CHARLOTTE P. EILERTSEN VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1130-17T1
CHARLOTTE P. EILERTSEN,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and ROBERT L. LEUNG,
Respondents.
____________________________
Argued January 30, 2019 – Decided May 13, 2019
Before Judges Accurso and Moynihan.
On appeal from the Board of Review, Department of
Labor, Docket No. 119,582.
Kevin J. Mahoney argued the cause for appellant
Charlotte Eilersten (Kreindler & Kreindler, LLP,
attorneys; Charlotte Eilertsen, on the pro se briefs).
Rimma Razhba, Deputy Attorney General, argued the
cause for respondent Board of Review (Gurbir S.
Grewal, Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of counsel;
Rimma Razhba, on the brief).
Respondent Robert L. Leung has not filed a brief.
PER CURIAM
Charlotte Eilertsen appeals from the Board of Review's decision affirming
the Appeal Tribunal's denial of unemployment benefits and its finding that
appellant voluntarily left her job without good cause attributable to her work.
See N.J.S.A. 43:21-5(a). In her self-authored merits brief, appellant argues:
POINT I
THIS COURT SHOULD REMAND THIS MATTER
FOR CONSIDERATION IN LIGHT OF THE NEW
MANDATES OF MEDICAL GOOD CAUSE FROM
ARDAN V. BOARD OF REVIEW AND ON
IMMINENT DISCHARGE IN COTTMAN V. BOARD
OF REVIEW
POINT II
THIS MATTER SHOULD BE REVERSED SINCE
THE AGENCY DID NOT OFFER THE CLAIMANT
A FAIR DETERMINATION OF HER CASE, AND
MAKE ADEQUATE FINDINGS OF FACT, AND
FAILED TO SATISFY CONSTITUTIONAL DUE
PROCESS PROTECTIONS APPROPRIATE TO THE
CASE AND THE REMEDIAL PROTECTIONS OF
THE STATUTE.
Our review of administrative agency decisions is normally 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.' "
A-1130-17T1
2
Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). "However, the
exercise of such deference is premised on our confidence that there has been a
careful consideration of the facts in issue and appropriate findings addressing
the critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33
(App. Div. 2001).
Neither the Tribunal nor the Board, however, made sufficient findings of
fact in this matter. N.J.A.C. 1:12-18.1(b)(2) requires appeal tribunals to set forth
in the second section of their decisions "Findings of Fact" which must include
"among all the pertinent facts the date the claim was filed." (emphasis added).
Here, the Appeal Tribunal, after reciting a brief procedural history, 1 set forth its
limited findings pertaining to appellant's complaint that her employer, a dentist,
installed a camera in her work area which was the "final straw" that prompted
her to leave employment as a front-end office coordinator in the dental office:
"The claimant was employed as a Front End Coordinator for the above-named
employer from 9/12/1988 until 3/9/2017 when she left work because the
employer had installed a camera in the area where the claimant worked." In its
decision, the Appeal Tribunal concluded:
1
That history should have been included in the first section of the decision.
N.J.A.C. 1:12-18.1(b)(1).
A-1130-17T1
3
The claimant's leaving of the work because the
employer installed a camera in her work area is not
considered a cause sufficient enough to justify one
leaving the ranks of the employed to join the ranks of
the unemployed. The claimant left work voluntarily
without good cause attributable to such work.
Those findings did not include all "pertinent facts." As appellant's counsel
explained in her summation to the Tribunal, the employer's installation of "the
camera, although it was the final hostile act, was not the sole reason why
[appellant] left [her employment] as her testimony has indicated." That
testimony included allegations that the dentist harassed and verbally abused her;
"[p]retty much every day there was some kind of verbal abuse being said to me."
Although appellant acknowledged her employer never used profanity, she
testified that the dentist:
was constantly degrading me, telling me I was making
too many mistakes. He didn't like anything I was doing
any longer. His practice was getting slow and he [felt]
that . . . I was sabotaging it.
....
was just constantly degrading my work ethic. He was
complaining about how fast I was working, the words
that I was using, how I was interrupting with patients;
A-1130-17T1
4
to the point that the patients told me that they felt it was
unfair how I was treated.[2]
....
would always shake his head and mumble at things that
I did. . . . He felt I wasn't working to my potential and
stated that. . . . He . . . couldn't stand watching me on
the computer. He kept asking me when I was going to
get it. He . . . asked me . . . did I think I could get a job.
....
stated that things had to be different. That he could no
longer take what was going on in the practice, he
needed a change.
....
said to me . . . that he felt that I couldn't have a very
good marriage if I could never shut up and listen, which
I never do to him.
2
The Appeal Tribunal allowed, over the employer's objection, written
statements (exhibits D through H) from people who claimed to be patients,
which were proffered to buttress appellant's harassment and abuse contentions.
The Tribunal noted that it was disputed whether some of the people were patients
with first-hand knowledge of their assertions and whether some people were
biased. The Tribunal said the documents would "be afforded the weight that the
(Inaudible) deems appropriate." Neither the Tribunal nor the Board further
addressed those documents.
A-1130-17T1
5
The Tribunal addressed only appellant's complaint about the employer's
installation of the camera. Appellant's testimony on that issue made clear that
she viewed the camera as part of a continuing practice by the dentist:
I just felt it was pointed at me, and I wanted to know
what the reason was for that, why he was not trusting
me after all these years of working for him, 3 and after
being told that he didn't like the way . . . I worked; I
was . . . no longer doing the job. . . . And, honestly, I
felt that if that camera had been left there he would've
seen the job that I was doing. But, by him doing that
. . . I couldn't do it. I've been a victim of his verbal
abuse and harassment, I feel for so long . . . his
degradation . . . his bullying type of behavior, it was
taking its toll on me mentally and physically.
Some of these facts were disputed. Of course, it was within the province
of the Tribunal and the Board to accept or reject these facts. We still hold to the
tenet that we may not vacate an agency's determination because of doubts as to
its wisdom or because the record may support more than one result. Brady, 152
N.J. at 210; De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App.
Div. 1985). But appellant's claims had to be addressed and the Board must make
those determinations. Judge Carchman's observations in Bailey are apt in this
case:
3
It was undisputed that appellant worked for her employer for twenty-eight and
one-half years.
A-1130-17T1
6
The Supreme Court addressed the issue of
administrative fact-finding in In re Arbitration between
New Jersey Bell Telephone Company v.
Communications Workers of America, 5 N.J. 354(1950), when it commented:
It has been said that it is a fundamental of
fair play that an administrative judgment
express a reasoned conclusion. A
conclusion requires evidence to support it
and findings of appropriate definiteness to
express it.
[Id. at 375 (citation omitted).]
See also Lister v. J.B. Eurell Co., 234 N.J. Super. 64,
73 (App. Div. 1989) (requiring a "reasoned explanation
based on specific findings of basic facts"). This was
neither a complex nor extended hearing, but
nevertheless required a careful analysis and the
requisite findings to insure a just result. Fact-finding is
just that. It is not a recitation of statutory citations but
a clear and concise demonstration that the litigants have
been heard and their arguments considered. Justice
requires no less.
[Bailey, 339 N.J. Super. at 33.]
In Bailey, 339 N.J. Super. at 33, we could not overlook the Tribunal's and the
Board's failure to "address, discuss, or make separate findings" on the issues.
Likewise, here, we are constrained to remand this case to the Board to address
those deficiencies.
A-1130-17T1
7
Although the Tribunal and Board did not address appellant's arguments
that she left work for medical good cause, relying on Ardan v. Board of Review,4
and because her discharge was imminent, relying on Cottman v. Board of
Review,5 we do not require the Board to consider those discrete issues because
we do not perceive sufficient support in the record for those claims. But the
failure of both the Appeal Tribunal and the Board to discuss the proofs appellant
presented that her employer harassed and verbally abused her over an extended
period, culminating in the installation of the camera in her workspace, cannot
be overlooked. Addressing only that last act in isolation denied appellant a fair
hearing on her claim. Accordingly, we remand the matter to the Board to
address appellant's claim. On remand, we direct the Board to consider the
totality of the dentist's comments it finds to be credible and supported in making
that determination.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
4
231 N.J. 589 (2018).
5
454 N.J. Super. 166 (App. Div. 2018).
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