July 17, 2013
CRYSTAL L. TOTH, Appellant,
BOARD OF REVIEW, DEPARTMENT OF LABOR and PARACLETE CLEANING, Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
On appeal from the Board of Review, Department of Labor, Docket No. 306, 391.
Law Office of William J. Courtney, L.L.C., attorneys for appellant (William J. Courtney, of counsel; Brian W. DeRosa, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; George N. Cohen, Deputy Attorney General, on the briefs).
Respondent Paraclete Cleaning has not filed a brief.
Before Judges Sapp-Peterson and Nugent.
Appellant, Crystal L. Toth, appeals from the final agency decision of the Board of Review, Department of Labor, affirming an appeal tribunal's decision disqualifying her for unemployment benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to work. We affirm.
Appellant was employed full-time by Federal Insurance Company until she was terminated from that position in August, 2009. She was also employed part-time by respondent Paraclete Cleaning Service from March 12, 2007 to January 18, 2010, when she resigned. When her full-time employment was terminated by Federal Insurance Company, she filed for and received unemployment compensation benefits, even though she was working part-time for Paraclete.
On August 29, 2010, eight months after resigning from her part-time position with Paraclete, appellant filed a second claim for unemployment compensation benefits (the Paraclete claim). The Division of Unemployment Compensation denied the Paraclete claim on the ground that she had left Paraclete voluntarily without good cause attributable to her work. She appealed to the Appeal Tribunal.
According to her testimony before the Appeal Tribunal, appellant resigned because she felt she could no longer work for Paraclete's owner, Dennis Chiselko, who had been complaining to her daily about her job performance. Paraclete was a cleaning company owned by Chiselko, who employed four part-time workers to clean a tennis facility and an office building. Chiselko's complaints became an issue for appellant within the last year of her employment. Appellant worked Monday through Friday, sometimes Saturday and Sunday, and Chiselko had begun to telephone her daily to complain about her performance. She felt his complaints were unfair. For example, although Chiselko knew carpet stains in one building were "unremovable, " he nevertheless complained about her not removing them. He also complained about dust and cobwebs in certain areas behind computers, and about fingerprints on windows. According to appellant,
it was every single day that he was telling me something was wrong and when I told him things were completed, he would then tell me they were not completed when I know that I definitely did them and he would basically tell me that I was lying and that they were not done.
The day before appellant resigned, Chiselko telephoned and told her about things that had not been completed correctly. He began to yell at her, and though she tried to defend herself during a moment of silence, he told her to shut up, to stop lying to him, and that he did not respect her as a person or an employee. Appellant went to work that evening and the next day left a message on the answering service that she would not be returning to work.
Appellant acknowledged that she never told Chiselko she was considering leaving. Although Chiselko had yelled at her on numerous occasions, and had possibly used profanity once or twice, he never told her that he did not respect her until the phone call that precipitated her resignation. Had Chiselko not said during their final conversation that she should shut up and stop lying, and that he did not respect her, she would have stayed.
Chiselko denied most of appellant's accusations, including calling her a liar and saying that he did not respect her. He acknowledged that during his last telephone conversation with her he was "a little belligerent, " interrupted her, and used an inappropriate tone of voice. He explained that he was getting complaints from his customers' "management" about the work not getting done and performance not being up to their standards, so he was concerned about losing the contracts. Chiselko also testified that he had not used an inappropriate tone with plaintiff until the last call before she resigned. Had she explained her concerns, he would have been open to working them out.
Chiselko had problems with appellant's work before she resigned, and had once met with her at the tennis center to discuss her performance. During that meeting he had her sign a letter that apparently documented the deficiencies in her work. Chiselko had also made notes of verbal complaints he had made to plaintiff. He denied that he called her daily, testifying that he only called her when he personally inspected her work, which was two or three times each week.
The Appeal Tribunal determined appellant was disqualified for benefits. Appellant appealed to the Board of Review, which affirmed the appeal examiner's decision. Appellant filed this appeal on August 19, 2011, and then amended her Notice of Appeal on September 9, 2011.
On September 21, 2011, the Director of the Division of Unemployment Insurance mailed appellant a "Determination and Demand for Refund of Unemployment Benefits and Imposition of Penalty and Disqualification Because of Willful Misrepresentation." The determination involved benefits appellant had received between September 5, 2009, after her position with Federal Insurance Company was terminated, through January 23, 2010, five days after she resigned from Paraclete. The Director informed appellant that she had not been eligible for unemployment benefits during that time because she was employed by Paraclete. Appellant did not file an administrative appeal from that determination.
Appellant raises the following points for our consideration:
The Board of Review's decision that claimant is disqualified for benefits violates express or implied legislative policies.
a. The Board of Review failed to apply the applicable portions of the Administrative Code when making its determination that Claimant is disqualified from unemployment benefits, and, therefore, the decision of the Board of Review violates express legislative policies and must be reversed.
b. There are no factual questions here present, and the Court should exercise original jurisdictional power pursuant to R. 2:10-5.
The conclusion of the State Department of Labor and Workforce Development that claimant must refund unemployment benefits received between September 2009 and January 2010 for making willful misrepresentations regarding her employment status is clearly erroneous as that conclusion could not reasonably have been made on a showing of the relevant factors (not presented below).
Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "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). We will not disturb the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid.
The statute at issue, N.J.S.A. 43:21-5(a), disqualifies a person 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 re-employed and works eight weeks in employment . . . and has earned in employment at least ten times the individual's weekly benefit rate.
An employee has left work "voluntarily" "only if 'the decision whether to go or to stay lay at the time with the worker alone.'" Lord v. Bd. of Review, 425 N.J.Super. 187, 191 (App. Div. 2012) (quoting Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953)). "'[G]ood cause attributable to such work' means 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). A claimant seeking unemployment compensation benefits has the burden of establishing that he or she left work for good cause attributable to such work. N.J.A.C. 12:17-9.1(c).
The distinction between supervisory conduct that constitutes intentional harassment creating intolerable working conditions justifying an employee leaving her job, and supervisory conduct that constitutes criticism, warranted or not, which can be anticipated, is generally a factual issue. See Assoc. Util. Serv. v. Bd. of Review, 131 N.J.Super. 584, 589 (App. Div. 1974) (holding that a supervisor's frequent scolding and criticism of an employee, including criticism by the supervisor made in an ungentle manner during a telephone call to the employee at her home on a Sunday night, presented a factual issue as to whether such conduct constituted intentional harassment or expected workplace criticism). Here, the factual determination that Chiselko's conduct did not justify appellant resigning, made by the appeals examiner and affirmed by the Board, is amply supported by the evidence and is not arbitrary, capricious, or unreasonable. In view of our limited scope of review, we are obliged to accept that determination. Brady, supra, 152 N.J. at 210.
In Point II of her brief, plaintiff challenges the Director's refund determination, a determination from which she filed no appeal. Although appellant has included the Director's letter in the appendix to her appellate brief, the issue is not properly before us. The Director rendered the decision after appellant filed her notice of appeal. Moreover, the Director's decision concerning the refund is not a final determination of an administrative agency appealable as of right under Rule 2:2-3(a)(2). Appellant was required to file an administrative appeal to challenge the Director's determination, a requirement that was clearly explained in paragraph four of the Director's letter. By failing to avail herself of the administrative appeal process, appellant failed to exhaust her administrative remedies.