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Shelton v. Board of Review


October 14, 2010


On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 209,886.

Per curiam.


Submitted September 21, 2010

Before Judges Baxter and Koblitz.

Sharon L. Shelton appeals from an April 20, 2009 decision of the Board of Review (Board) in which the Board found Shelton ineligible for unemployment compensation benefits because she resigned her job voluntarily without good cause attributable to her employment. Recognizing that our scope of review is narrow, we nonetheless conclude that based upon the uncontroverted evidence Shelton presented at the hearing before the Appeal Tribunal, which the Appeals Examiner and the Board accepted as fact, the Board erred when it concluded that Shelton's resignation from her employment disqualified her for unemployment compensation benefits. We reverse.


Shelton began her employment at Robert Wood Johnson University Hospital (Hospital) as an x-ray technician in the CAT Scan department in October 1997. For the next eleven years, Shelton performed her work to the satisfaction of her superiors, never receiving "any write-ups," verbal warnings or any other form of employee discipline.

On October 9, 2008, which was Shelton's last day of employment, she called a radiologist "an asshole." In her testimony before the Appeal Tribunal, Shelton explained the circumstances leading up to that outburst, asserting that the working conditions had begun to deteriorate due to budgetary constraints:

. . . [Y]ou don't understand the way they [were] working me there. You have no idea. I was short. I was training somebody. Everybody had left. I was training somebody who didn't know what she was doing. They didn't do anything [about] my schedule. I was packed every day. I got no lunch for weeks.

They didn't seem to care. . . . I asked them. They told me no. The hospital wasn't doing that well and budgets, budgets, budgets.

They had me on undue stress. . . .

When asked to explain the particular circumstances that existed on her final day of work, Shelton stated:

I had outpatients backed up because they took my nurse away. . . . I had no supervisor and I was training somebody new[.]

[M]y supervisor [had] left and the other person I was working with [had] left to go out on maternity leave[.]

Which led up to the display that happened that day. I mean all I asked the radiologist for was ten minutes.

The doctor reported Shelton's unprofessional conduct to Human Resources (HR). Later that day, the HR director called Shelton into her office and notified Shelton she was being "suspend[ed] indefinitely." Having heard in the past that an indefinite suspension inevitably resulted in termination, Shelton resigned immediately, believing her work record would look better with a resignation than with an involuntary termination. She never sought reinstatement, although she sent a written apology to the radiologist, who reportedly unsuccessfully tried to intervene with the head of the radiology department to have Shelton reinstated. In light of the department head's adamant refusal to reinstate her, Shelton testified that applying for reinstatement would have been futile.

When asked whether she would agree "that the economic conditions are poor for not only the healthcare industry but for all industries at this point in time," Shelton responded, "not to put patients at risk. No, I don't [agree]." She elaborated:

It was unsafe there. I was injecting people with IV Contrasts (inaudible) IVs. It was unsafe. . . . I didn't have enough support for the schedule I was doing everyday. It was unsafe. . . . I was responsible for every patient that I put on that table.

At the conclusion of the testimony, Shelton agreed that while some minor discipline would have been an appropriate response to her emotional outburst, "the hospital needs to take some responsibility for the way they were working me in that department[.]" She also asserted that "suspending me indefinitely was harsh. I think that was harsh giv[en] my track record and . . . the fact that the radiologist basically wanted to withdraw . . . everything in the end."

Because the hospital's witness had, without prior notice, become unavailable on the morning of the hearing, the Appeals Examiner proceeded with the hearing without the testimony of the hospital's witness, but permitted the hospital to cross-examine Shelton and make a closing argument. The hospital stressed that by immediately resigning upon being notified of the indefinite suspension, without affording the hospital any opportunity to investigate, Shelton had forfeited her right to receive unemployment compensation benefits. The hospital maintained that Shelton had merely been suspended and "wasn't going to necessarily lose her job," and therefore she resigned without knowing the ultimate result of her suspension.

On February 20, 2009, the Appeals Examiner issued a written opinion denying Shelton's claim, reasoning:

In matters involving voluntary leaving, the burden of proof is on the claimant. The claimant alleged that the suspension would lead to her discharge, and she did not want a discharge on her work record. The claimant, at the time she resigned the job, had not been told that the suspension would cause her discharge. Also, at the hearing, she referred to the sequence of events leading to the suspension, and concluded that she was overwhelmed with work responsibilities, as the cause of her outburst. The claimant, however, never gave the employer an opportunity to investigate the incident, and perhaps arrive at the same conclusion.

The claimant's leaving, at the time and under the circumstances that she did, was not a reasonable action on her part. The claimant has not substantiated that the suspension would have resulted in a discharge. Therefore, the claimant left continued [sic] work voluntarily, and good cause attributable to the work has not been shown.

On April 20, 2009, the Board affirmed the decision of the Appeal Tribunal.


We review Shelton's contentions in accordance with our standard of review. The Board's determination that Shelton was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

An appellate court "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of County of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S.Ct. 1043, 140 L.Ed. 2d 108 (1998). "'In 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)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, then we must uphold them. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

At the time Shelton's claim was denied,*fn1 a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant 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 and works for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . . [N.J.S.A. 43:21-5(a) (emphasis added).]

While the statute does not define "good cause," the statute has been construed to require more than mere dissatisfaction with working conditions:

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. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed. [Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (internal quotations and citations omitted).]

"Good cause" is defined by regulation as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

Where the testimony is in conflict, and the Appeals Examiner is forced to evaluate the witnesses' credibility and determine whose testimony is worthy of belief, we are obliged to "give due regard to the opportunity of the one who heard the witnesses to judge their credibility," and not substitute our own credibility determination for the one made by the Appeals Examiner. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). Here, because the hospital presented no contrary evidence, Shelton's description of her working conditions, and her assertion that employees who are indefinitely suspended ultimately wind up being terminated, stand unrefuted. We recognize that merely because the hospital did not present any contrary witnesses, the Appeals Examiner was not obliged to accept everything Shelton said at face value. The Appeals Examiner was certainly entitled, if she believed it was appropriate, to reject some or all of Shelton's testimony as not worthy of belief.

That, however, is not what happened here. The Appeals Examiner accepted Shelton's testimony in its entirety, but simply concluded that Shelton had acted precipitously when she hastily resigned as soon as she was notified of her indefinite suspension. Thus, although the Appeals Examiner did not say so expressly, we discern from her findings a conclusion that the working conditions, even if poor, and even if unsafe for patients, did not justify Shelton's decision to resign. The Board accepted the Appeal Tribunal's findings of fact and conclusions of law. We thus undertake our review with a record consisting of uncontroverted testimony that was accepted by the Board as true.

The Board urges us to reject Shelton's contention that the indefinite suspension was akin to a firing. In particular, the Board contends that Shelton was suspended indefinitely, and was never advised by her employer that she would be fired. Instead, according to the Board, "Shelton simply assumed that an indefinite suspension would eventually result in her discharge. Instead of allowing the employer to complete its investigation of the incident, Shelton resigned of her own volition" (emphasis added). According to the Board, "[t]his does not amount to a 'constructive firing,'" and therefore Shelton did not, as she claims, leave her employment involuntarily. The Board also maintains that the understaffing and repeated denial of breaks and lunches were not "so severe" and did not "affect[] [Shelton's] health so as to rise to the level of being good cause to quit attributable to the work."

As we have noted, an employee's reasons for resigning must be more than "[m]ere dissatisfaction with working conditions," but must instead be either "abnormal" or "affect [the employee's] health." Domenico, supra, 192 N.J. Super. at 288. Here, the uncontroverted testimony established that the acute staffing shortages, which had existed for a substantial period of time and which were not anticipated to abate, placed Shelton under unreasonable and unfair stress, constituting "abnormal," ibid., conditions. In particular, she was denied breaks, made to work without lunch, and forced to work without sufficient professional support from nursing staff, which "put patients at risk" and made the CAT Scan area actually "unsafe" for patients who were being "inject[ed] with IV Contrasts."

These uncontroverted facts established "good cause" that was "related directly" to Shelton's employment. N.J.A.C. 12:17-9.1(b). Moreover, the uncontroverted proofs established that the "indefinite suspension" would inevitably lead to Shelton's termination, thereby constituting a constructive, and involuntary, termination.


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