeal followed.
Our review of an administrative agency decision is limited. Brady v. Bd.
of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made
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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)). "If the Board's factual findings are supported 'by sufficient credible
evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of
Review, 91 N.J. 453, 459, (1982)). We also give due regard to the agency's
credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App.
Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or
unreasonable, the agency's ruling should not be disturbed." Brady, 152 N.J. at
210.
"The underlying purpose of the Unemployment Compensation Law 'is to
provide some income for the worker earning nothing because he is out of work
through no fault or act of his own.'" Futterman v. Bd. of Review, 421 N.J. Super.
281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady, 152 N.J. at 212)
(internal quotation marks omitted). A person is disqualified for benefits:
For 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 . . . .
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[N.J.S.A. 43:21-5(a).]
An employee who has left work voluntarily has the burden of proving that
he or she "did so with good cause attributable to work." Brady, 152 N.J. at 218;
N.J.A.C. 12:17-9.1(c). "While the statute does not define 'good cause,' our
courts 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)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to
such work" 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."
An employee who leaves work for good, but personal, reasons is not
deemed to have left work voluntarily with good cause. Brady, 152 N.J. at 213;
Self, 91 N.J. at 457; 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 good cause for
leaving work voluntarily.'" Domenico, 192 N.J. Super. at 288 (quoting Medwick
v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "'The decision to
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leave employment must be compelled by real, substantial and reasonable
circumstances . . . attributable to the work.'" Shuster v. Bd. of Review, 396 N.J.
Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304
N.J. Super. 603, 606 (App. Div. 1997)). "[I]t is the employee's responsibility to
do what is necessary and reasonable in order to remain employed." Domenico,
192 N.J. Super. at 288.
Here, the Tribunal found Agrawal's possible discharge was contingent
upon the outcome of the executive session. It also concluded Agrawal assumed
he would be discharged, prompting him to sign the settlement agreement and
retire. The Tribunal determined Agrawal left his job to avoid losing his pension
and other benefits. Thus, it found Agrawal was disqualified for unemployment
benefits under N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.1(e)(8).
Since Agrawal's termination was not a certainty, his decision to sign the
final settlement agreement with PVSC was for a personal reason, not a reason
so compelling that Agrawal had no choice but to leave. Thus, we are satisfied
the determination that Agrawal was not terminated, but left work voluntarily
without good cause attributable to the work is amply supported by substantial
credible evidence in the record as a whole, and is not arbitrary, capricious or
unreasonable.
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Affirmed.
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