TAMYRA L. COTTMAN v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

 

(NOTE: The status of this decision is Published.)

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-1908-16T2

TAMYRA L. COTTMAN,

     Appellant,
                                         APPROVED FOR PUBLICATION
v.
                                                March 29, 2018
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE                        APPELLATE DIVISION
DEVELOPMENT, and QUALITY
MANAGEMENT COMPANY,

     Respondents.
__________________________________

         Submitted February 12, 2018 – Decided March 29, 2018

         Before Judges Sabatino, Ostrer and Whipple.

         On   appeal  from   the   Board  of   Review,
         Department    of    Labor    and    Workforce
         Development, Docket No. 101,930.

         Tamyra L. Cottman, appellant pro se.

         Gurbir S. Grewal, Attorney General, attorney
         for respondent Board of Review (Jason W.
         Rockwell, Assistant Attorney General, of
         counsel; Jessica M. Saxon, Deputy Attorney
         General, on the brief).

         Respondent Quality      Management    Company    has
         not filed a brief.

     The opinion of the court was delivered by

OSTRER, J.A.D.
      Tamyra L. Cottman appeals from a November 23, 2
016 Board of

Rev.ew order, affirming the Appeal Tribunal's decision denying

her   unemployment        benefits.         The    Tribunal     found   that   Cottman

voluntarily quit her job without good cause related to the work.

See 
N.J.S.A. 43:21-5(a).            We reverse.

      Cottman      quit     after     her        child   care    arrangements      fell

through.     She had been working as a residential counselor at a

group home for Quality Management Associates, Inc., since April

1, 2016.     She worked overnight from 11:00 p.m. to 9:00 a.m.,

Saturday through Tuesday.               Before her shift started on August

24, 2016, Cottman's babysitter unexpectedly quit.                        Cottman has

three children, all with special needs.                    She testified that the

eldest, who was thirteen at the time, was not responsible enough

to care for the other two.

      She explained that her employer's policy required her to

find a fellow employee to cover her shift, if she could not come

in.   She tried calling everyone on her contact list, but no one

was available.

      Cottman testified that she spoke to her supervisor, who

threatened she might be fired if she did not come in.                          Cottman

testified,    "I    was     like    I    might      just   (inaudible)     and     [the

supervisor] was like well we [sic] just getting off probation.

It's either you can come in or you might be fired.                        I wouldn't




                                             2                                 A-1908-16T2
play with your time."              Avoiding termination, Cottman chose to

resign.      The employer's representative did not dispute Cottman's

version of the conversation.               Indeed, she did not address it at

all.

       Cottman thereafter applied for unemployment benefits.                              The

deputy      denied     her    application,         finding    she     was    disqualified

because       she      left     work    voluntarily           without        good      cause

attributable to her work.                 The Tribunal affirmed on the same

ground, citing 
N.J.S.A. 43:21-5(a), as well as N.J.A.C. 12:17-

9.1(e)(2),       which      expressly     provides      that    voluntarily         leaving

work for the purpose of caring for children is not good cause.

The Board affirmed the Tribunal's decision without additional

reasoning.

       In her appeal, Cottman contends she was forced to quit her

job, because she could not leave her children unattended during

her August 24 shift, and her supervisor told her she might be

fired if she did not come in.

       We   deferentially        review    the      Board's    decision,       but     shall

reverse     if   it    is     arbitrary,      capricious,      or     unreasonable,        or

lacks the support of sufficient credible evidence.                           Brady v. Bd.

of   Review,     
152 N.J.   197,    210       (1997).      With    few    exceptions,

leaving work for personal reasons unrelated to the work, no

matter how reasonable, disqualifies an employee from receiving




                                              3                                     A-1908-16T2
unemployment benefits.            See 
N.J.S.A. 43:21-5(a) (disqualifying

an individual who "has left work voluntarily without good cause

attributable to such work");1 Utley v. Bd. of Review, 
194 N.J.
 534,    544    (2008)    (stating          that      if   an   individual        leaves    "for

personal        reasons,       however          compelling,        he       [or    she]      is

disqualified under the statute"); Brady, 
152 N.J. at 213-14;

Self v. Bd. of Review, 
91 N.J. 453, 460 (1982).

       However, when an employee knows that he or she is about to

be fired, the employee may quit without becoming ineligible.

Utley, 
194 N.J. at 548-49 (citing N.J.A.C. 12:17-9.5); Fernandez

v. Bd. of Review, 
304 N.J. Super. 603, 606 (App. Div. 1997)

("The    circumstances         must    be       so   compelling        as   to    indicate    a

strong probability that fears about the employee's job security

will in fact materialize, that serious impending threats to his

[or her] job will be realized, and that the employee's belief

that     his    [or     her]    job        is     imminently      threatened        is     well

founded.").        The regulation states, "If an individual leaves

work after he or she is notified by the employer of an impending

layoff     or     discharge,          he        or    she      shall    be       subject     to

disqualification unless the individual will be separated within

60 days."       N.J.A.C. 12:17-9.5.


1
   The person is disqualified until he or she has                                        become
reemployed and works eight weeks. 
N.J.S.A. 43:21-5(a).



                                                 4                                   A-1908-16T2
       In Shuster v. Board of Review, 
396 N.J. Super. 240 (App.

Div. 2007), a veterinarian's supervisor told her that "he did

not    think    her   employment      was    working       out";      "she    was     not    a

candidate for partner"; "she should start looking for another

job and he would be looking for a new associate."                             Id. at 243.

But, he never told her "she was being 'fired.'"                         Id. at 243-44.

Almost   two     months    later,     the    employee       tendered     a     letter       of

resignation,        effective     sixty      days       hence,   as    her     employment

contract required.          Id. at 243.             She resigned rather than be

fired    to     protect    her    professional           reputation.          Ibid.         We

reversed the Board's decision denying benefits, concluding the

employer      had   "conveyed     a   very       strong    likelihood        of    imminent

discharge," which justified the employee's resignation.2                             Id. at

247.

       Here,     neither    the       Tribunal       nor     the      Board       addressed

Cottman's contention that she resigned when faced with a similar

threat     of    termination.           When       an     agency      "overlook[s]          or

underevaluat[es] . . . crucial evidence," a reviewing court may

set aside the agency's decision.                    See Trantino v. N.J. State




2
  The Board held the discharge was not imminent because the
employee was not threatened with discharge within sixty days.
We held that the sixty-day period did not apply where, as in
that case, the parties' contract required notice of at least
sixty days. Id. at 246-47.



                                             5                                      A-1908-16T2
Parole Bd., 
166 N.J. 113, 192 (2001) (quoting State v. Johnson,


42 N.J. 146, 162 (1964)).

      Cottman   testified,      without       dispute,    that    her   supervisor

told her she might be fired.           Although Cottman's use of the word

"might" conveys some uncertainty, she obviously interpreted it

as a near-certainty.        She was reminded she had just completed

her probationary period.         She was told not to "play with [her]

time."    Rather than simply not appear for work and be discharged

–   and   suffer   the   harm    to    her     employment     prospects       –    she

resigned.    We presume that most employees would, for purposes of

future employability, prefer to resign rather than be fired.

See Utley, 
194 N.J. at 548 (noting that claimant who resigned

"chose to leave with dignity rather than be fired").

      Notably, had Cottman not appeared for work after alerting

her   supervisor    about    her      child     care     issue,   and   had       been

discharged, she would not have been ineligible for benefits.                        A

person is disqualified from benefits for simple misconduct if he

or she is discharged for an unauthorized absence from work "if

he or she did not have good cause for being absent from work, or

failed without justification to take steps necessary to notify

the employer of the absence and the reason therefore."                    N.J.A.C.




                                        6                                 A-1908-16T2
12:17-10.2(a).3        Although "good cause related to the work" under

the    voluntary       quit      statute,       
N.J.S.A.   43:21-5(a),      excludes

compelling personal reasons, see Utley, 
194 N.J. at 544, "good

cause for being absent from work" does include "any compelling

personal circumstance, including illness, which would normally

prevent    a   reasonable        person     under    the   same   conditions    from

reporting      to   work."       N.J.A.C.       12:17-10.2(b).      Assuming    that

caring for children based on the sudden loss of child care is

such   a   compelling         personal    circumstance,      Cottman     apparently

would have been eligible for benefits if she had been discharged

after failing to report to work.

       The statutory and regulatory scheme generally requires an

employee to take reasonable steps to preserve employment, rather

than quit in the face of difficulty.                   We have construed "good

cause related to the work" 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 (App. Div. 1983) (quoting Condo

v. Bd. of Review, 
158 N.J. Super. 172, 174 (App. Div. 1978)).

"A claimant has the 'responsibility to do whatever is necessary

and reasonable in order to remain employed.'"                     Brady, 
152 N.J.

 3
  The disqualification lasts eight weeks, without a reemployment
requirement. 
N.J.S.A. 43:21-5(b); N.J.A.C. 12:17-10.1.



                                            7                               A-1908-16T2
at 214 (quoting Heulitt v. Bd. of Review, 
300 N.J. Super. 407,

414 (App. Div. 1997)); see also Ardan v. Bd. of Review, ___ N.J.

___,   ___   (2018)   (slip   op.   at   26-27)   (finding   claimant   who

voluntarily left work due to a medical condition failed to prove

there was "no other suitable work available," which she could

have performed within the limits of her disability, therefore

disqualifying her from benefits under N.J.A.C. 12:17-9.3).

       However, the import of Shuster and N.J.A.C. 12:17-9.5 is

that an employee need not wait to be fired when discharge is

imminent.    At that point, the employee may resign and still be

eligible for benefits.4       Cottman resigned under these conditions.

       Reversed.




4
  We need not address the extent to which an employee may secure
benefits by quitting, if the imminent discharge is for simple
misconduct or worse, which would otherwise subject the employee
to a period of disqualification.



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