June 19, 2008
JACQUELYN D. FAIRLEY, APPELLANT,
BOARD OF REVIEW, AND WHITE CASTLE SYSTEMS, INC., RESPONDENT.
On appeal from the Board of Review, Department of Labor, Docket No. 141,166.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2008
Before Judges R. B. Coleman and Lyons.
Claimant Jacquelyn D. Fairley appeals pro se from a May 2, 2007 Final Decision of the Board of Review (the Board), reversing an Appeal Tribunal decision that found Fairley eligible for unemployment benefits. After reviewing the record in light of applicable law and the arguments advanced on appeal, we affirm the Final Decision of the Board.
The issue before the Board, and now before this court, is whether Fairley voluntarily left work without good cause attributable to the work, thereby disqualifying her from receiving unemployment benefits. See N.J.S.A. 43:21-5(a). Fairley worked part-time for White Castle System Inc. (White Castle) from July 20, 2006 to December 31, 2006. When her employment with White Castle ceased, Fairley applied for unemployment benefits. On January 30, 2007, a Division of Unemployment Insurance Deputy found that Fairley was eligible for unemployment benefits, stating:
YOU VOLUNTARILY QUIT 12/31/06 PRIOR TO GIVING THE REQUIRED TWO (2) WEEK NOTIFICATION BECAUSE YOU DISAGREED WITH THE HOURS. THE HOURS [WERE] NOT THE SAME HOURS AS AGREED AT THE TIME OF HIRE. THEREFORE, YOU VOLUNTARILY QUIT WITH GOOD CAUSE. YOU ARE ELIGIBLE FOR BENEFITS.
On February 7, 2007, White Castle appealed the Deputy's decision, alleging that Fairley voluntarily quit without good cause and that she failed to show up for her scheduled shift.
The matter proceeded to a hearing via telephone before an Appeals Examiner on March 5, 2007. The following testimony was elicited at the hearing.
Fairley testified that "I was under the impression that I'd be working from 11:00 [p.m.] to 7:00 [a.m.] but it never was 11:00 to 7:00." She stated that her schedule was never consistent. Questioning by the Appeals Examiner elicited the following:
Q: Well did [your boss] tell you that [your schedule] was always going to be those hours or did she tell you that it could vary?
A: No she didn't say that it could vary she just said that I probably won't be there until 7:00 but[.]
Q: Did she tell you that you would always be starting at 11:00 p.m. at night?
A: No, no, no.
Q: Okay so she never guaranteed that you would be working those hours?
A:No it was never explained to me put [sic] it like that. Claimant's testimony regarding her reason for leaving was as follows:
Q:And what did you tell [your boss] [as] to why you were not coming back to work?
A:I told her I couldn't come back because the job was causing me problems with my leg I was not going to be able to do it anymore, I tried to stick in there as long as I could but my legs would not permit it. I was on my legs too much and before that a couple of times I had went to her when my schedule was made and I would tell her [it] was not good for me[;] I would not be able to work these hours because of my children. I had young children at home so the issue about the hours.
Q: So what did she say?
A: She would change it she would say well when you could come in  when you can come in, you know.
Concerning the condition of her leg, Fairley stated: "[My doctor] didn't tell me to leave but he ask me . . . I told him that I was quitting because he was going to put me out but I just said I couldn't do it no more because I couldn't work the hours." No doctor's report was tendered.
Fairley's testimony concluded as follows:
Q: Okay the last time that you spoke to [your boss] about your hours, did you tell her that you prefer a set schedule because of your family?
Q: Okay and what did she say about that?
A: She said, "well this is all I have[.] I'm giving you what I have, if you want to work[.] I'm trying to help you[.] I'm trying to work with you but this is what I have." And I accepted it because I needed a job.
Q: Okay so she couldn't guarantee you the same hours and the same days every week?
Q: Okay had she told you that when she hired you, would have taken the job?
A: No I wouldn't.
Stacey Smith, a White Castle general manager and Fairley's immediate supervisor, testified that Fairley was no longer employed with White Castle because "[Fairley] call me on New Year's Eve to tell me that she could no longer work because her legs was starting to hurt[.] [T]hat was the first time she ever mention her legs to me." Smith further stated that when Fairley informed her about her problems with a babysitter, she told Fairley that she would try to fit her in the night shift as much as possible but she could not do that all the time because she had filled her old position. Smith also elaborated on the history of Fairley's employment:
Q: Did she ever complain about her hours prior to separation?
A: Okay it goes back to way when she first got hired she got hired as a part time employee of working night shift[.]
[S]hortly after that she agreed to go into management which is a rotating shift. One week you work 7:00 in the morning until 3:00[,] one week you work 11:00 in the afternoon until 9:00 at night[,] and one week you work 9:00 at night until 7:00 in the morning. She went into the rotation for about three weeks[,] four weeks[.] [S]he came to me she said, "Stacy this is too much because she don't have the babysitter that she had before that she didn't want to go into management" so I said, "okay no problem."
A: So at that point it was less hours on night shift because I hired somebody to take her spot when she started rotating to be manager. So I told her I would fit her back in on night but sometimes she would have to work some split hours. Split hours means like 3:00 to 11:00 but three was too early for her so I would put her like 7:00 to 11:00, 8:00 to 2:00, 8:00 to 5:00.
Q: Okay prior to her going into rotating shift manager rotating shift that she was obviously not please [sic] with, what hours . . ., did she work set hours?
A: At White Castle we had different hours we don't have a set schedule at White Castle.
Q: So when you hire her, did you promise her that, you know her schedule would be fix [sic] from 11:00 p.m. till 7:00 a.m.?
A: When I hired her she got hired for 11:00 p.m. to 7:00 a.m.
A: But when she went into the management I hired someone else to take her spot.
After considering the testimony elicited at the telephone hearing, the Appeals Examiner issued her decision, which reads in pertinent part:
FINDINGS OF FACT
The claimant was hired to work the hours of 11:00 p.m. to 7:00 a.m., days varied, due to her child care arrangements. The claimant worked this [sic] hours through 10/21/06. Subsequently, the employer placed the claimant in a rotating schedule. After four weeks, the claimant advised the employer that she could not work the rotating schedule due to her child care arrangements. The employer no longer had available the hours that the claimant was hired to work. As the employer only had available a rotating schedule, the claimant left the employment.
In this case, the claimant left the work due to a change in her hours of work. As the hours of work were substantially changed by the employer, the claimant had good cause for leaving work voluntarily, and no disqualification arises under N.J.S.A. 43:21-5(a).
The employer has not presented any evidence to disturb the determination of the Deputy that the claimant was otherwise eligible for benefits . . . therefore, those findings will not be disturbed.
White Castle appealed the decision of the Appeal Tribunal to the Board. After considering the record, the Board reversed the Appeal Tribunal's decision, stating:
FINDINGS OF FACT
At time of hire, the claimant was advised that her hours of work would be 11 p.m. to 7 a.m. The claimant worked those hours until she was promoted to manager in October 2006. The claimant was aware that this new position involved a rotating schedule which required the claimant to be available days or evenings. The claimant worked this schedule for four weeks and on October 21, 2006, the claimant told the general manager that she could no longer work the hours as she did not have a babysitter. The claimant requested to return to her previous position. The general manager told the claimant that the position had been filled but would put her back on nights and give her whatever hours were available. The claimant worked these hours until 12/31/06 at which time she called her supervisor and resigned due to problems with her legs. The claimant had never mentioned a problem with her legs prior to her resignation.
The Appeal Tribunal concluded that the claimant had good cause for leaving her job as the employer substantially changed her hours. We do not agree. The claimant initiated the change when she accepted the promotion. Even after the claimant relinquished her position, the employer tried to accommodate the claimant with hours she could work.
The claimant has presented no evidence that the reasons for leaving were so compelling as to give her no choice but to leave. Accordingly, the claimant left work voluntarily without good cause attributable to the work and she is disqualified for benefits from December 31, 2006.
Fairley then filed a Notice of Appeal. On appeal, she presents the following argument for our consideration:
CLAIMANT LEAVING HER JOB WITH EMPLOYER DUE TO THE ROTATIONAL SHIFT CHANGE BECAUSE SHE ACCEPTED AN OFFER FOR MANAGEMENT POSITION AND LATER FOUND OUT SHE COULD NOT HANDLE THE FLEXIBLE HOURS, BECAUSE OF HER CHILDREN, WHEN EMPLOYER HIRED SOMEONE IN CLAIMANT POSITION, CLAIMANT HAD NO CHOICE BUT TO WORK HOURS GIVEN IN ORDER TO MAINTAIN HER JOB. SHE SHOULD NOT HAVE BEEN DISQUALIFIED FOR BENEFITS.
Our review of a final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). "Unless a Court finds that the agency's action was arbitrary, capricious or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). More recently, the Court has noted, "[A]lthough in reviewing the decision of an administrative agency, we must give deference to the agency's findings of facts, and some deference to its interpretation of statutes and regulations within its implementing and enforcing responsibility, we are in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Utley v. Bd. of Review, ___ N.J. ___ (2008) (slip op. at 22) (internal quotation marks and citations omitted).
Still, an appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance." Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).
Our independent review of the parties' testimony leads us to conclude that there is no material dispute as to any genuine issue of fact. There is, however, a disagreement as to the application of the law to the established facts. While we are not obliged to defer to the Board's determination, we agree with its decision, that Fairley voluntarily left work without good cause attributable to the work. That determination is supported by substantial credible evidence. Furthermore, we agree with the Board, that Fairley's reason for leaving does not constitute "good cause" as that term is understood under applicable law. "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.'" Brady, supra, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). Persons who leave work for good, but personal, causes are not eligible for benefits.
Utley, supra, (slip op. at 12); Self v. Bd. of Review, 91 N.J. 453, 457 (1982). This is a determination that calls for a fact- sensitive analysis. Utley, supra, (slip op. at 21). As the Court explained:
The Act . . . protects not only workers who are involuntarily unemployed -- those who are laid-off or terminated from their jobs by their employers -- but also those who voluntarily quit their jobs for good cause attributable to their work. See Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 168 (App. Div. 2005) ("The unemployment benefit law does not require that a plaintiff be either fired or constructively discharged in order to qualify for benefits." (citation omitted)).
N.J.S.A. 43:21-5(a) presently provides that an individual is disqualified for benefits "[f]or 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." Accordingly, benefits are available to a worker who voluntarily leaves his [or her] job only if it is for "good cause attributable to [the] work." Ibid. Therefore, if [the claimant] quit his [or her] job for "good cause attributable to [the] work," [the claimant] is eligible for benefits, but if [the claimant] left for personal reasons, however compelling, he [or she] is disqualified under the statute.
[Id. at 11-13.]
Claimants bear the burden of proof to establish their right to unemployment benefits and when a claimant leaves work voluntarily, he or she bears the burden to prove he or she did so with good cause attributable to the work. Brady, supra, 152 N.J. at 218. In the present case, Fairley could not find a babysitter for the various hours she knew she would be working when she agreed to take a management position. In addition, she complained that she had pain in her legs.
In Utley, supra, (slip op. at 18) the employee had worked the same shift for thirteen years, during which time he had relied upon public transportation, his only means of getting to work because his eyesight was so impaired that he was unable to drive a car. The Court noted that Utley did not have a transportation problem until his employer changed his shift to a time when buses were not available. The Court observed that was a change which "to some degree, altered the conditions of his employment." Id. at 18. Utley persevered by carpooling, first, with a supervisor and, then, with a co-worker, but when the employer mandated that he work overtime, that interfered with his ability to catch a ride home. Ultimately, when the employer refused to permit Utley to take his accrued vacation at a time that would coincide with a two-week leave of the co-worker with whom he was commuting, Utley resigned, "[choosing] to leave with dignity rather than be fired." Id. at 19.
In contrast to Utley, supra, the decision to change Fairley's work schedule was not made unilaterally by her employer. Instead, there is competent evidence that when Fairley was promoted she was fully aware that her hours would change. Moreover, unlike the employer in Utley, supra, White Castle did not impose inflexible hours that forced Fairley to choose between quitting with dignity or being fired. Fairley's supervisor demonstrated a willingness to try to accommodate Fairley's difficulties with the work schedule. Under such circumstances, the Board justifiably determined that Fairley left voluntarily without good cause attributable to work. With regard to the asserted pain in her legs, Fairley failed to provide any objective medical support. See, e.g., Wojcik v. Bd. of Review, 58 N.J. 341, 344 (1971) (concluding that the record did not support claimant where the only medical evidence was a doctor's equivocal statement that claimant's work may have aggravated his back disorder); Israel v. Bally's Park Place, 283 N.J. Super. 1, 5-6 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996), certif. denied, 143 N.J. 327 (1996) (noting that "[o]nly those who can show by adequate medical evidence that they are recovering alcoholics, and that their recovery is impaired by the pervading presence of alcohol in their work environment, are not disqualified from receiving benefits by virtue of N.J.S.A. 43:21-5(a)."). In short, Fairley failed to meet her burden of proof.
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