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Demmer v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2009

SHERRI D. DEMMER, APPELLANT,
v.
BOARD OF REVIEW AND W.S. SCHUCKER, JR. & COMPANY, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 160,073.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 5, 2009

Before Judges Rodríguez and LeWinn.

Claimant Sherri Demmer appeals from the November 6, 2008 final decision of the respondent Board of Review (Board), upholding the Appeal Tribunal's finding that she was disqualified for unemployment benefits as of July 17, 2007, on the grounds that she left work voluntarily without good cause attributable to the work. We affirm.

These are the salient facts. Demmer worked for respondent W.S. Schucker, Jr. & Co. from October 18, 2004 through July 20, 2007 as an Executive Secretary. On July 20, 2007, she had a verbal altercation with William Schucker, Jr. Later that day, Demmer submitted a letter of resignation stating that she was leaving due to a hostile work environment.

Two days later, Demmer filed for unemployment benefits. A Deputy Director determined that Demmer was disqualified for benefits as of July 15, 2007, pursuant to N.J.S.A. 43:21-5(a), because she left work voluntarily without good cause attributable to the work.

Demmer appealed this determination to the Appeal Tribunal. At a telephone hearing, Demmer and Schucker testified. The Appeal Tribunal disagreed with the determination of the Deputy and found that Demmer left her job with good cause attributable to the work. Schucker appealed. The Board remanded to the Appeal Tribunal for additional testimony. Demmer and Schucker testified at a telephonic hearing again. The Appeal Tribunal upheld the determination of the Deputy and found that Demmer was disqualified. In finding Demmer disqualified for benefits, the Appeal Tribunal noted that:

[i]n Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964), the court held that the burden of showing good cause pursuant to N.J.S.A. 43:21-5 is on the claimant and the test is whether there was cause sufficient to justify an employee's voluntarily leaving the ranks of the unemployed.

The Appeal Tribunal found:

The claimant's contention that she was told to leave the job by her doctor is rejected as he supplied a note allowing her to return to work.

The claimant's leaving of the work because she was dissatisfied with the working conditions is not considered a cause sufficient enough to justify one leaving the ranks of the employed to join the ranks of the unemployed in view of her span of employment. The claimant left work voluntarily without good cause attributable to such work. Therefore, she is disqualified for benefits as of 7/15/2007 in accordance with N.J.S.A. 43:21-5(a).

Demmer appealed to the Board. The Board dismissed Demmer's appeal as untimely. Demmer then appealed to us. While the appeal was pending, the Board moved for a remand. We temporarily remanded the matter to the Board. Demmer v. Bd. of Review, No. M-294-08 (App. Div. October 13, 2008). The Board set aside its previous order dismissing the appeal, reviewed the appeal, and issued a decision holding Demmer disqualified for benefits as of July 15, 2007, pursuant to N.J.S.A. 43:21-5(a). The Board adopted the findings of the Appeal Tribunal.

On appeal, Demmer contends that she left her job due to "hostile work environment." Demmer specifically alleged that she was subjected to daily outbursts of temper, to include personal verbal assaults with severe vulgarity, profanity, and screaming. Due to these working conditions, claimant was under a doctor's care for anxiety, stress, and depression.

We have carefully examined the findings of fact and opinion as developed by the Appeal Tribunal and accepted by the Board. We find that Demmer was disqualified for benefits as of July 15, 2007, pursuant to N.J.S.A. 43:21-5(a). This is based on our narrow scope of review when reviewing administrative agency action. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Courts will not reverse an agency decision unless it is "arbitrary, capricious or unreasonable." Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1988). We only decide whether the findings made could reasonably have been reached on "substantial" credible evidence present in the record. Zielenski, supra, 85 N.J. at 54. We must give due regard to the ability of the factfinder to judge credibility. See Clowes v. Terminex Intern., Inc., 109 N.J. 575, 585 (1988).

Affirmed.

20090915

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