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Powers v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2009

CHRISTINE E. POWERS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WEST'S RELOCATION SERVICES, RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Yannotti and Lyons.

Christine E. Powers ("Powers") appeals from a final determination of the Board of Review ("Board") finding that she was disqualified from unemployment benefits pursuant to N.J.S.A. 43:21-5(a) because she left her job voluntarily without good cause attributable to the work. We affirm.

This appeal arises from the following facts. On July 29, 2007, Powers filed a claim for unemployment compensation benefits. A deputy claims examiner found that Powers was disqualified from benefits from April 15, 2007, because she left her job voluntarily without good cause attributable to the work.

Powers filed an appeal to the Appeal Tribunal, and a hearing in the matter was held on September 26, 2007, before an appeals examiner. Powers appeared but a representative of her employer, West's Relocation Services ("WRS"), did not.

At the hearing, Powers testified that she had been employed by WRS since 1989. Her job duties included packing personal items for persons who were moving. Powers went on medical leave on April 16, 2007. Powers said that she was under "a lot of . . . stress" at the time and her doctor prescribed an anti-depressant. The doctor cleared Powers to return to work but Powers called her supervisor, Jeffrey West ("West"), and told him that she had "had enough" and could not work for WRS under those conditions.

Powers testified that the men with whom she worked with often made vulgar and derogatory remarks to her. She said that, initially, the remarks did not bother her but the remarks had "gotten worse and worse and worse." She insisted, however, that she was not making a claim of sexual harassment.

Powers recounted an incident that occurred in March 2007. She said that a fellow employee named Rueben repeatedly interrupted her while she was speaking with a customer. Powers twice told Rueben that she would be with him in a minute but he continued to interrupt. Powers told Rueben to "please shut up and let [her] finish." Rueben apparently became annoyed and left the job site in the company's truck. Powers stated that they could not finish the job because Rueben left with the materials required to complete the job, and she had to get a ride home from a temporary co-worker.

Powers additionally testified that, two days later, West called her and told her that she should not have spoken to Rueben in that manner because he was from Puerto Rico and "Puerto Rican women do not speak to the men like that[.]" Powers told West that Rueben had rudely interrupted her when she was trying to speak to a customer. West told Powers that she should apologize to Rueben. Powers stated that she made a halfhearted apology to "keep the peace[.]"

Powers also testified that other workers made derogatory remarks to her or about women. Powers stated that one worker made a remark of a sexual nature that she reported to West. In addition, Powers said that another supervisor would frequently call her at home and leave vulgar messages. Powers stated that she believed the supervisor was drunk when he made the calls.

Powers further testified that in April 2007, she was "miserable" and it was not "just work" although her job "had a lot to do with it[.]" Powers moved to North Carolina in June 2007. Powers said that she sold her house in New Jersey because her husband had died and she could not afford the taxes. Powers initially intended to purchase a smaller home here but decided that she "should just pack it up and move to North Carolina and be done with all [of] this." Powers believed that nothing was going to change on the job.

The Appeal Tribunal rendered a decision on September 27, 2007. The appeals examiner determined that Powers' testimony was credible. The examiner found that a hostile work environment existed in the workplace and Powers had endeavored to correct the situation. The examiner concluded that Powers did not leave her job voluntarily without good cause attributable to the work and she was not disqualified from benefits under N.J.S.A. 43:21-5(a). WRS appealed to the Board.

The Board rendered a decision on the appeal that was mailed on November 23, 2007. The Board found that WRS had shown good cause for its failure to appear at the hearing. The Board remanded the matter to the Appeal Tribunal for another hearing and decision on "all issues." The appeals examiner conducted the remand hearing on December 11, 2007.

West testified that Powers had been a "lead packer" for the company and her job was to pack household goods so that they could be moved by a larger moving company. She had a full-time position. West stated that Powers called him on April 16, 2007, and said that she would be out of work for a while on the advice of her doctor. Powers told West that she thought she needed two weeks off.

West called Powers after two weeks to ask when she would be coming back to work. She left a voice mail and said that she would not be coming back. West conceded that Powers had complained about vulgar language and derogatory comments directed at her by her co-workers. He acknowledged that Powers said that the language and comments bothered her.

West testified, however, that Powers told him that he should not say anything to the offending workers because she had to work with them. West stated that Powers had also complained because "one of the guys" would keep calling her at home but West told Powers that he did not have control over what happened outside of the workplace. West spoke to the person who made the calls, and he explained that he dialed Powers accidentally because he kept hitting the "speed dial" button on his phone.

West additionally testified that Powers had "quit" six times during the course of her employment with WRS, citing various personality conflicts with other employees. West said that he always allowed Powers to return to work and, at times, adjusted her work schedule to address her personal needs. West asserted that he believed the "main reason" Powers left her job at WRS was because she had sold her home and decided to moved out of New Jersey.

The appeals examiner rendered a written decision which was mailed to the parties on March 25, 2008. The examiner again found that Powers had voluntarily quit her job at WRS with good cause because she made "every possible attempt to adjust her grievance" and eliminate the conduct that was subjecting her to humiliation and down-grading her position. The examiner stated, "No employee is required to continue in employment in which she is subjected to public humiliation." The examiner concluded that Powers did not leave her job voluntarily without good cause attributable to the work and was not disqualified for benefits pursuant to N.J.S.A. 43:21-5(a).

WRS appealed to the Board. The Board rendered a final determination in the matter, which was mailed to the parties on June 20, 2008. The Board reversed the appeals examiner's decision stating that:

[t]he Appeal Tribunal found that the claimant left work with good cause as no employee is required to continue in employment in which she is subjected to public humiliation. We do not agree that the claimant left with good cause. The claimant has failed to show that the working conditions were so adverse as to constitute good cause for leaving. This is evidenced by the fact that she worked under these conditions for years. Hence, we hold that the claimant left her job voluntarily without good cause attributable to her work. Consequently, she is disqualified for benefits as of April 15, 2007 in accordance with N.J.S.A. 43:21-5(a).

Powers appeals from the Board's decision. Powers says that West knew of the "daily" humiliation and chose to do nothing to resolve the situation. She says that West falsely stated that she did not complain about the "vulgar, lewd [and] otherwise inappropriate language" used by her co-workers. Powers also argues that the Board erred by finding that she had worked under the conditions "for years." Powers asserts that thirteen other persons worked for WRS until the year before she left the job. She says that she was subjected to the vulgar and derogatory comments only after "everyone [else] left[.]"

The scope of our review in an appeal from a final determination of the Board is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). Furthermore, "'[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.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

New Jersey's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30, provides in pertinent part that an individual who leaves "work voluntarily without good cause attributable to such work" is disqualified from receiving unemployment benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work" until such time as the individual becomes re-employed, works four weeks, and earns "in employment at least six times the individual's weekly benefit rate[.]" N.J.S.A. 43:21-5(a). The statute does not define "good cause." However, that term has been construed to mean a "'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)).

In determining whether an employee had "good cause" to leave his or her employment, we apply a test of "'ordinary common sense and prudence.'" Ibid. (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "Good cause" exists if the employee's decision to leave his or her employment was "'compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). The claimant has the "'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

We are convinced that the record supports the Board's finding that appellant voluntarily left her job at WRS without good cause attributable to the work. Here, Powers testified that her co-workers made statements to her of a vulgar or derogatory nature. She complained to West about her co-workers' remarks. West failed to take effective efforts to address Powers' complaint but he did so in part because Powers asked that he not speak to her co-workers on the matter.

The Board found that Powers had not established that the conditions of her employment were so "adverse as to constitute good cause for leaving." The Board noted that Powers had "worked under these conditions for years." Moreover, the record shows that, however adverse the conditions may have been, they were not the sole cause that Powers left her job. She testified that she took medical leave in April 2007 because there was "a lot of . . . stress." She acknowledged that the stress was not due entirely to the conditions in the workplace. She also was moving out of state at the time.

We are satisfied that, based on all of the evidence presented at the hearings in this matter, the Board reasonably determined that Powers left her job voluntarily for reasons that were not attributable to her work and therefore she was disqualified for benefits under N.J.S.A. 43:21-5(a).

Affirmed.

20090811

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