TERRI E. VERHULST v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5928-12T4

TERRI E. VERHULST,

Appellant,

v.

BOARD OF REVIEW and

FIRST REHAB GROUP, LLC,

Respondents.

____________________________________

March 6, 2015

Submitted February 2, 2015 - Decided

Before Judges Sabatino and Leone.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 397,656.

Terri E. Verhulst, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief).

First Rehab Group, LLC has not filed a brief.

PER CURIAM

Claimant Terri E. Verhulst appeals the Board of Review's final agency decision of June 20, 2013 upholding the denial of her application for unemployment benefits. The Board sustained the Appeal Tribunal's finding that claimant had left her position voluntarily without good cause attributable to the work, thereby disqualifying her from benefits pursuant to N.J.S.A. 43:21-5(a). We affirm.

The record establishes the following pertinent facts. Claimant worked as a physical therapy aide with her employer, First Rehab Group, for almost two years. A co-worker, D.I. (the "charge therapist") engaged in a series of sexually harassing forms of conduct with claimant. These harassing behaviors included snapping a photograph of claimant's buttocks while she was bending over a patient, making lewd remarks, and invading her personal space.

Claimant contends that these alleged acts created a hostile work environment. She initially raised her concerns with an employer representative. At that time, she requested that no remedial action be taken. Thereafter, as the harassment supposedly persisted, she asked the company's management to intervene.

Management performed an investigation, which revealed that no other coworkers had witnessed the alleged harassing behavior. In addition, two patients who, according to claimant, had likewise had been victimized, denied any wrongful behavior. Nevertheless, the employer did speak with the charge therapist about claimant's allegations and barred further picture-taking in the workplace.

Claimant indicated that she was willing to transfer to another location, but the employer responded that there were no such transfer opportunities available. Claimant was told by management that they would monitor the situation to ensure an appropriate work environment, and would come to the job site at least once a week to carry out that objective. That was not enough to satisfy her. Evidently frustrated with the response of her employer, claimant resigned on July 6, 2012. She maintains that her resignation was, in essence, a constructive discharge precipitated by the workplace events.

The examiner with the Appeal Tribunal who heard this matter concluded that, despite receiving assurances, claimant "chose not to cooperate with the employer[.]" The examiner also found that "rather than attempt to preserve her employment, [claimant] opted to join the ranks of the unemployed."

N.J.S.A. 43:21-5(a) disentitles a claimant to unemployment benefits when he or she resigns voluntarily without good cause attributable to the work. See also N.J.A.C. 12:17-9.1(a). "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." Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961). Good cause in this context "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). Causes personal to a claimant that are not shown to be attributable to the work itself do not satisfy the statutory requirement. White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977); see also Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967).

Our scope of review on appeal of the Board of Review's decision is a narrow one. In matters involving unemployment benefits, we accord particular deference to the expertise of the Board of Review, and its repeated construction and application of Title 43. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

When 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)); see also Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981). We also give due regard to the Board's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). 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.

Applying these standards here, we are satisfied that there is substantial and sufficient evidence to support the agency's findings of a voluntary quit in this case. The record adequately undergirds the agency's conclusion that claimant left her position before giving her employer a sufficient opportunity to address the workplace situation she had reported.

We affirm the Board's denial of claimant's application for benefits, without prejudice to whatever rights she may still have, if any, to pursue timely recourse under the applicable anti-discrimination laws.

Affirmed.