March 5, 2008
G. JEANINE GREIG, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND MANNA & BONELLO, PA, RESPONDENTS.
On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 114,491.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Wefing and Lyons.
At issue in this appeal is whether appellant G. Jeanine Greig (Greig) elected to leave work "voluntarily" and "without good cause attributable to such work," N.J.S.A. 43:21-5(a), thereby rendering her ineligible for unemployment benefits. Because we find the Board of Review's (Board) findings are supported by sufficient credible evidence in the record, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On June 29, 2005, Greig was hired in response to an advertisement for a legal secretary by John L. Bonello (Bonello) in his law office. Working in the office, in addition to Greig and Bonello, was Bonello's secretary, Carol Carrino (Carrino), and his receptionist, Emily Andrews (Andrews). On May 5, 2006, Greig overheard Bonello speaking to someone on the telephone using profane language and degrading women. Greig felt the words were meant for her. She did not inform Bonello that she heard the comments, but according to Greig, it made her decide to leave Bonello's employment. On May 5, 2006, Greig left Bonello a telephone message saying that she would not return to the office unless she received an apology. Bonello did not return her telephone call, and Greig never returned to Bonello's office.
Greig filed for benefits on May 7, 2006. A determination of the deputy claims examiner, mailed on May 26, 2006, held Greig disqualified for benefits from May 7, 2006, pursuant to N.J.S.A. 43:21-5(a), because Greig left work voluntarily without good cause attributable to such work. Greig filed an appeal from the determination of the deputy claims examiner. On June 20, 2006, a hearing was held in the matter before the appeal tribunal. On July 10, 2006, a decision was issued by the appeal tribunal which affirmed the determination of the deputy. Greig then appealed to the Board on July 12, 2006. On September 8, 2006, the Board remanded the matter to the appeal tribunal. The appeal tribunal took further testimony, and on October 11, 2006, issued a decision which affirmed the earlier determination of the deputy. Greig filed an appeal of the appeal tribunal's decision on October 18, 2006. On December 22, 2006, the Board issued its decision, affirming the decision of the appeal tribunal. This appeal ensued.
A careful and detailed review of the testimony in the matter indicates there are two distinctive views of the facts. Greig testified that she suffered a constructive discharge due to a hostile and discriminatory work environment. She stated that the workplace exacerbated her pre-existing blood pressure problems and she suffered severe headaches. In her testimony, she related certain incidents of harassment. In particular, she testified that her co-workers, Carrino and Andrews, frequently used profane language toward her. With respect to Carrino, Greig testified that Carrino, who had Bonello's prior authorization, improperly signed Greig's pay check because Greig insisted that Carrino not do so. Greig testified that this started a major argument. Greig also testified that the office receptionist, Andrews, repeatedly referred to her in an obscene fashion, specifically noting two occasions.
With respect to Bonello, Greig felt that she got along well with him but that he did not appropriately control the office personnel. Greig testified that she overheard Bonello's May 5, 2006, telephone conversation in which he used disparaging language regarding women and that she thought it was directed toward her, and that that conversation was the "last straw" that made her leave. In sum, Greig portrayed a hostile environment which negatively affected her health.
On the other hand, Bonello testified that Greig did competent work but that she was temperamental and he often felt that he was "walking on eggshells around her." Bonello testified that there were incidents among the staff, and that he had advised his employees not to use inappropriate language or get involved in disputes. Bonello also testified that there were periods of months during which his staff worked well together. Bonello stated he could not recall making inappropriate remarks on the telephone on May 5, 2006, but that they were not directed toward Greig, and that if she had brought the matter to his particular attention, he would have apologized.
Carrino testified that she had disagreements with Greig and that she may have used inappropriate language on one occasion; however, she felt that Greig provoked a number of arguments and was hostile. Andrews conceded that she did use profanity toward Greig during certain instances, but that they were provoked.
From the employer's perspective, the staff occasionally had some disputes. Greig was mercurial and may have provoked some of the discord. The office was not a hostile environment.
The appeal tribunal concluded that the May 5, 2006, incident was not directed toward humiliating or degrading Greig. The appeal tribunal also concluded that Greig was not blameless with regard to the instances which provoked profane language among the staff. The tribunal concluded that the conditions at times may have been unpleasant, and that although some statements made may have been rude or insensitive, this did not give Greig good cause to leave the job.
On appeal, Greig presents the following arguments for our consideration:
APPELLANTS SEPARATION FROM HER JOB AS A RESULT OF THE TOTALITY OF BEING SUBJECTED TO INTENTIONAL, FREQUENT, PERVASIVE AND SEVERE VULGAR ABUSE, HARASSMENT, BULLYING, HOSTILE WORK ENVIRONMENT BY 2 CO-WORKERS, AND RETALIATORY GENDER BIASED VULGAR SEXIST DISCRIMINATORY COMMENTS BY HER EMPLOYER FOR COMPLAINING WAS NOT WITHOUT GOOD CAUSE ATTRIBUTABLE TO THE WORK. THEREFORE, SHE SHOULD NOT HAVE BEEN DISQUALIFIED FOR UNEMPLOYMENT BENEFITS.
THE INTENTIONAL SEVERE AND FREQUENT WORKPLACE ABUSE, BULLYING, HOSTILE ENVIRONMENT, AND RETALIATORY SEXIST GENERAL BIASED HARASSMENT PERPETRATED AGAINST THE APPELLANT ARE ABNORMAL WORKING CONDITIONS THAT SEVERELY AFFECTED HER HEALTH AND WELFARE.
We begin by restating the legal applicable principles. In re Taylor, 158 N.J. 644 (1999), our Supreme Court stated with respect to the scope of appellate review in cases such as this that:
Once the agency has issued its final decision, "the Appellate Division's initial review of that decision is a limited one." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); see also Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) ("The judicial capacity to review administrative agency decisions is limited."); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981) (holding that "appellate review of an administrative agency's factual determinations is circumscribed"). The scope of review of an administrative decision "is the same as that [for] an appeal in any non-jury case, i.e., 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). . . .
Additionally, as we recently stated in State v. Locurto, 157 N.J. 463, 471 (1999), an appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance." We frequently have observed that findings of fact made by a trial judge "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and that standard is equally applicable to reviews of administrative decisions, see Close, supra, 44 N.J. at 599 (holding that scope of review of administrative decision "is the same as that [for] an appeal in any non-jury case").
Accordingly, if in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result. Clowes, supra, 109 N.J. at 588; Goodman, supra, 86 N.J. at 28-29. "[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980); see also Brady, supra, 152 N.J. at 210 ("Unless a [c]court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed.").
N.J.S.A. 43:21-5(a) bars a person from receiving unemployment compensation if they voluntarily left work without good cause attributable to the work. An employee who leaves work voluntarily has the burden of proving that he or she did so for good cause attributable to the work. Brady, supra, 152 N.J. at 218. Good cause has been construed to mean cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed. Id. at 214. Under this statute, a claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed. Ibid. In order to support a finding of good cause, the cause "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1993).
In this case, the Board has, after hearing the testimony of Greig, Bonello, Carrino and Andrews, concluded that the situation in Bonello's office was not such as to create an atmosphere which would support Greig's claim that she was constructively discharged. The factual conclusions of the Board were that there were periodic disputes among the office staff, but they were not constant, nor were they such as to constitute a hostile workplace. Moreover, the Board determined that Bonello's conversation was not directed at Greig and that Greig did not provide an opportunity for Bonello to apologize and to remain in his employ.
As we stated at the outset, the scope of our review is limited. After a careful and thorough review of the testimony, we agree that the Board's findings are supported by sufficient credible evidence in the record. Because the Board's factual findings are supported by sufficient credible evidence, we are required to accept them. Therefore, we affirm the determination that Greig was not constructively discharged, but terminated her employment voluntarily and without good cause.
© 1992-2008 VersusLaw Inc.