September 2, 2008
KIMBERLEY*FN1 S. CALDWELL, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR, CHRISTOPHER J. MINAS, M.D. AND BELMAR MEDICAL OFFICES OF NEW JERSEY, INC., RESPONDENTS.
On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 144,554.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2008
Before Judges A. A. Rodríguez and Lihotz.
Claimant Kimberley Caldwell appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's (tribunal) determination she was disqualified from receiving unemployment compensation benefits because she left work "voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). Claimant's subsequent motion filed with this court to re-open the record was denied. In light of our standard of review, our review of the record satisfies us that the final decision of the Board was properly premised upon facts in the record and its determination was consonant with relevant statutory provisions.
Claimant was employed as a medical assistant by Belmar Medical Offices of New Jersey, Inc. (employer) from March 2005, until December 18, 2006. Christopher J. Minas, M.D., who was claimant's supervisor, owned and operated the company.
During the period of employment, claimant asserts Dr. Minas's behavior was verbally abusive and included screaming, yelling, and using profanity. On December 18, 2006, Dr. Minas became angry when claimant twice interrupted his telephone calls to announce the arrival of patients. She explained Dr. Minas began yelling at her in front of the patients. Claimant asked him to calm down or she would leave, and he told her, "fine leave."
Dr. Minas disputed these allegations. He stated, although claimant interrupted him, he professionally told her she needed to follow his direction and the patients could wait. He further stated: "if you don't want to follow instructions and do your job then [you're] free to quit." Claimant became argumentative and left, stating she quit. Dr. Minas testified he liked claimant and did not want her to stop working.
Claimant's application for unemployment benefits was granted and the employer appealed. An appeals examiner conducted a telephonic hearing on May 9, 2007. At claimant's request, the record was held open pending her provision of the name and address of an additional witness.
The tribunal reversed the deputy's decision. The tribunal credited the employer's testimony "due to the fact that continuing work was available" and concluded claimant was disqualified from receiving unemployment benefits as she had not shown working conditions were so severe or abnormal as to justify one "leaving the ranks of the employed to join the ranks of the unemployed." Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964). A remand was ordered to the deputy to determine claimant's potential liability to refund benefits paid. The Board affirmed this decision.
On appeal, claimant argues she was constructively discharged on December 18, 2006 due to harassment, "which created an unprofessional, hostile work environment." She also suggests she left due to an "unsafe work environment," an argument not raised below.
The scope of our review is very limited. We will not disturb an agency decision unless it is arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
In challenging the agency's determination, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a strong presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). Also, in our review, we accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing, Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n., 144 N.J. 16, 31 (1996), and we are obligated to give deference to credibility determinations made by the fact-finder. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
An employee who leaves a job voluntarily without good cause attributable to the work is statutorily disqualified from receiving unemployment benefits. N.J.S.A. 43:21-5(a). "Good cause" is defined in the regulations as "a reason related directly to the individual's employment, which [is] so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). Causes personal to an employee and not attributable to the work come within the disqualification of the statute. 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)); White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977).
"In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Domenico, supra, 192 N.J. Super. at 288 (citation and quotations omitted). We have stated, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid.
Giving due regard to the appeals examiner who had the opportunity to assess the credibility of claimant and the employer, we conclude there was sufficient, competent and credible evidence in the record supporting the finding that claimant left her job voluntarily, without good cause attributable to the work, disqualifying her receipt of unemployment benefits. Accordingly, we respect the Board's expertise and defer to its considered determination. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998).