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Monica Mcdermott v. Board of Review


August 18, 2011


On appeal from a Final Decision of the Board of Review, Department of Labor, Agency No. 253,471.

Per curiam.


Submitted August 10, 2011

Before Judges J. N. Harris and Fasciale.

Appellant, Monica McDermott, appeals from an order of the Board of Review affirming two separate decisions of the Appeal Tribunal that found that McDermott (1) was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work, and (2) was liable for a refund of benefits in the amount of $12,818 pursuant to N.J.S.A. 43:21-16(d)(1). We affirm.

Spectrum for Living, Inc. (Spectrum) employed McDermott as a Human Resources Generalist whose responsibilities entailed handling employee benefits. On January 9, 2009, McDermott received a satisfactory job performance evaluation, but became upset with the comments and criticisms of her supervisor, Laura Mazzella, who prepared the evaluation. She requested a meeting with the president of Spectrum to discuss her issues with Mazzella. During the meeting, McDermott again became upset when Mazzella discussed McDermott's lack of organizational and communication skills and left. McDermott resigned the next day.

McDermott filed a claim for unemployment benefits on March 22, 2009. The Deputy Director found McDermott eligible for benefits. Spectrum appealed and the Appeal Tribunal reversed, finding that McDermott left work voluntarily without good cause because "an employer has a right to criticize an employee's performance," and, furthermore, because McDermott did not reasonably attempt to "resolve the perceived adverse working conditions." The Appeal Tribunal remanded the matter, and the Deputy Director found McDermott liable for a refund of benefits. The Appeal Tribunal affirmed.

The Board of Review affirmed both rulings by the Appeal Tribunal in a single opinion. This appeal followed. On appeal McDermott argues that she is eligible for unemployment benefits because her working conditions were insurmountable due to Mazzella's constant, daily, unprofessional, emotional and abusive behavior. We disagree.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] 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, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

An employee is disqualified for benefits:

For 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 four[*fn1 ] weeks in employment . . . . [N.J.S.A. 43:21-5(a).]

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to the work." Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964); Goebelbecker v. State, 53 N.J. Super. 53, 59 (App. Div. 1958)); see also Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457 (App. Div. 1967); Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962); N.J.A.C. 12:17-9.1(c). "While the statute does not define 'good cause,' our courts have construed the statute to mean '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) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" 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."

An employee who leaves work for personal reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self, supra, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "'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. "'The decision to leave employment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Shuster v. Bd. of Review, 396 N.J. Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)); see also In re N.J.A.C. 12:17-9.6 ex. rel. State Dep't of Labor, 395 N.J. Super. 394, 399-400 (App. Div. 2007). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175; Zielenski, supra, 85 N.J. Super. at 53-54).

In the context of harassment in the workplace, the issue is "whether [the] claimant ha[s] been subjected to intentional harassment by her supervisor, thereby creating such intolerable and abnormal working conditions that she was justified in quitting the job, or whether she was merely over-sensitive to criticism, whether warranted or not, which may be expected in the normal course of employment." Associated Utility Servs. v. Bd. of Review, 131 N.J. Super. 584, 589 (App. Div. 1974).

A person who receives benefits that he or she was not entitled to receive shall be liable to refund the benefits pursuant to N.J.S.A. 43:21-16(d)(1), which states in pertinent part:

When it is determined . . . that any person, whether (i) by reason of the nondisclosure or misrepresentation by him or by another of a material fact (whether or not such nondisclosure or misrepresentation was known or fraudulent), or (ii) for any other reason, has received any sum as benefits under this chapter (R.S. 43:21-1 et seq.) . . while he was disqualified from receiving benefits . . . shall be liable to repay those benefits in full.

We find that the decision of the Board of Review was reasonable, and we see no basis for disturbing it. We affirm substantially for the reasons expressed by the Board in its thoughtful and detailed written opinion dated April 9, 2010. We add the following brief comments.

The Board found correctly, by substantial, credible evidence, that McDermott was ineligible for unemployment benefits. The record reveals that McDermott became upset when her work was rightly criticized during a performance evaluation and resigned because she could not tolerate such moderately negative critiques. Nothing supports McDermott's contention that she was verbally abused or harassed. Mazzella's evaluation of McDermott and their follow-up conversations were nothing more than constructive criticisms designed to improve McDermott's efficiency and effectiveness as an employee, which are expected to occur in the normal course of employment. Thus, the Board did not act arbitrarily or capriciously, but rather found by substantial, credible evidence that McDermott voluntarily left her employment without good cause and is liable to refund the benefits she received because she was disqualified from receiving them.


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