January 8, 2010
CASSANDRA A. LEBOON, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT AND PRIORITY SOLUTIONS, INC., RESPONDENTS.
On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 204,400.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 15, 2009
Before Judges Cuff and Payne.
Cassandra LeBoon appeals from a final decision of the Board of Review affirming, as modified,*fn1 a decision of an Appeal Tribunal finding LeBoon disqualified from receipt of unemployment compensation pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to her work. On appeal, LeBoon argues that she did not intend to resign from her position, but merely to call attention to perceived discrimination in the provision of promotional opportunities and to alleged workplace harassment. We affirm.
A recorded hearing was conducted in this matter before an Appeal Tribunal, at which LeBoon, represented by counsel, testified on her own behalf and Human Resources Generalist Colleen Kelly testified on behalf of the employer and cross-examined LeBoon. Our summary of the facts of the matter is derived from the hearing record. We decline to consider the additional factual statements made by LeBoon in her appellate briefing that are not contained in the record on appeal. New Jersey Div. of Youth & Fam. Serv's v. M.M., 189 N.J. 261, 278 (2007); Cipala v. Lincoln Tech. Inst. 179 N.J. 45, 52 (2004); R. 2:5-4.
LeBoon was hired by Priority Solutions in December 1993 and remained with that company at its Swedesboro, New Jersey, location until August 29, 2008. At the time her employment ceased, LeBoon was serving as Manager of Tariffs and Tariff Application, a job that gave her access to the confidential rates charged to customers by her employer. There is no evidence in the record to suggest that LeBoon was anything other than a valued employee. Kelly testified that LeBoon regularly received higher bonuses that most other employees and "very good" raises. Additionally, LeBoon had received preferential treatment on hours, initially receiving a schedule of 3:00 a.m. to noon to accommodate her young family, and later receiving a schedule of 6:00 a.m. to 3:00 p.m., again as an accommodation.
Throughout her employment, LeBoon maintained a close personal friendship with Priority's president, Chris Carpenter, who referred to her as "princess" or "sunshine" in e-mails and, according to LeBoon, at one managerial meeting in 2008. During the years of her employment, LeBoon had completed college and, in May 2008, she had completed a master's degree. Kelly testified that LeBoon was the only company employee to receive reimbursement for her tuition payments. She testified additionally that LeBoon was not required to refund the payments upon leaving the company.
August 29, 2008, was the Friday before Labor Day weekend. On that day, LeBoon did not feel good, and she went home early, informing her supervisor, Steve Giampapa, by e-mail at 12:15 p.m. that she was leaving. LeBoon was not scheduled to return until Thursday of the following week, because Monday was a holiday, and she had elected to take the next two days as vacation.
On the evening of August 29, while checking her office e-mails, LeBoon opened an e-mail from Giampapa, that stated as follows:
I received your email at 12:15 and replied back to you at 12:17. This is very concerning to me that you did not at least allow me to reply before you left the building. If you were feeling that badly that you couldn't wait you could've at least stopped in my office, which as you know is located very close to the time clock, to let me know that you were leaving. As a manager you should've done that just in case I get any of your calls or in case I needed to follow up with you. I needed some information from you before you left but of course would've never kept you here if you were feeling that badly.
In light of your attendance record for this past year I will be instructing Human Resources to supply me with your record for this year and will determine at that time if we need to take your attendance record any further.
LeBoon responded to Giampapa that evening at 7:23 p.m., stating "Don't worry about going to HR." Additionally, at 7:33 p.m., LeBoon sent an e-mail to Chris Carpenter and the company's co-president and director, William Ciminello, with copies to various other individuals at Thermo Fisher, the company that had recently acquired Strategic Solutions. The subject line of the e-mail stated: "resignation from my 15 year career." The text stated:
After 15 long grueling years in management and making millions every year for this company, I have decided that I will not be treated like a homeless person anymore.
Please convey this message to Allen Pierce, San Jose, CA office, Jeremy Lynn Bailio, Ashville, NC office and Meredith Benvenuto from the corporate office.
Chris and Bill, good luck but as I said before, I will not be treated like a homeless person. Before experiencing being homeless, I didn't know what it really meant but now I do. I will let you know when my last day will be at Thermo Fisher.
According to LeBoon, on the following morning, which was the Saturday of Labor Day weekend, she received a telephone call from a person in the company's information technology department stating that LeBoon's computer and building access had been cut off. Kelly testified at the hearing that the action was taken to prevent any disclosure by LeBoon of confidential rate information, but that the action could have been rescinded.
However, when LeBoon did not return telephone calls by Human Resources Director Cristal Guinan-Wittman to her home, a determination was made by Carpenter and Ciminello to accept LeBoon's resignation. By e-mail sent at 7:34 a.m. on Tuesday, September 2, Giampapa informed the company that LeBoon was no longer an employee. Verbal confirmation of that fact was given to LeBoon by Guinan-Wittman on September 3, and written confirmation occurred on September 5, 2008.
At the hearing before the Appeal Tribunal, LeBoon claimed that her "resignation" was in actuality a distress cry, occasioned by a lack of promotion and the company's failure to respond to her three applications for positions at other locations, made on-line, directly to those locations at some point after she had received her master's degree in May 2008.
According to LeBoon, two men had been appointed to managerial positions in operations and purchasing at Swedesboro who had less education that she had. However, it was not clear whether their educations were comparable at the time the promotions were made or whether the focus of LeBoon's master's degree was relevant to those positions. Further, the record contains no evidence that LeBoon applied for those or any other positions at the Swedesboro facility.
LeBoon also testified that Carpenter had told her that she could not expect a promotion as a woman, and that she would remain in her present job. However, Kelly stated that Carpenter had never demonstrated bias against women, and that the company had an equal number or more female managers than males, and that many of the females had been promoted by Carpenter. Additionally, Kelly noted that the replacement for LeBoon's supervisor, Giampapa, was a woman.
LeBoon also complained about Carpenter's use of "sunshine" and "princess" when referring to her, but Kelly testified that the names merely constituted evidence of the close friendship between the two. According to Kelly, Carpenter maintained an open-door policy with LeBoon that he did not offer to other employees. Additionally, Kelly testified that LeBoon maintained a "great" relationship with the company's other manager, Ciminello, and that both did everything possible to make LeBoon's job easy. Kelly stated that she was unaware of any complaints by LeBoon regarding a lack of promotion or a hostile workplace. LeBoon's applications for company jobs at other locations had not passed through human resources and were unknown to Kelly.
On the issue of unscheduled days off, Kelly testified that LeBoon had taken nine such days in 2008. Although, pursuant to company policy, that number was unacceptable, the company had done nothing about it.
The Appeal Tribunal did not accept LeBoon's arguments and found her to be barred from unemployment compensation by N.J.S.A. 43:21-5(a). After setting forth its findings of fact, the Tribunal stated:
In this case, the claimant provided the employer with an e-mail stating she was resigning. It is clear from the contents of the e-mail that she intended to leave work. The claimant did not rescind that notice. The employer is considered to be within his rights to accept the claimant's notice that she intended to leave as she was an "at will" employee. Further, the claimant was the party who initiated the separation from work when the e-mail of leaving was sent. Lastly the claimant's leaving because she did not get the promotions she hoped for is without good cause attributed to the work. Therefore, the claimant is disqualified for benefits for a voluntary leaving as of 8/24/08, in accordance with N.J.S.A. 43:21-5(a).
The claimant's contention that she left work because the employer called her "sunshine or princess" is rejected. The employer and the claimant were friends and co-workers for 15 years, and such terms were not meant in a derogatory manner. Moreover, the claimant had accepted such terms for years without any complaint to the employer. Her complaints were filed after her separation from work.*fn2
On appeal the Appeal Tribunal's decision was affirmed, as modified, by the Board of Review.
Following a close review of the record in this matter, together with applicable precedent, we affirm. N.J.S.A. 43:21-5(a) disqualifies from benefits employees who leave work "voluntarily without good cause attributable to such work." LeBoon bears the burden of establishing that good cause existed in this case. Brady v. Bd. of Review, 152 N.J. 197, 213 (1997). "Good cause" has been defined as "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983). A personal cause is insufficient. Brady, supra, 152 N.J. at 213; Self v. Bd. of Review, 91 N.J. 453, 457 (1982). Moreover, "[m]ere 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." Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961).
In this case, the Appeal Tribunal found, on the basis of competent and sufficient evidence in the record, that LeBoon was not the subject of employment discrimination or a hostile work environment. The case can thus be distinguished from our decision in Doering v. Bd. of Review, 203 N.J. Super. 241, 246- 48 (App. Div. 1985), in which we found that the employee's evidence of sexual harassment, racially prejudicial and gender biased comments, as well as threats of physical violence, without "any question," supported her claim of good cause. See also Associated Utility Serv's, Inc. v. Bd. of Review, 131 N.J. Super. 584, 587-89 (App. Div. 1974) (affirming conclusion of appeals examiner that claimant had been harassed and mistreated by supervisor who scolded her during working hours and frequently called her at home at night to "give her hell."). In the present matter, the conclusion of the Appeal Tribunal that LeBoon's dissatisfaction with the conditions of her employment did not constitute good cause for quitting was well-founded on evidence contained in the record.
Moreover, we are satisfied that, in her August 29 7:33 p.m. e-mail to Carpenter and Ciminello (as reinforced by the e-mail sent to Giampapa moments earlier) LeBoon unequivocally expressed an intention to resign. The subject line of that 7:33 e-mail, "resignation from my 15 year career" together with LeBoon's statement that she would inform the recipients of her last day of employment cannot be otherwise construed. In the circumstances presented, the employer was justified in accepting the e-mail at face value, and had no obligation to hold LeBoon's at-will position open until it was finally able to make contact with her on September 3, 2008. Nicholas v. Bd. of Review, 171 N.J. Super. 36, 38 (App. Div. 1979).