JEFFREY ZIEMBA VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0051-18T4
A-0257-18T4

JEFFREY ZIEMBA,

Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
and MOL (AMERICA) INC.,

Respondents.
__________________________

Submitted October 7, 2019 – Decided December 10, 2019

Before Judges Rothstadt and Moynihan.

On appeal from the Board of Review, Department of
Labor, Docket Nos. 149,516 and 149,519.

Jeffrey Ziemba, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Sean Patrick
Havern, Deputy Attorney General, on the briefs).

Respondent MOL (America) Inc. has not filed a brief.
PER CURIAM

In these back-to-back appeals, which we have consolidated for purposes

of this decision, Jeffrey Ziemba appeals from the Board of Review's final agency

decisions imposing a disqualification for unemployment benefits because he left

work voluntarily without good cause and holding him liable for a refund of

benefits paid for two separate periods. Appellant contends in separate merits

briefs:

POINT ONE

THE APPEAL TRIBUNAL ERRED DENYING
UNEMPLOYMENT BENEFITS TO APPELLANT
SINCE HIS EMPLOYMENT WAS
INVOLUNTARILY TERMINATED.

POINT TWO

THE DEPARTMENT OF LABOR FAILED TO
ENFORCE THE UNEMPLOYMENT
COMPENSATION LAW STATUTE PROVISION
ENCOURAGING EMPLOYERS TO PROVIDE
MORE STABLE EMPLOYMENT.

POINT THREE

THE DEPARTMENT OF LABOR FAILED TO
PROVIDE EQUAL PROTECTION UNDER THE
[FOURTEENTH] AMENDMENT OF THE
CONSTITUTION BY DENYING APPELLANT
BENEFITS THAT ARE ROUTINELY GRANTED TO
OTHER CLAIMANTS IN THE SAME
CIRCUMSTANCES.

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 and

POINT ONE

THE DECISION THAT THE APPEALS TRIBUNAL
AND BOARD OF REVIEW RELIED ON TO
DISQUALIFY APPELLANT FROM ENTITLED
BENEFITS WAS INCORRECT AND ONCE
OVERTURNED REQUIRES THE OVERTURNING
OF THIS DECISION.

We are unpersuaded by these arguments and affirm both Board decisions.

On an appeal from a deputy's re-determination that appellant was

disqualified for benefits, the Appeal Tribunal found appellant, having been

informed in October 2016 of a planned 2018 closing of his employer-company

before he reached his sixtieth birthday at which he would have qualified for

post-retirement medical benefits, advised his employer that unless it

"restructured his existing salary[,] he was providing his two[-]week notice of

voluntary resignation." The Appeal Tribunal ruled appellant was disqualified

for benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without

good cause attributable to such work, finding his decision to tender his

resignation notice

was based upon his recognition that his position could
be eliminated some [two] years into the future, at which
time the claimant would not have reached the
qualifying age in order to be eligible for his retirement
medical benefits. The claimant has provided no

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 evidence that a layoff was imminent, as his position was
safe for the foreseeable future. While this lack of
medical benefits before age [sixty] is an unfortunate
situation involving the mandatory age requirement for
these benefits in question, the matter is a personal
circumstance, unrelated to the actual working
conditions. Further, there was no proof provided to
show that the employer was contractually obligated to
restructure the claimant's salary when the request was
made. As the claimant's resignation date was effective
for [November 18, 2016], which preceded the date of
claim, the claimant is disqualified for benefits as of
[November 13, 2016], under N.J.S.A. 43:21-5(a), as the
claimant left work voluntarily without good cause
attribute to such work.

The Appeal Tribunal also determined appellant was liable, pursuant to N.J.S.A.

43:21-16(d), for a refund of $2628 in benefits paid.

In a separate appeal from the Director of the Division of Unemployment

and Temporary Disability Insurance's request for a refund imposing liability to

refund $16,425 in paid benefits, the Appeal Tribunal applied N.J.S.A. 43:21-

16(d) and ruled appellant was obligated to refund the amount paid to which he

was not entitled based on the prior decision holding appellant disqualified for

benefits.

Our review of decisions by administrative agencies is limited. In re

Stallworth, 208 N.J. 182, 194 (2011); Brady v. Bd. of Review, 152 N.J. 197, 210

(1997). An agency's determination must be sustained "unless there is a clear

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showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206

N.J. 14, 27 (2011) (citing In re Herrmann, 192 N.J. 19, 27-28 (2007)). "[I]f

substantial evidence supports the agency's decision, 'a court may not substitute

its own judgment for the agency's even though the court might have reached a

different result[.]'" In re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood

v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). The burden of proof

rests with the employee to establish a right to collect unemployment benefits.

Brady, 152 N.J. at 218.

New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -

71, provides in pertinent part that an individual who leaves "work voluntarily

without good cause attributable to such work" is disqualified from receiving

unemployment benefits "[f]or the week in which the individual has left work

voluntarily without good cause attributable to such work" until such time as the

individual becomes re-employed, works eight weeks, and earns "in employment

at least ten times the individual's weekly benefit rate[.]" N.J.S.A. 43:21-5(a).

The statute does not define "good cause." That term, however, has been

construed to mean a "'cause sufficient to justify an employee's voluntarily

leaving the ranks of the employed and joining the ranks of the unemployed.'"

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Brady, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super.

284, 287 (App. Div. 1983)).

Appellant's testimony at the June 5, 2018 Appeal Tribunal hearing

supports the Appeal Tribunal's determination that he left employment without

good cause; he recounted:

[O]n November 4[, 2016] I requested that my salary be
restructured. The restructuring I proposed would[]
have been cost free to the company and entailed my
dropping . . . company[-]provided medical insurance
and increasing my salary. On that date I stated that if
the company didn't agree to the salary restructuring that
I would resign in two weeks. . . . The company chose
the latter and summarily told me to leave immediately
. . . . It should be noted that the company paid me for a
week or two after November 4[] in spite that I was no
longer working.

The company's declination of appellant's unilateral demand that the

employer restructure his compensation, which the employer had no obligation

to do, did not amount to good cause attributable to work sufficient to justify his

leaving work. Nor did the distant company closing justify appellant's leaving

employment. See N.J.A.C. 12:17-9.5 (allowing unemployment benefits to

individuals "notified by the employer of an impending layoff or discharge"

resulting in separation from employment within sixty days); see also Brady, 152

N.J. at 217-18.

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 Furthermore, the employer's acceptance of appellant's resignation and

resultant separation "shall be reviewed as a voluntarily leaving work issue as of

the effective date of the resignation." N.J.A.C. 12:17-9.7(a).

The record supports the Board's decision to affirm the Appeal Tribunal's

determination that appellant left work voluntarily without good cause. We will

not disturb that decision.

Inasmuch as appellant was disqualified for benefits, he was statutorily

obligated "to repay those [paid] benefits in full." See N.J.S.A. 43:21-16(d)(1).

We, therefore, affirm the Board's decisions affirming the Appeal Tribunal's

determinations that appellant was liable to refund both $2628 and $16,425.

To the extent not here addressed, we determine appellant's remaining

arguments to be without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(1)(E).

Affirmed.

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