J.S. VS. BOARD OF REVIEW (DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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-3540-19
J.S.,1
Appellant,
v.
BOARD OF REVIEW,
and BENIHANA NATIONAL
CORP.,
Respondents.
___________________________
Submitted June 3, 2021 – Decided June 24, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Board of Review, Department of
Labor, Docket No. 201,135.
J.S., appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Donna Arons, Assistant
Attorney General, of counsel; Kendall J. Collins,
Deputy Attorney General, on the brief).
1
We use initials to protect appellant's privacy.
PER CURIAM
J.S. appeals from a Board of Review (Board) February 20, 2020 final
agency decision, adopting an Appeal Tribunal (Tribunal) determination that she
is disqualified from receiving unemployment compensation benefits because she
left her job without good cause attributable to the work. See N.J.S.A. 43:21-
5(a). We affirm.
J.S. began working for respondent Benihana National Corp. as a hostess
in September 2018. On August 23, 2019, she sought treatment from her mental
healthcare provider for what she described as a mental breakdown. At that time,
J.S. reported that her psychological issues were interfering with her ability to
perform tasks at work.
On September 27, 2019, J.S. did not go to work due to her mental
breakdown. She went to a hospital, where she was advised to consult with her
psychiatrist in order to adjust her medication regime. J.S. did not request or
obtain approval from her employer to miss the shift or any shift thereafter, or to
take medical leave.
On October 3, 2019, J.S. returned to her mental health provider for
treatment related to her breakdown. By October 16, 2019, she was ready to
return to work, so she obtained a letter from her clinician requesting that her
A-3540-19
2
employer excuse the time she was away. The same day, J.S. contacted her
supervisor, who told her to return on October 21, 2019, to discuss her
employment. At the meeting, J.S. presented the letter she obtained from her
clinician and requested to return to work. Her supervisor advised her that she
had been terminated for abandoning her position but invited her to re-apply
through respondent's online application portal. She was not re-hired.2
J.S. applied for unemployment benefits on October 20, 2019 but was
denied. She appealed to the Tribunal and appeared for a telephonic hearing on
January 16, 2020. In support of her appeal, J.S. produced the letter she obtained
from her clinician. After explaining the events that led to her termination, the
appeals examiner asked if J.S. had any family members or friends that could
have advised her employer of the situation. J.S. testified that she did but did not
have anyone call because she "wasn't mentally thinking right."
The Tribunal found J.S. had "left work voluntarily without good cause
attributable to the work and [was therefore] disqualified for benefits as of
[September 22, 2019], in accordance with N.J.S.A. 43:21-5(a)." She appealed
2
J.S. testified that she was rehired during the October 21, 2019 meeting, but
her supervisor decided not to bring her back later that week. Whether or not she
was actually rehired, J.S. would not have become eligible for benefits until she
completed eight weeks of work after becoming reemployed. See N.J.S.A. 43:21-
5(a).
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3
her disqualification to the Board, which affirmed the Tribunal's decision. This
appeal ensued.
In her pro se brief, J.S. raises the following argument for our
consideration:
POINT I
THE APPEAL TRIBUNAL AND BOARD OF
REVIEW DENIED MY CLAIM FOR
UNEMPLOYMENT BENEFITS TWICE. THEY DID
NOT TAKE INTO ACCOUNT THAT I WAS IN
NEED OF MEDICAL ATTENTION. THE
CIRCUMSTANCES SURROUNDING THE WAY
[MY EMPLOYER] AND I PARTED WAS DUE TO A
MEDICAL EMERGENCY, A MENTAL
BREAKDOWN. I HAVE DOCUMENTED PROOF
THAT THE DEPARTURE WAS NOT VOLUNTARY,
BUT NECESSARY.
Our review of decisions by administrative agencies is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). The "final determination of an
administrative agency . . . is entitled to substantial deference." In re Eastwick
Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 541 (2016). We reverse only
if "the decision is 'arbitrary, capricious, or unreasonable,' the determination
'violate[s] express or implied legislative policies,' the agency's action offends
the United States Constitution or the State Constitution, or 'the findings on
which [the decision] was based were not supported by substantial, credible
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4
evidence in the record.'" Ibid. (alterations in original) (quoting Univ. Cottage
Club of Princeton N.J. Corp. v. N.J. Dep't of Env't Prot., 191 N.J. 38, 48 (2007)).
"The burden of demonstrating that the agency's action was arbitrary,
capricious[,] or unreasonable rests upon the person challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.
2006).
Under N.J.S.A. 43:21-5(a), a person is ineligible for unemployment
benefits if he or she leaves work voluntarily without good cause attributable to
such work. 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."
Individuals who leave work for a legitimate, but personal reason, however, do
not qualify for unemployment compensation under N.J.S.A. 43:21-5(a). See
Brady v. Bd. of Review, 152 N.J. 197, 213 (1997) (stating N.J.S.A. 43:21-5(a)
was amended "in 1961 to disqualify claimants who left work for purely personal
reasons"). Such reasons include voluntarily terminating one's employment
because the requirements of the work are harmful to a pre-existing condition
which does not have a work-related origin. Stauhs v. Bd. of Review, 93 N.J.
Super. 451, 457-58 (App. Div. 1967).
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"When a non-work connected physical and/or mental condition makes it
necessary for an individual to leave work due to an inability to perform the job,
the individual shall be disqualified for benefits for voluntarily leaving work."
N.J.A.C. 12:17-9.3(b). However, "an individual who has been absent because
of a . . . [pre-existing] mental condition shall not be subject to disqualification
for voluntarily leaving work if the individual has made a reasonable effort to
preserve his or her employment, but has still been terminated by the employer."
N.J.A.C. 12:17-9.3(c). An employee's "reasonable effort is evidenced by the
employee's notification to the employer, requesting a leave of absence[,] or
having taken other steps to protect his or her employment." Ibid.We discern no basis to reverse the Board's determination that J.S. failed
to sustain her burden of establishing she left work voluntarily for good cause
attributable to the work. She did not present any evidence demonstrating her
condition was caused, N.J.A.C. 12:17-9.1(b), or aggravated, N.J.A.C. 12:17-
9.3(b), by her employment. J.S. also failed to establish that she made any effort
to preserve her employment prior to or after her voluntary departure. She
initially sought treatment on August 23, 2019, at which time she reported her
breakdown was interfering with her ability to perform tasks at work. Her first
absence was on September 27, 2019. During the thirty-five days that elapsed,
A-3540-19
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J.S. did not take any steps to preserve her employment. Nor did she have anyone
contact her employer after she stopped showing up to work, despite having
friends and family members that could have. Although we are sympathetic to
the challenges posed by fulfilling one's employment obligations while dealing
with mental health issues, unemployment benefits are not available to "claimants
who [leave] work for purely personal reasons." Brady, 152 N.J. at 213.
Affirmed.
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