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Garden State Eye Center v. Board of Review

December 27, 2007

GARDEN STATE EYE CENTER, APPELLANT,
v.
BOARD OF REVIEW AND CHAYA S. AUERBACH, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, 89,119.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 3, 2007

Before Judges A.A. Rodríguez and C.L. Miniman.

Appellant Garden State Eye Center (Garden State), the employer of respondent Chaya S. Auerbach (Auerbach), appeals from an August 24, 2006, determination by respondent Board of Review (the Board) affirming a July 11, 2006, decision of the Appeal Tribunal (the Tribunal). The Tribunal reversed the ruling of the Deputy Director, Division of Unemployment Insurance, concluding that Auerbach was disqualified for benefits because she left work voluntarily. Because the decision of the Board is supported by credible evidence in the record, we affirm.

The administrative record reveals that on September 23, 2005, the Deputy Director disqualified Auerbach from receiving unemployment benefits effective August 7, 2005. The claimant appealed and on December 5, 2005, the Appeal Tribunal Examiner affirmed the disqualification. However, the Board remanded the case on January 30, 2006, for additional testimony from Auerbach and Garden State. On the date scheduled for the additional testimony, Garden State did not participate. As a result of the additional testimony from Auerbach, the Appeal Tribunal Examiner concluded that Auerbach was not disqualified from unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because she did not leave work voluntarily without good cause. Garden State then appealed to the Board of Review, which concluded that Garden State had good cause for not participating and once again remanded the matter to the Tribunal for a full hearing.

On June 29, 2006, Auerbach, represented by counsel, and Ziporah Rothkopf on behalf of Garden State both testified at length in a full hearing by telephone. The Appeal Tribunal Examiner made the following findings of fact on July 11, 2006:

The claimant worked for the above-named employer, as an Office Manager from 04/04/05 through 08/10/05, when separated from the job.

The claimant and employer entered into a contractual agreement on 3/22/05 wherein it was stipulated that she would be a salaried employee earning $25,000 a year for a 40 hour week. It further stipulated that upon the claimant[']s return from maternity leave she would be working part time between 25 to 30 hours per week.

When she did return from maternity leave, the claimant was told by the book keeper that her salary would be changed to $16.00 per hour for a 25 to 30 hour work week. The claimant wanted to discuss this with the owner. The claimant was concerned because she wanted to earn $25,000 per year even though her hours were reduced.

Once the claimant and employer were able to sit down and discuss the issue, the employer began to verbally abuse the claimant. During the course of the meeting, little of substantive nature was accomplished. The employer told the claimant she had too many personal issues and she needed to learn how to balance career with home life. The employer also called the claimant selfish and overly aggressive.

The claimant became upset over the hostile and confrontational nature of the discussion and decided she could not tolerate the unprofessional and abusive situation. Thus, she decided to quit. The claimant did not have an issue with the contract, all she wanted was further explanation concerning the hourly wage change.

The Appeal Tribunal Examiner concluded that Auerbach did not leave work voluntarily without good cause because the hostile and degrading manner in which Auerbach was treated by Garden State was sufficient cause to justify becoming unemployed. Consequently, she was not disqualified for benefits under N.J.S.A. 43:21-5(a). The Appeal Tribunal Examiner also determined that Auerbach was not disqualified by N.J.A.C. 12:17-11.5, which disqualifies a claimant if the claimant fails to accept or apply for suitable new work, because Auerbach did not refuse to accept the new work from Garden State but rather left because of the hostile and degrading manner in which she was treated. Garden State appealed and the Board adopted the Tribunal's findings of fact and opinion and affirmed, concluding that Garden State "was given a full and impartial hearing and a complete opportunity to offer any and all evidence." This appeal followed.

Garden State raises two issues on appeal. First, it contends that the record of the December 5, 2005, hearing has only one vague reference to verbal abuse during a meeting at which Garden State expressed its dissatisfaction that Auerbach was unable to work the required twenty-five to thirty hours per week and, as a consequence, the evidence is insufficient to support the Board's fact findings. It also urges that Auerbach had a duty to remain employed at the lower ...


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