TONIE HARRELL 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NOT FOR PUBLICATION WITHOUT THE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-0824-17T4
TONIE HARRELL,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF
LABOR, and DOW JONES
& COMPANY, INC.,
Respondents.
_____________________________
Argued March 27, 2019 – Decided April 11, 2019
Before Judges Nugent and Mawla.
On appeal from the Board of Review, Department of
Labor, Docket No. 124,221.
Kevin J. Mahoney argued the cause for appellant
(Kreindler & Kreindler, LLP, attorneys; Tonie Harrell,
on the pro se briefs).
Jana R. DiCosmo, 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; Jana
R. DiCosmo, on the brief).
Respondent Dow Jones & Company, Inc., has not filed
a brief.
PER CURIAM
Appellant Tonie Harrell appeals from an October 3, 2017 decision by the
Board of Review, Department of Labor (Board), disqualifying her for
unemployment benefits. We affirm.
We take the following facts from the record. Harrell worked as a
supervisor for respondent Dow Jones & Company, Inc. from May 1, 2011 , to
May 16, 2017, before resigning from her position.
By way of background, in July 2015, Harrell's supervisor was promoted
to manager. A female subordinate became the "team leader" on Harrell's team,
reporting to Harrell. Based upon rumor, Harrell believed her supervisor and the
team leader were engaged in a romantic relationship, against company rules.
Beginning in August 2015, Harrell claimed the team leader would break the
chain of command and report directly to Harrell's supervisor when she disagreed
with decisions made by Harrell. Harrell had no personal knowledge or evidence
to confirm the truth of the rumor. However, she reported the alleged relationship
to her employer.
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In October 2015, Harrell met with human resources to discuss the rumors
and her concern the team leader was undermining her supervisory authority. A
human resources representative informed her the supervisor and the team leader
denied the existence of a relationship. The following day, Harrell and her
supervisor had a conversation, and he advised her she was behind on work and
her team was unhappy with her leadership. She perceived the supervisor's
statements to be a "subtle threat."
In November 2015, the supervisor transferred the team leader out of
Harrell's team. Harrell testified the transfer was without her input and caused
her workload to increase by upwards of twenty hours per week. Harrell hired a
new team leader, who she claimed took several months to learn the work, given
its complexity.
One week later, Harrell's supervisor issued her a verbal warning for being
inattentive during a meeting. Harrell testified the warning was retaliation for
reporting the rumor of the alleged relationship and an example of a hostile work
environment. She addressed these claims in an email to human resources.
Human resources responded and met with Harrell to inform her an investigation
of the claims did not yield any findings of harassment, hostility, or retaliation.
A-0824-17T4
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As a result of her work conditions, Harrell testified she became "[h]ighly
stressed," and began to develop symptoms of chronic hives and angioedema
beginning in December 2015, which required medication and treatment by a
specialist. Harrell turned to human resources, which expunged the verbal
warning she received in 2015, from her record. She also asked human resources
to find her a different position in the company. She applied for five different
positions within the company without success.
In June 2016, Harrell's former team leader was promoted to supervisor
and managed her own team, which subsequently became backlogged with work.
As a result, Harrell's supervisor required each team, including Harrell's, to lend
a team leader for eight weeks to assist the backlogged team. Harrell claimed
losing her team leader required her to perform an additional two-to-four hours
of work per day during the eight-week period. Because the backlog continued,
the team leaders remained on loan for an additional seven weeks. Harrell
claimed the news of her team leader's extended stay caused her hives to become
aggravated.
In May 2017, Harrell was summoned to a meeting with her supervisor,
who issued her another verbal warning. Without learning the reason for the
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warning, Harrell announced her resignation, packed her belongings, and left the
company.
Harrell filed an application for unemployment benefits, which was denied.
She appealed to the Tribunal, which held a telephonic hearing. Harrell testified
she suffered stress from the increased workload and the verbal warnings she had
received, and was subject to a hostile work environment and retaliation from her
supervisor. She also claimed the stress aggravated the hives and angioedema
she developed in 2015.
The Tribunal also considered medical evidence from Harrell, namely, a
medical note dated January 2016. The note indicated "the most likely diagnosis
for [Harrell]'s hives and swelling is chronic idiopathic urticaria and
angioedema." The note also indicated the doctor was "not at all convinced . . .
these symptoms are due to either a drug or vaccine allergy." Notes of a previous
visit to the same doctor regarding the same symptoms noted: "Important triggers
include no known triggers." Harrell also adduced online references from the
Mayo Clinic and National Health Service websites, which she claimed
demonstrated a causal link between stress and the urticaria and angioedema.
The Tribunal affirmed the denial of benefits, and rejected Harrell's claims
of retaliation and a hostile work environment. The Tribunal found she failed to
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present any evidence the rumored relationship between the supervisor and the
team leader was true. It noted Harrell "admit[ted] that the workload was for a
few separate periods in time[,] . . . had definite end dates[,]" and "was not
permanent nor intended or implied to be a permanent change in work
conditions." Thus, the Tribunal concluded Harrell had not met her burden to
demonstrate the "workload was retaliation or was the basis for a warning."
Regardless, it noted Harrell admitted "there was a human resource representative
who did act on [her] behalf." The Tribunal also found "[Harrell]'s medical
evidence [did] not state . . . her impairments we[r]e caused by the job." The
Tribunal concluded Harrell left work voluntarily without good cause attributable
to the work and disqualified her for benefits pursuant to N.J.S.A. 43:21-5(a).
The Board affirmed the Tribunal's decision. This appeal followed.
I.
The scope of our review of an administrative agency's final determination
is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The
agency's decision may not be disturbed unless shown to be arbitrary, capricious,
or unreasonable or inconsistent with the applicable law. Ibid. "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)).
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Thus, "[i]n 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." Ibid.(alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74,
79 (App. Div. 1985)). We "must . . . give due regard to the opportunity of the
one who heard the witnesses to judge their credibility." Logan v. Bd. of Review,
299 N.J. Super. 346, 348 (App. Div. 1997) (citation omitted).
A.
Harrell contends she demonstrated good cause for voluntarily leaving her
employment because the stress in her workplace aggravated a medical condition.
She contends the Tribunal "did not cite to, discuss or appropriately consider
[N.J.A.C. 12:17-9.3(b)] in its decision." She claims the Tribunal "focuse[d] on
'cause' and not aggravation of the . . . health condition[.]" We disagree.
N.J.S.A. 43:21-5(a) disqualifies an applicant for unemployment 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 eight weeks in
employment, . . . and has earned in employment at least
ten times the individual's weekly benefit rate, as
determined in each case.
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"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. 12:17-9.3(b) states
[a]n individual who leaves a job due to a physical
and/or mental condition or state of health which does
not have a work-connected origin but is aggravated by
working conditions will not be disqualified for benefits
for voluntarily leaving work without good cause
"attributable to such work," provided there was no other
suitable work available which the individual could have
performed within the limits of the disability. When a
non-work connected physical and/or mental condition
makes it necessary for an individual to leave work due
to an inability to perform the job, the individual shall
be disqualified for benefits for voluntarily leaving
work.
When an applicant for benefits demonstrates "through uncontroverted
medical evidence[] that her disease has been and will be aggravated by the
[work] environment[,] . . . [t]his constitutes 'good cause.'" Israel v. Bally's Park
Place, Inc., 283 N.J. Super. 1, 5 (App. Div. 1995) (citation omitted). An
applicant must demonstrate "the environment at her job aggravated her illness."
Ibid.A-0824-17T4
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The medical evidence presented by Harrell did not meet her burden to
prove her work conditions aggravated her medical conditions. The medical
notes from the physician who diagnosed Harrell with urticaria and angioedema
do not suggest the workplace stresses caused or aggravated her conditions, let
alone recommend she avoid workplace stress as a remedy for her medical issues.
To the contrary, as we noted, one of the notes stated there were "no known
triggers" for her conditions. Furthermore, the online medical references Harrell
provided merely noted stress as one of the causes of the symptoms she displayed.
They did not prove work environment stress was the cause for Harrell's
aggravated symptoms. For these reasons, the Board's affirmance of the
Tribunal's conclusion that the "medical evidence does not state . . . [Harrell's]
impairments we[r]e caused by the job" was not arbitrary, capricious, or
unreasonable.
B.
Harrell claims the retaliation and hostile work environment she
experienced as a result of her complaint to human resources regarding the
rumored romantic relationship demonstrated good cause for voluntarily leaving
her employment. She asserts there was good cause to refuse the additional work
hours and the warnings she received were unjustified. She argues the Tribunal
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ignored evidence of the romantic relationship, which demonstrated the
additional workload and the warnings were a form of retaliation.
An employee who leaves work for good, but personal, reasons is not
deemed to have left work voluntarily with good cause. Brady, 152 N.J. at 213-
14. Thus, an employee who leaves work for personal reasons is subject to
disqualification under N.J.S.A. 43:21-5(a). Ibid.; see also Morgan v. Bd. of
Review, 77 N.J. Super. 209, 212-13 (App. Div. 1962). "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,
192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338,
345 (App. Div. 1961)). "The decision to leave employment must be compelled
by real, substantial and reasonable circumstances not imaginary, trifling and
whimsical ones." Ibid. (citing Krauss v. A. & M. Karagheusian, Inc., 13 N.J.
447, 464 (1953)). The reasons for leaving employment voluntarily for good
cause attributable to the work must be based on "objective facts." Brady, 152
N.J. at 215, 219-20. "In scrutinizing an employee's reason for leaving, the test
is one of ordinary common sense and prudence." Domenico, 192 N.J. Super. at288 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)).
A-0824-17T4
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Furthermore, an individual is disqualified for unemployment benefits if
they refuse to accept suitable new work offered by their employer. N.J.A.C.
12:17-11.5(a). "New work" is defined as
[a]n offer of work made by an individual's present
employer of substantially different duties, terms or
conditions of employment from those he or she agreed
to perform in his or her existing contract of hire.
Examples of factors which may be weighed when
considering whether there is a substantial change in the
terms or conditions of employment which constitute
"new work" include, but are not limited to, the
employer's change of hours or shift, job duties,
location, salary, benefits, work environment and health
and safety conditions.
[N.J.A.C. 12:17-11.5(a)(3).]
Good cause for refusal of suitable work "means any situation over which
the claimant did not have control or which was so compelling as to prevent the
claimant from accepting work. In order to establish good cause, the claimant
must have made a reasonable attempt to remove the restrictions pertaining to the
refusal." N.J.A.C. 12:17-11.4.
Here, the Tribunal noted there was no evidence in the record to
demonstrate the alleged romantic relationship. Moreover, an investigation
conducted by Harrell's employer yielded no causal link between her report of
the alleged romance and her supervisor's attempts to discipline her. The
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backlogged team required assistance from other teams in order to accomplish its
work. Thus, Harrell's supervisor did not single her out and burden her with
increased work hours, and the additional work load was temporary.
Finally, we have held a claimant must prove intentional harassment by a
supervisor and "mere[] over-sensitiv[ity] to criticism" does not constitute good
cause for leaving employment because, "whether warranted or not, [criticism]
may be expected in the normal course of employment." Associated Util. Servs.,
Inc. v. Bd. of Review, 131 N.J. Super. 584, 589 (App. Div. 1974). Here,
Harrell's first warning was vacated well before she decided to resign. The record
does not reveal the reasons for the second warning because Harrell resigned
before her employer could review the merits of the discipline. Therefore, the
record lacks evidence of the intentional harassment necessary to prove
retaliation and good cause.
The substantial credible evidence in the record supports the conclusion
Harrell left her employment voluntarily and without good cause. The Board's
decision was not arbitrary, capricious, or unreasonable.
Affirmed.
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