PATRICK MULLEN, SR. VS. BOARD OF REVIEW (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NOT FOR PUBLICATION WITHOUT THE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-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

2 A-4108-15T4
 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.

3 A-4108-15T4
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,

4 A-4108-15T4
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

5 A-4108-15T4
(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

6 A-4108-15T4
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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