MARGARET CARR VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )


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  •                       NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5260-15T2
    MARGARET CARR,
    Appellant,
    v.
    BOARD OF REVIEW,
    DEPARTMENT OF LABOR,
    AND ELITE CARE NJ, LLC
    a/k/a NEW HORIZONS
    PARTIAL CARE PROGRAM,
    Respondents.
    _______________________________________
    Submitted September 14, 2017 – Decided October 11, 2017
    Before     Judges   Haas,    Rothstadt    and    Gooden
    Brown.
    On appeal from the Board of Review, Department
    of Labor, Docket No. 077,606.
    Margaret Carr, appellant pro se.
    Christopher S. Porrino, Attorney General,
    attorney for respondent Board of Review
    (Melissa Dutton Schaffer, Assistant Attorney
    General, of counsel; Aimee Blenner, Deputy
    Attorney General, on the brief).
    Respondent Elite Care NJ, LLC has not filed a
    brief.
    PER CURIAM
    Appellant Margaret Carr appeals from the April 13, 2016 final
    decision of the Board of Review ("Board") affirming the Appeal
    Tribunal's     determination     that      she   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.    We affirm.
    We discern the following facts from the record.                Carr was
    employed by Elite Care NJ, LLC as a certified alcohol and drug
    counselor from August 2014 through November 14, 2015.             Initially
    Carr was supervised by a licensed clinical social worker as
    required by regulation.       See N.J.A.C. 13:34C-6.3(a)(3).         In 2015,
    her supervisor was replaced by an individual who did not hold the
    required certification.       Carr determined that she was not legally
    permitted to perform her job functions without a properly certified
    supervisor and that doing so would jeopardize her own state
    certification.
    Carr brought her concerns to Elite's attention, but it did
    not take any action toward replacing the supervisor. After raising
    her concerns with Elite, problems arose between Carr and her
    supervisor.    Carr ultimately resigned on November 14, 2015 because
    of   Elite's   failure   to   remedy    the   situation.     Prior    to   her
    resignation, Carr did not lodge any complaints with the State
    2                              A-5260-15T2
    Alcohol and Drug Counselor Committee, the entity responsible for
    issuing     certifications    to    alcohol    and   drug   counselors    and
    overseeing the profession.         See N.J.S.A. 45:2D-1 to -12; see also
    N.J.A.C. 13:34C-1.1 to -6.4.
    Carr applied for unemployment benefits in November 2015, and
    was notified on December 17, 2015, that she was ineligible for
    benefits because she left work voluntarily without good cause
    attributable to the work.      Carr appealed the determination to the
    Appeal Tribunal, which conducted a telephonic hearing and found
    that she was ineligible for benefits.            In its January 20, 2016
    written decision, the Appeal Tribunal found that Carr left her job
    voluntarily without good cause attributable to the work because
    she failed to demonstrate that there was any merit to her belief
    that her certification was ever in jeopardy or that the tension
    between Carr and the uncertified supervisor created an adverse
    condition that justified Carr's resignation.
    Carr appealed the Appeal Tribunal's determination and, in its
    April 13, 2016 decision, the Board affirmed.                In its written
    decision,    the   Board   noted   that   it   considered   a   post-hearing
    submission that Carr made and found that it further supported its
    conclusion that the Appeal Tribunal's decision was correct.               The
    Board stated:
    3                              A-5260-15T2
    On the basis of the record below, we agree
    with the decision reached. Additionally, on
    appeal to the Board of Review, the claimant
    presents a copy of a complaint she filed on
    March 18, 2016 with the Division of Consumer
    Affairs State Board of Social Work Examiners
    concerning this situation.      The complaint
    demonstrates that the claimant did not take
    reasonable steps to resolve her grievances
    prior to leaving work.     The fact that the
    claimant's license could have been revoked due
    to the lack of proper supervision remains a
    mere speculation; there has been no relevant
    evidence presented to establish it as a
    factual matter.
    This appeal followed.
    Before us, Carr contends the Board erred in finding she was
    disqualified for benefits pursuant to N.J.S.A. 43:21-5(a).              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. 4
                                 A-5260-15T2
    453, 459 (1982)).     Only if the Board's "action was arbitrary,
    capricious, or unreasonable" should it be disturbed.          
    Ibid.
    The   New   Jersey   Unemployment   Compensation   Law   states     an
    individual shall be 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    eight    weeks   in
    employment, which may include employment for
    the federal government, and has earned in
    employment at least ten times the individual's
    weekly benefit rate, as determined in each
    case.
    [N.J.S.A. 43:21-5(a).]
    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."
    Appellant admitted during the hearing that she left her job
    voluntarily.     The crux of her claim on appeal is that she left
    voluntarily with good cause–—specifically, that Elite's failure
    to insure that her supervisor be "a professional who possess a
    clinical license . . . constitut[ed] good cause attributable to
    the work."   We disagree.
    As a preliminary matter, Carr had the burden of proof in
    establishing that she left her job for good cause attributable to
    5                              A-5260-15T2
    her work.    Brady, supra, 
    152 N.J. at 218
    .        Carr was also obligated
    to establish that she did everything "necessary and reasonable in
    order to remain employed."         Domenico v. Bd. of Review, 
    192 N.J. Super. 284
    , 288 (App. Div. 1983).             That burden can be satisfied
    by evidence that she was required to engage in unethical or illegal
    practices.     See Casciano v. Bd. of Review, 
    300 N.J. Super. 570
    ,
    576-77 (App. Div. 1997) (finding the employee was justified in
    resigning to avoid participating in the employer's "immoral if not
    illegal conduct").
    In this case, the Appeal Tribunal found, and the Board agreed,
    that Carr's resignation was due to her incorrect interpretation
    of the applicable regulations and her failure to take any action
    to protect her employment prior to resigning.             These findings are
    supported by credible evidence in the record.             Specifically, Carr
    failed to seek any determination by the regulatory committee that
    her concerns about her employer's actions were legitimate or that
    her own certification was in jeopardy.          The applicable regulations
    make provision for specific actions to be taken to correct any
    valid   "inadequacies"     after    the   regulatory      committee     receives
    notification    of   an   issue    with   a   certified    drug   and   alcohol
    counselor's supervision.      See N.J.A.C. 13:34C-6.4(c).
    Under the circumstances, we agree that Carr did not utilize
    all of the resources available to her, such as reporting her
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    concerns to the proper regulating authority, in order to protect
    her position.    We discern no basis for disturbing the Board's
    determination, as Carr has not demonstrated that it was arbitrary,
    capricious, or unreasonable.
    Affirmed.
    7                          A-5260-15T2
    

Document Info

Docket Number: A-5260-15T2

Filed Date: 10/11/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024