ANN VILLA 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NOT FOR PUBLICATION WITHOUT THE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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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3961-15T3
ANN VILLA,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, and HUNTERDON ART
MUSEUM,
Respondents.
_____________________________
Submitted August 1, 2017 – Decided August 9, 2017
Before Judges Hoffman and Currier.
On appeal from the Board of Review, Department
of Labor, Docket No. 073-698.
Inglesino, Webster, Wyciskala & Taylor, LLC,
attorneys for appellant (Ellen O'Connell and
Joseph M. Franck, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Peter H. Jenkins, Deputy
Attorney General, on the brief).
Respondent Hunterdon Art Museum has not filed
a brief.
PER CURIAM
Claimant Ann Villa appeals from the April 11, 2016 decision
of the Board of Review (Board) finding her ineligible for
unemployment benefits pursuant to N.J.S.A. 43:21-5(a). After a
review of the contentions advanced on appeal in light of the record
before us and the applicable principles of law, we reverse.
Claimant was employed as Director of Development by defendant
Hunterdon Art Museum. Contending that she had been fired by the
museum, claimant submitted a claim for unemployment benefits. The
Deputy Director of Unemployment Insurance (Deputy) determined that
claimant had left work voluntarily, and therefore, she was
disqualified for benefits.
Following claimant's appeal of the determination, a
telephonic hearing was conducted before the Appeal Tribunal.
Claimant testified that during a meeting with the Museum Director
(Director), claimant was advised that she was not well-liked by
the staff at the museum, and if she was not going to change her
personality she would have to leave. Claimant responded that she
could not change her personality, it was what had made her
successful in her profession. "[P]resuming" that she was being
fired, claimant stated that she stood up, shook the Director's
hand, thanked her, and left the office with the understanding that
she had been terminated. The Director did not respond to
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claimant's words or actions and did not call her back into the
office.
The Museum Director disputed that claimant had been fired.
She testified that at the meeting she discussed with claimant that
she had alienated the staff and she needed to work more
collaboratively with her coworkers. The Director contended that
she did not intend to fire claimant at the meeting; she was
advising her that she needed to change her attitude. The Director
acknowledged that claimant stated to her: "So what you're asking
of me is I gotta change or [you're] letting me go?" The Director
replied, "I think you've gotta think about parting ways if you
can't change." The Director conceded during the hearing that if
claimant had not changed her attitude she would have been fired
"at a certain point . . . [a]bsolutely."
The Appeal Tribunal reversed the decision of the Deputy,
finding that claimant had not left the job voluntarily without
good cause attributable to the work. The Tribunal stated:
[T]he employer presented the claimant with the
option to leave. The claimant chose to leave
because her attitude was part of her success
and the expectation that she change it was []
unreasonable. The option to leave was given
by the employer with the intention of
terminating the claimant's employment.
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Following defendant's appeal, the Board of Review found that
claimant had chosen "to leave during a meeting with the executive
director when asked to work more collaboratively" and therefore,
had not left her employment for good cause attributable to the
work. The Board found claimant to be disqualified for benefits,
reversing the Tribunal's decision.
In this appeal, claimant argues that the Board erred in
finding her termination to have been voluntary, as her own
understanding that she had been fired was corroborated by the
Director's behavior at the end of the meeting.
We are mindful that our review of administrative agency
decisions is limited. We will not disturb an agency's action
unless it was clearly "arbitrary, capricious, or unreasonable."
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
N.J.S.A. 43:21-5(a) provides in pertinent part that an
employee who "has left work voluntarily without good cause
attributable to such work" is ineligible for unemployment
compensation benefits. Under this section, the threshold question
is whether an applicant for unemployment compensation benefits
left her job "voluntarily." If the separation from employment was
voluntary, the applicant is eligible for unemployment compensation
benefits only if that separation was for "good cause attributable
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to [the] work." N.J.S.A. 43:21-5(a); Utley v. Bd. of Review, 194
N.J. 534, 544 (2008).
Claimant argues that her separation from employment was not
voluntary. We agree.
In Lord v. Board of Review, 425 N.J. Super. 187, 189 (App.
Div. 2012), we considered whether a "compelled resignation"
constituted a voluntary separation from employment requiring a
disqualification for benefits. In that case, Lord was required
to use his own vehicle to perform his job duties. Ibid. When his
car broke down and he was unable to afford the necessary repairs,
Lord was told by his supervisor that he had to resign from his
employment. Id. at 190. Although he did not want to leave the
job, Lord felt that he had no choice and he considered himself to
have been terminated. Ibid.
In our review of the Board's determination that Lord had left
his job for personal reasons not attributable to the work, and
therefore, he was disqualified from receiving benefits, we
concluded that the decision to resign was made only by the
employer. Id. at 191. We stated that there was nothing voluntary
about Lord's separation from employment; he did not desire to
leave the job. Ibid. If his car had been operational, he would
have remained employed.
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Here, claimant was criticized in a meeting with her supervisor
and told that if she did not change her personality she would be
terminated. Defendant argues that claimant herself made the
decision to leave the job; the Museum had no intention of
terminating her at that time. Defendant contends that an on-the
job reprimand is not sufficient to categorize an employee's
departure as involuntary. This conversation, however, was more
than a reprimand. Claimant was told to "change her personality"
or suffer termination. Even if the Director did not intend to
discharge claimant that day, she made it clear at the hearing that
if a change was not made, termination was certain to occur at a
future time.
We find these circumstances to be similar to the "compelled
resignation" discussed in Lord. Claimant did not leave
voluntarily; she was advised that she would be terminated if she
did not change her personality. In her view, her personality was
what made her a successful development director. The decision
whether to go or stay was, therefore, not solely hers to make.
See Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953).
As she stated: "[W]hen I was told to change my personality or
leave . . . I didn't have an option." Claimant determined she did
not have a choice other than to leave her position; her resignation
was involuntary.
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Reversed.
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