NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3604-18T1
LUCILLE GABEL,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, and THREE STAR TOURS, INC.,
Respondents. ______________________________
Submitted March 12, 2020 – Decided April 15, 2020
Before Judges Alvarez and Suter.
On appeal from the Board of Review, Department of Labor, Docket No. 164,613.
Lucille Gabel, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Donna Sue Arons, Assistant Attorney General, of counsel; Ryan J. Silver, Deputy Attorney General, on the brief).
Respondent Three Star Tours, Inc., has not filed a brief. PER CURIAM
Lucille Gabel (petitioner) appeals from a final decision of the Department
of Labor and Workforce Development's Board of Review (Board) that sustained
the Appeal Tribunal's determination she was disqualified from unemployment
benefits because she left her employment voluntarily without good cause
attributable to the work. We affirm the Board's decision.
I.
Petitioner was employed by respondent Three Stars Tours, Inc.1 from July
2017 until August 10, 2018. Although initially hired on a temporary basis to
reconcile Three Stars' corporate tax returns, she later was given the
responsibilities of office manager and her salary increased. She was working
thirty-five hours a week when she resigned.
Two days later, petitioner applied for unemployment benefits, claiming
she was laid off, although she acknowledged at the subsequently conducted
hearing that work was available for her at her job. She was paid $795 in
unemployment benefits for the weeks ending August 18, 2018 through
September 1, 2018.
1 Three Stars' brief was suppressed on November 18, 2019. A-3604-18T1 2 In October 2018, the Division of Unemployment Insurance (Division)
disqualified petitioner from benefits on the ground she left work voluntarily
without good cause attributable to the work. The Division mailed petitioner a
Request for Refund seeking repayment of the benefits she received. Petitioner
appealed these determinations to the Appeal Tribunal.
A hearing was conducted by a hearing examiner. Petitioner testified she
left Three Stars on August 10, 2018. She described the company as
"dysfunctional" and that they did not "manage[] their business right." She
claimed she was asked to falsify payroll records. Ibid. She did not "want to
falsify QuickBook records." She was aware of these problems "from the very
beginning." She also complained the office was a "fire hazard" because there
was "no way out." Petitioner acknowledged she told her employer she was going
to stay for the rest of the summer in 2018, because it was their busy season.
Petitioner testified she did not have proof to substantiate her complaints.
She acknowledged she did not report Three Stars to any regulatory authorities
prior to leaving employment. She did not speak to the owners about her
concerns because she "[did not] think it would really matter." Petitioner
acknowledged she was not under a threat of discharge at the time she left. She
A-3604-18T1 3 did not ask to change her position because "[t]here was no other change of
position." She never asked for a leave of absence.
On the day petitioner left employment, she contends she was supposed to
make adjustments to the hours and driver's log of one of their bus drivers, she
learned the company was proceeding with a new accounting program and she
would be "the sole person responsible for their books[,]" and her supervisor had
an argument with another person she could overhear. She testified she left Three
Stars saying, "I'm done. I'm done. I'm going. No more. I'm done. I quit." In
her brief, she acknowledged saying "I'm not coming back."
The Appeal Tribunal denied petitioner's application for benefits under
N.J.S.A. 43:21-5(a) for voluntarily leaving work without good cause attributable
to the work. It found petitioner "did not present any evidence" to support her
allegations against her employer. She "had planned to leave at the end of
August, regardless of what had occurred on [August 10, 2018]." The Board
found there was available work for petitioner, and she was not threatened with
discharge. It found she did not raise any of her issues with Three Star or
regulatory agencies. The Board concluded petitioner left work voluntarily
without good cause attributable to the work and because of this, she was required
under N.J.S.A. 43:21-16(d) to refund the benefits she had received.
A-3604-18T1 4 Petitioner timely appealed to the Board. Her letter of appeal asked the
Board to subpoena Three Stars' insurance and payroll records, and to examine
them for evidence of falsification. Ibid.
The Board affirmed the Appeal Tribunal decision after examining the
hearing record "carefully." It found there was "no valid ground for a further
hearing" because petitioner had been given the ability to "offer any and all
evidence" and had been "given a full and impartial hearing."
Petitioner appeals the Board's decision, contending she left her
employment because she "was expected to participate in illegal activities and
work in an unsafe environment," citing to Casciano v. Board of Review, 300
N.J. Super. 570 (App. Div. 1997). Petitioner argues she should not be
disqualified for benefits due to the office's potential fire hazard, citing N.J.A.C.
12:17-9.4.
II.
Our review of an agency's decision is limited. Brady v. Bd. of Review,
152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep’t of Envtl. Prot.,
101 N.J. 95, 103 (1985)). "If the Board's factual findings are supported 'by
sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting
Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We will not intervene unless
A-3604-18T1 5 the Board's decision is "arbitrary, capricious, or unreasonable." Ibid. However,
we will review an agency's interpretation of a statute de novo. Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing Toll Bros.,
Inc. v. Twp. of W. Windsor, 173 N.J. 502 549 (2002)).
A person is disqualified from unemployment benefits if she leaves work
voluntarily and not for good cause attributable to the work. N.J.S.A. 43:21-5(a).
"Accordingly, benefits are available to a worker who voluntarily leaves [her]
job only if it [was] for 'good cause attributable to [the] work.'" Utley v. Bd. of
Review, 194 N.J. 534, 544 (2008) (third alteration in original) (quoting N.J.S.A.
43:21-5(a)).
N.J.A.C. 12:17-9.1(b) defines "good cause attributable to [the] 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."
"The test of 'ordinary common sense and prudence' must be utilized to determine
whether an employee's decision to leave work constitutes good cause." Brady,
152 N.J.
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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-3604-18T1
LUCILLE GABEL,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, and THREE STAR TOURS, INC.,
Respondents. ______________________________
Submitted March 12, 2020 – Decided April 15, 2020
Before Judges Alvarez and Suter.
On appeal from the Board of Review, Department of Labor, Docket No. 164,613.
Lucille Gabel, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Donna Sue Arons, Assistant Attorney General, of counsel; Ryan J. Silver, Deputy Attorney General, on the brief).
Respondent Three Star Tours, Inc., has not filed a brief. PER CURIAM
Lucille Gabel (petitioner) appeals from a final decision of the Department
of Labor and Workforce Development's Board of Review (Board) that sustained
the Appeal Tribunal's determination she was disqualified from unemployment
benefits because she left her employment voluntarily without good cause
attributable to the work. We affirm the Board's decision.
I.
Petitioner was employed by respondent Three Stars Tours, Inc.1 from July
2017 until August 10, 2018. Although initially hired on a temporary basis to
reconcile Three Stars' corporate tax returns, she later was given the
responsibilities of office manager and her salary increased. She was working
thirty-five hours a week when she resigned.
Two days later, petitioner applied for unemployment benefits, claiming
she was laid off, although she acknowledged at the subsequently conducted
hearing that work was available for her at her job. She was paid $795 in
unemployment benefits for the weeks ending August 18, 2018 through
September 1, 2018.
1 Three Stars' brief was suppressed on November 18, 2019. A-3604-18T1 2 In October 2018, the Division of Unemployment Insurance (Division)
disqualified petitioner from benefits on the ground she left work voluntarily
without good cause attributable to the work. The Division mailed petitioner a
Request for Refund seeking repayment of the benefits she received. Petitioner
appealed these determinations to the Appeal Tribunal.
A hearing was conducted by a hearing examiner. Petitioner testified she
left Three Stars on August 10, 2018. She described the company as
"dysfunctional" and that they did not "manage[] their business right." She
claimed she was asked to falsify payroll records. Ibid. She did not "want to
falsify QuickBook records." She was aware of these problems "from the very
beginning." She also complained the office was a "fire hazard" because there
was "no way out." Petitioner acknowledged she told her employer she was going
to stay for the rest of the summer in 2018, because it was their busy season.
Petitioner testified she did not have proof to substantiate her complaints.
She acknowledged she did not report Three Stars to any regulatory authorities
prior to leaving employment. She did not speak to the owners about her
concerns because she "[did not] think it would really matter." Petitioner
acknowledged she was not under a threat of discharge at the time she left. She
A-3604-18T1 3 did not ask to change her position because "[t]here was no other change of
position." She never asked for a leave of absence.
On the day petitioner left employment, she contends she was supposed to
make adjustments to the hours and driver's log of one of their bus drivers, she
learned the company was proceeding with a new accounting program and she
would be "the sole person responsible for their books[,]" and her supervisor had
an argument with another person she could overhear. She testified she left Three
Stars saying, "I'm done. I'm done. I'm going. No more. I'm done. I quit." In
her brief, she acknowledged saying "I'm not coming back."
The Appeal Tribunal denied petitioner's application for benefits under
N.J.S.A. 43:21-5(a) for voluntarily leaving work without good cause attributable
to the work. It found petitioner "did not present any evidence" to support her
allegations against her employer. She "had planned to leave at the end of
August, regardless of what had occurred on [August 10, 2018]." The Board
found there was available work for petitioner, and she was not threatened with
discharge. It found she did not raise any of her issues with Three Star or
regulatory agencies. The Board concluded petitioner left work voluntarily
without good cause attributable to the work and because of this, she was required
under N.J.S.A. 43:21-16(d) to refund the benefits she had received.
A-3604-18T1 4 Petitioner timely appealed to the Board. Her letter of appeal asked the
Board to subpoena Three Stars' insurance and payroll records, and to examine
them for evidence of falsification. Ibid.
The Board affirmed the Appeal Tribunal decision after examining the
hearing record "carefully." It found there was "no valid ground for a further
hearing" because petitioner had been given the ability to "offer any and all
evidence" and had been "given a full and impartial hearing."
Petitioner appeals the Board's decision, contending she left her
employment because she "was expected to participate in illegal activities and
work in an unsafe environment," citing to Casciano v. Board of Review, 300
N.J. Super. 570 (App. Div. 1997). Petitioner argues she should not be
disqualified for benefits due to the office's potential fire hazard, citing N.J.A.C.
12:17-9.4.
II.
Our review of an agency's decision is limited. Brady v. Bd. of Review,
152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep’t of Envtl. Prot.,
101 N.J. 95, 103 (1985)). "If the Board's factual findings are supported 'by
sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting
Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We will not intervene unless
A-3604-18T1 5 the Board's decision is "arbitrary, capricious, or unreasonable." Ibid. However,
we will review an agency's interpretation of a statute de novo. Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing Toll Bros.,
Inc. v. Twp. of W. Windsor, 173 N.J. 502 549 (2002)).
A person is disqualified from unemployment benefits if she leaves work
voluntarily and not for good cause attributable to the work. N.J.S.A. 43:21-5(a).
"Accordingly, benefits are available to a worker who voluntarily leaves [her]
job only if it [was] for 'good cause attributable to [the] work.'" Utley v. Bd. of
Review, 194 N.J. 534, 544 (2008) (third alteration in original) (quoting N.J.S.A.
43:21-5(a)).
N.J.A.C. 12:17-9.1(b) defines "good cause attributable to [the] 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."
"The test of 'ordinary common sense and prudence' must be utilized to determine
whether an employee's decision to leave work constitutes good cause." Brady,
152 N.J. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App.
Div. 1964)). An employee who has left work voluntarily has the burden of
proving "he [or she] did so with good cause attributable to [the] work." Id. at
218; N.J.S.A. 43:21-5(a).
A-3604-18T1 6 The record supports the Board's decision. Petitioner acknowledged that
when she left her employment, she was not threatened with discharge or
discipline and there was available work. She did not have proof to corroborate
her claims about the business' operations. She had not complained to any
regulatory authorities or even to the company supervisor. She chose to remain
with the company although she acknowledged being aware of problems from the
beginning. The president of the company testified at the hearing, denying
falsification of records. He testified petitioner did not complain to him about
the issues she raised at the hearing.
In Casciano, 300 N.J. Super. at 572, cited by petitioner, the employee
resigned after he was asked to intentionally overbill customers. He complained
to his employer about the practice and claimed he was threatened with discharge.
Id. at 574. He also looked for other employment before leaving his employer.
Id. at 573. We reversed the Board's decision that had disqualified the employee
from unemployment benefits, finding that the employee had good cause to
resign. Id. at 577.
In Casciano, we noted "[t]here is a clear public policy in this state to
protect employees who protest illegal activity by their employers." Ibid. We
recognized that the "petitioner's legitimate distress when required by his
A-3604-18T1 7 employer to act illegally or immorally be recognized as good cause for leaving."
Ibid.
The facts here are distinguishable from Casciano. Petitioner did not have
any proofs to substantiate her claims. She had no witnesses that supported her.
Her actions were not consistent with her claims. She did not look for another
job. She stayed even though she was aware of the issues from the beginning and
never complained. She was not threatened with termination. The employer
denied the allegations of illegality.
Petitioner complains the building where she worked was a fire hazard.
Under N.J.A.C. 12:17-9.4 "[a]n individual shall not be disqualified for benefits
for voluntarily leaving work if he or she can establish that working conditions
are so unsafe, unhealthful, or dangerous as to constitute good cause attributable
to such work." Petitioner had the burden to prove this regulation applied to her
situation. Ibid. However, she did not submit any competent evidence to the
Board showing that the workplace was "unsafe, unhealthful, or dangerous," and
never asked for a change in her working conditions.
The Board's decision was supported by the record. There was nothing
arbitrary, capricious, or unreasonable about the Board's decision to affirm the
Appeal Tribunal. Given this, petitioner was not entitled to unemployment
A-3604-18T1 8 benefits and is required to reimburse the benefits she received. See Bannan v.
Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).
Affirmed.
A-3604-18T1 9