PATRICK MULLEN, SR. VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4108-15T4
PATRICK MULLEN, SR.,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR and ADP TOTALSOURCE
COMPANY XXI, INC.,
Respondents.
_________________________________
Submitted August 15, 2017 – Decided August 22, 2017
Before Judges Manahan and Gilson.
On appeal from the Board of Review, Department
of Labor, Docket No. 73,720.
Patrick Mullen, Sr., appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review,
Department of Labor (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Peter
H. Jenkins, Deputy Attorney General, on the
brief).
Respondent ADP TotalSource Company XXI, Inc.
has not filed a brief.
PER CURIAM
Patrick Mullen, Sr. appeals from a final agency decision of
the Board of Review (Board), finding him disqualified from
unemployment benefits after determining he left work voluntarily
from ADP TotalSource Company (ADP) without cause attributable to
his work. Mullen argues that he established good cause within the
meaning of N.J.S.A. 43:21-5(a), thereby entitling him to
unemployment benefits. The determination by the Board reversed a
decision of the Appeal Tribunal (Tribunal). Since the Board's
decision was rooted in facts within the record and was consistent
with relevant law, we affirm.
We discern the following facts taken from the record. Mullen
was employed by ADP as a bookkeeper from January 13, 2012 through
August 4, 2015. Upon returning from vacation on August 3, 2015,
Mullen was informed that layoffs had occurred while he was away.
The next day, Mullen resigned from ADP premised upon his belief
that ADP would be reducing his hours by one day a week, which
would result in a twenty percent reduction in pay and present a
financial hardship for his family. Mullen maintained throughout
the administrative proceedings that he would not have resigned if
his pay and hours remained the same.
Mullen filed for unemployment benefits. Upon review, the
Deputy Director of the Division of Unemployment and Disability
(Deputy) found that Mullen was disqualified for benefits as he
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voluntarily left his employment without good cause. After Mullen
appealed the Deputy's decision, a telephone hearing was conducted
before the Tribunal.
During the telephonic hearing, Carol Jeanette Jorgensen, a
partner at ADP, testified that no changes to Mullen's employment
(hours of work) were going to be made at the time of his
resignation. A number of emails exchanged between Jorgensen and
Mullen referenced Mullen's position that he would not accept a
reduction in pay and hours. Jorgensen also noted that, after his
resignation, Mullen declined an offer by ADP to continue his
employment on a part-time basis until Christmas while he searched
for a new employment. Mullen denied receiving the "continued
employment" email, but stated that had he received the email, it
would not have altered his decision to resign.1
The Tribunal reversed the Deputy's determination finding that
Mullen demonstrated good cause and was not disqualified from
benefits. ADP appealed the decision to the Board. Subsequent to
its review, the Board adopted the Tribunal's finding of facts
except for the inaccurate finding that there would have been a
twenty-five percent reduction in Mullen's compensation. The Board
concluded that the accurate amount was a twenty-percent reduction
1
The emails are not part of the appellate record.
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in compensation, which was not substantial and did not amount to
good cause for Mullen's resignation. Accordingly, the Board
reversed the Tribunal's decision and disqualified Mullen for
benefits. This appeal followed.
Mullen raises one point on appeal.
POINT I
[MULLEN] LEAVING HIS JOB DUE TO A SIGNIFICANT
REDUCTION IN PAY AND HOURS DUE TO LOSS OF
BUSINESS BY THE EMPLOYER CONSTITUTES GOOD
CAUSE AND, THEREFORE[,] HE SHOULD NOT HAVE
BEEN DISQUALIFIED FOR BENEFITS.
The court's role in reviewing administrative agency decisions
involving unemployment benefits is generally limited. Brady v.
Bd. of Review, 152 N.J. 197, 210 (1997). The court defers to
factual findings where "supported 'by sufficient credible
evidence[.]'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453,
459 (1982)). "[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. Turnpike Auth., 137 N.J. 8,
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27 (1994). In sum, the scope of appellate review is confined to
determining whether the agency decision offends the State or
Federal Constitution; whether such action violated 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.
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). Although the statute
does not define "good cause," "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
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(App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super.
172, 174 (App. Div. 1978)).
In determining whether an employee had "good cause" to leave
his employment, the court applies a test of "ordinary common sense
and prudence." Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52
(App. Div. 1964). "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, Mullen claims that he did not voluntarily
resign. Rather, he claims that a twenty-percent reduction in his
pay constituted an "involuntary termination" of his position and
qualified him for unemployment benefits. We disagree.
This court has held that when an individual gives up partial
employment that ordinarily does not constitute "good cause."
Zielenski, supra, 85 N.J. Super. at 53. In our decision, we noted
with approval the Appeal Tribunal's observation that, "[i]t is
claimant's responsibility to do whatever is necessary and
reasonable in order to remain employed." Id. at 53-54.
In sum, we conclude the Board's decision to deny Mullen
benefits is supported by substantial credible evidence in the
record. Further, in application of our highly deferential standard
of review, we find no reason to interfere with the Board's decision.
The record amply supports the Board's determination that Mullen
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resigned voluntarily predicated upon his personal belief that his
compensation would be reduced. 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 v. Bd. of Review,
Dep't of Labor, 194 N.J. 534, 544 (2008); 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 employment 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) (alteration in original) (quoting
Domenico, supra, 192 N.J. Super. at 288).
In closing, we note that Mullen's precipitous decision to
resign rather than accept a potential reduction in pay or to work
part-time, without the prospect of employment elsewhere, was
objectively unreasonable and was at odds with his concern of
financial hardship.
Affirmed.
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