December 27, 2007
GARDEN STATE EYE CENTER, APPELLANT,
BOARD OF REVIEW AND CHAYA S. AUERBACH, RESPONDENTS.
On appeal from the Board of Review, Department of Labor, 89,119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 rate of pay offered by Garden State, as we previously held in Goebelbecker v. State, 53 N.J. Super. 53 (App. Div. 1958).
Second, Garden State argues that the Board erred in concluding that Auerbach was harassed in any fashion. It urges that a mere discussion about Auerbach's insufficient time commitment "could hardly be construed as harassment to justify [Auerbach's] departure from her job." Garden State contends that one vague reference to verbal abuse does not support a conclusion of harassment, unlike Associated Utility Services, Inc. v. Board of Review, 131 N.J. Super. 584, 587, 589 (App. Div. 1974) (finding substantial credible evidence to support Board determination that "[i]ntentional harassment of an employee . . . is an abnormal working condition and constitutes good cause for leaving work voluntarily" where the claimant was not "merely over-sensitive"). It asserts that here there was mere dissatisfaction with working conditions, which "does not constitute good cause for leaving work voluntarily," as we held in Zielenski v. Board of Review, 85 N.J. Super. 46, 54 (App. Div. 1964), and Medwick v. Board of Review, 69 N.J. Super. 338, 345 (App. Div. 1961).
The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Constr. Co., Inc. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the party challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The statute in question provides that:
An individual shall be disqualified for benefits:
(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . . [N.J.S.A. 43:21-5(a).]
"We have consistently held that causes personal to a claimant and not attributable to the work come within the disqualification of the statute." Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 46 (App. Div. 1979); White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977); Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967); Zielenski, supra, 85 N.J. Super. at 53-54.
If the employee voluntarily quits for personal reasons, benefits are not available. Self v. Bd. of Review, 91 N.J. 453, 460 (1982) (holding that difficulty in getting to work was not good cause attributable to the work); Roche v. Bd. of Review, 156 N.J. Super. 63, 65 (App. Div. 1978) (holding that absence from work due to home living situation is disqualified from receiving benefits). On the other hand, where the unemployment is the direct result of the employer's conduct rather than the claimant's own choice or personal decision, then, "as a matter of law, the unemployment must be seen to be attributable to the work." Gerber v. Bd. of Review, 313 N.J. Super. 37, 39 (App. Div. 1998).
The Appeals Tribunal and the Board concluded that the hostile and degrading manner in which Rothkopf treated Auerbach constituted good cause attributable to the work. We have affirmed similar determinations by the Board in the past. Doering v. Bd. of Review, 203 N.J. Super. 241, 246-47 (App. Div. 1985); Associated Util. Servs., supra, 131 N.J. Super. at 589. "If the factual findings of an administrative agency are supported by sufficient credible evidence, courts are obliged to accept them." Self, supra, 91 N.J. at 459; see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997) (describing "limited" standard of review of administrative agency decisions); Close, supra, 44 N.J. at 598-99.
Here, Auerbach testified on June 29, 2006,*fn1 that she attempted to have a discussion with Rothkopf on August 10, 2005, regarding the reduction in pay. Rothkopf, however, berated her for almost two hours, saying that Auerbach had too many personal issues, she did not focus on her job, the job was not her first priority, she was selfish and she was aggressive in getting her pay but not in getting business.*fn2 Auerbach testified that Rothkopf spoke to her "in an extremely condescending and demeaning manner" and spoke loudly enough that other employees could hear the conversation. By the time the meeting was over, Auerbach was very distraught and decided she could no longer work for Garden State. The Board reasonably found this evidence "sufficient to justify [Auerbach]'s voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Zielenski, supra, 85 N.J. Super. at 52 (quoting Goebelbecker; supra, 53 N.J. Super. at 59). There is no duty to remain employed at a lower rate of pay in a work environment that is hostile and degrading. This is clearly not a case where the record has only one vague reference to verbal abuse. Therefore, unemployment benefits were properly awarded. Associated Util. Servs., supra, 131 N.J. Super. at 587. We will not vacate an agency's decision because the record may support more than one result. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Based on our review of the record, we are satisfied that the findings and conclusions of the Board and the Tribunal could reasonably have been reached on sufficient credible evidence in the record.