AJA HARRISON v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2072-11T4

AJA HARRISON,

Appellant,

v.

BOARD OF REVIEW and

YOUTH CONSULTATION

SERVICE, INC.,

Respondents.

_________________________________

March 26, 2013

Submitted March 11, 2013 Decided

Before Judges Fasciale and Carroll.

On appeal from the Board of Review, Docket No. 253,861.

Aja Harrison, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).

Wilentz, Goldman & Spitzer, attorneys for respondent Youth Consultation Service, Inc. (Dominick Bratti, of counsel and on the brief; Annemarie T. Greenan, on the brief).

PER CURIAM

Aja Harrison appeals from a final agency decision by the Board of Review, Department of Labor and Work Force Development, determining that she is ineligible to receive unemployment benefits. The primary issue is whether Harrison left work voluntarily without good cause attributable to such work. We conclude that she did and affirm.

Youth Consultation Service, Inc. (YCS) is a non-profit social services agency which provides services to at risk and special needs children and their families. Harrison was employed by YCS as an intern from March 3, 2008, through May 19, 2008, when she was offered and accepted a salaried position as a case manager in YCS' New Brunswick Specialty Bed Unit. On June 12, 2008, upon becoming licensed, YCS promoted Harrison to the position of a clinician on June 12, 2008. Harrison remained employed by YCS until her resignation on August 20, 2009. In her resignation letter dated August 10, 2009, Harrison stated, "I am resigning from Youth Consultation Service's New Brunswick Specialty Bed Unit on 08.20.09. I apologize for not being able to provide two weeks notice. I have truly enjoyed my work with the clients of YCS and will miss them dearly."

In August 2009 Harrison filed a claim for unemployment benefits. In September 2009, the Deputy Claims Examiner mailed its determination, finding Harrison eligible for benefits, without disqualification, from August 23, 2009. In October 2009, YCS appealed the Deputy's determination to the Appeal Tribunal. The appeal was dismissed without prejudice because YCS was unable to participate in the initial hearing due to the unavailability of its witnesses. In December 2009, YCS requested a new hearing.

On March 19, 2010, the Appeal Tribunal conducted a telephonic hearing. The Appeals Examiner heard testimony from Harrison; Doira McGuston, YCS' vice-president of clinical services; and Mrs. Brown, YCS' Human Resources (HR) clerk. Harrison testified that she left her employment because she had been required to forge case records falsely stating that she was the clinician of record for certain patients. She also claimed that work hours had been changed so as to require employees to remain late when a child in their care went into crisis. This resulted in her experiencing child care issues. She further cited a constant change in supervisors, and the employer's failure to provide additional training which she had requested.

McGuston testified that to her knowledge Harrison resigned to accept other employment. She denied that Harrison had been asked to falsify case records. Rather, several audits had revealed discrepancies in Harrison's own case files, including signatures, progress notes, documents and medical records which were missing. Harrison was asked to address these deficiencies. She never mentioned this records issue as a basis for leaving. McGuston also denied that there had been any change in Harrison's work hours. Rather it was in Harrison's job description that if a child went into crisis there was an expectation that the clinician would remain until resolution. It was always YCS' policy that every clinician work one late night per week. However, some employees were not adhering to this policy, thereby resulting in a reminder notice being sent to all employees. HR was very accomodating to Harrison and worked with her to find alternate child care. As to the training issue, Harrison received the same level of training as the other employees. As a non-profit agency, budgetary constraints did not allow for additional training. Finally, Mrs. Brown testified at the hearing that Harrison never complained to HR about staying late in crisis situations or about any other job issues.

On March 22, 2010 the Appeal Tribunal reversed the decision of the deputy and stated that

[Harrison] was employed as a clinician for [YCS] from 3/3/08 through 8/20/09, when [Harrison] left the job. [Harrison] worked with traumatized minors. Therefore [,] [Harrison] had to work overtime as part of her job description. [Harrison] also had to sign documents regarding the care for minors. [Harrison] did not want to sign those documents. She then contacted the national agency for such work regarding the law for signing documents. [Harrison] then chose not to sign any more employer documents. As of 2/09 [,] [Harrison] was not required by the employer to sign any documents. [Harrison] had been allowed to work flexible hours. However [,] the employer was required by affiliate governing agencies to change the work hours. Therefore [,] [Harrison's] hours changed. However [,] she was paid salary for those hours. [Harrison] was fully trained for her job. However [,] [Harrison] wanted extra training. The employer had no budget for extra training. [Harrison] resigned for all the said reasons.

. . . .

In this case, [Harrison] maintains that she was forced to sign unethical documents, forced to work overtime and non-flex work hours and not competent due to lack of training. However [,] [Harrison] was not forced to sign any documents when she refused. Furthermore [,] [Harrison's] job description that she accepted included overtime. The change in hours was not isolated to [Harrison] but [applied to] all employees. Notwithstanding [Harrison] was paid salary for the hours worked. Although [Harrison] desired advanced training [,] she had all [the] necessary training for her job. Hence [,] she does not demonstrate good cause for resigning because of dissatisfaction with the working conditions. Therefore [,] [Harrison] left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 8/23/09 in accordance with N.J.S.A. 43:21-5(a).

Harrison appealed to the Board of Review. She contended that she was given late notice of the Appeal Tribunal hearing which did not afford her sufficient time to gather documentation and witnesses. The Board of Review remanded the matter to the Appeal Tribunal for a further hearing to allow Harrison the opportunity to present this testimony and evidence.

A new hearing was scheduled for October 19, 2010. Harrison did not appear. As a result, the Appeal Tribunal upheld its earlier decision. Harrison again appealed to the Board of Review. On April 19, 2011 the Board found that Harrison provided good cause for her failure to participate in the October 2010 hearing and again remanded the matter back to the Appeal Tribunal.

On June 7, 2011 the Appeal Tribunal conducted a second telephonic hearing presided over by the same Appeals Examiner. Harrison again testified, indicating that she left YCS voluntarily due to a lack of training and lack of consistency in administrators. She acknowledged that the additional training she requested did not occur due to budgetary constraints. The only other witness that Harrison called was a former supervisor, Laverne Austin, who also testified that Harrison had requested additional training, and that there was a lack of consistency with administrators at YCS' New Brunswick facility. Upon further questioning, Harrison reiterated her concerns about her hours of employment in crisis situations and being asked to complete patient charts for which she was not responsible. McGuston testified again, this time adding that Harrison never applied for a transfer to another YCS facility where crisis calls were less burdensome, and that HR assigned Harrison a laptop computer to assist her in completing her missing documentation.

On June 8, 2011 the Appeal Tribunal again found Harrison ineligible for benefits, stating:

In this case, [Harrison] maintains she wanted more training and consistency on the job. However, [YCS] trained [Harrison] with the best resources that [YCS] could afford. Furthermore [,] [YCS] was satisfied with [Harrison's] performance despite the administration changes and lack of training. Notwithstanding [,] [Harrison] never pursued the option to work at another [YCS] location. Hence [,] [Harrison] does not demonstrate good cause under the law for leaving the job. [Harrison] therefore left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 8/23/09 in accordance with N.J.S.A. 43:21-5(a).

Harrison again appealed to the Board of Review. On November 23, 2011, the Board affirmed the decision of the Appeal Tribunal disqualifying her from receiving benefits. This appeal followed.

On appeal, Harrison argues that she left YCS for good cause attributable to her employment and not for personal reasons. She contends that the decision of the Appeals Examiner was arbitrary and capricious because he failed to make any credibility findings and precluded her from subpoenaing witnesses and presenting proof of her medical condition. Harrison argues that the entire rehearing process was flawed because the same Appeals Examiner presided, thus depriving her of a fair and neutral determination. Finally, she maintains that the proofs were sufficient to demonstrate that she was compelled to leave YCS for good cause and for reasons related directly to her employment.

The burden of proof rests upon Harrison to establish her right to unemployment compensation, see Brady v. Bd. of Review, 152 N.J. 197, 218 (1997), and the scope of our review is limited, In re Stallworth, 208 N.J. 182, 194 (2011); In re Taylor, 158 N.J. 644, 656 (1999). "'In 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.'" Brady, supra, 152 N.J. at 210 (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). We also give due regard to the agency'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.

Harrison's argument that the Appeal Tribunal erred in denying her the opportunity to present witnesses and evidence lacks merit. When she contended that she was not given adequate notice of the first hearing to gather witnesses and evidence the Board remanded the matter to the Appeal Tribunal for such purpose. At the rehearing Harrison called only one other witness, Austin, a former YCS employee whose testimony was limited to the lack of consistency in administration. Although given this second opportunity, Harrison did not testify to any medical condition, seek to introduce any medical records, or call any further witnesses. In its November 23, 2011 final agency decision, the Board of Review specifically found that Harrison "was given a full and impartial hearing and a complete opportunity to offer any and all evidence."

The Appeal Tribunal's finding -- that Harrison did not demonstrate good cause for resigning because of dissatisfaction with the working conditions -- is supported by sufficient credible evidence. Harrison concedes that she resigned and was not terminated. YCS' representatives testified that the documents which Harrison was asked to sign or correct reflected deficiencies only in her work discovered during various audits. Harrison, along with all other clinicians, was given notice of the requirement to work overtime when necessary to service teenagers with trauma. Harrison was paid salary for the hours she worked. This testimony fully supported the Appeal Tribunal's factual determinations. As such, we will not second-guess the Appeal Tribunal's credibility determinations. See Logan, supra, 299 N.J. Super. at 348.

Moreover, Harrison conceded that she had received the basic training given to other clinicians and that the additional training which she requested from her employer, a non-profit agency, could not be provided due to budgetary constraints. Harrison further conceded that she never pursued the option to work at another YCS location.

The Appeal Tribunal correctly applied N.J.S.A. 43:21-5(a), which disentitles a claimant to benefits when he or she resigns voluntarily without good cause attributable to the work. See also N.J.A.C. 12:17-9.1. "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); Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967).

There is substantial credible evidence in the record to support the Board's decision to uphold the Appeal Tribunal's determination that Harrison left work voluntarily without good cause attributable to the work. We therefore conclude that the Board's decision that Harrison was ineligible to receive unemployment benefits was not arbitrary, capricious, or unreasonable.