ANTHONY WILSON v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANTHONY WILSON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and ST. FRANCIS

MEDICAL CENTER,

Respondents.

________________________________________

November 20, 2014

Submitted September 3, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Board of Review, Department of Labor, Docket No. 321,211.

Anthony Wilson, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, of counsel and on the brief).

Respondent St. Francis Medical Center has not filed a brief.

PER CURIAM

Unemployment compensation claimant Anthony Wilson appeals from the Board of Review's September 27, 2011, order, affirming the Appeal Tribunal's March 23, 2011, decision denying him benefits on the ground that he voluntarily left work without good cause attributable to the work. On appeal by the employer, the Appeal Tribunal's decision reversed the deputy's initial determination awarding claimant benefits. We affirm in part, and reverse and remand in part.

I.

We discern the following facts from the record. Claimant was employed by St. Francis Medical Center (St. Francis) as a registered dietician in the bariatric surgery department from June 28, 2010 to September 22, 2010. Claimant did not file for benefits until December 2010. The deputy initially determined him eligible for benefits from December 26, 2010. St. Francis appealed.

Claimant testified before the Appeal Tribunal that he resigned because he was asked to falsify records. He stated, "I did not feel comfortable working there any longer. Previously I've been told that I had to falsify medical records and I was not comfortable doing that." He asserted that his supervisor asked him to falsify records three weeks before his resignation. Specifically, he claimed he was asked to check boxes on forms used to satisfy insurance criteria for approval of certain surgical procedures. He did not comply because he believed it was illegal. Claimant also alleged that his supervisor sent patients for extra testing to secure approvals for surgery.

However, claimant did not report the incident to anyone else in management. He stated he feared he would be terminated immediately. He also stated he did not report his concerns to protect the chief surgeon, whom he believed was uninvolved, but would lose his job if claimant's charges were investigated. Claimant acknowledged that the medical center had a system for reporting concerns, but he did not avail himself of it.

St. Francis vigorously contested claimant's allegations. The medical center also highlighted that defendant failed to report his allegations through channels provided by the medical center. He also failed to explicitly mention them in his resignation letter.

The medical center's director of human resources (HR) testified that claimant's employment ended on September 22, 2010. She read into the record his letter of resignation, which was addressed to her

This is Anthony Wilson, registered dietician at [Bariatric] Care Surgery. Due to the difficulties with a tremendous distrust that I feel with [my supervisor], I have decided to resign. This is my official resignation. I am giving you 30-day's notice as required by St. Francis Medical Center. It is with much regret that I resign. I feel that I've done an excellent job . . . and have thoroughly enjoyed working with [the chief surgeon]. If you have any questions, please feel free to contact me. Sincerely, Anthony Wilson, RDNF

The HR director stated that when claimant was hired, he received information about the processes available for the filing of whistleblower complaints, which could be filed anonymously. She asserted that claimant never explained the basis for his alleged distrust of his supervisor. She stated she was unaware of any insurance fraud in the bariatric surgery department and that the department was audited regularly.

Claimant's supervisor denied she asked claimant to falsify, alter or misrepresent records. She admitted that she asked claimant to check boxes on patient-related documents, but explained that dieticians were required to complete nutritional assessments for their patients, which were based in part on the patient's responses to questionnaires. She denied asking claimant to fill in omissions in the patient-prepared questionnaires. Rather, she asked him to transfer information from the questionnaires to his nutritional assessments where the information was missing.

The supervisor stated the claimant never expressed concerns to her about alleged insurance fraud. She attributed claimant's allegations to lack of familiarity with the clinical environment. In particular, she explained that a patient's approval for bariatric surgery often involved additional testing and clearances from various specialists.

An employment manager with the medical center's human resources department testified that claimant's resignation letter was emailed on September 21, 2010, and she met with claimant the next day. She testified that she informed claimant that his resignation would be effective immediately, notwithstanding that claimant's letter indicated his intention that the resignation take effect in thirty days. She testified that after claimant learned his employment would cease immediately, he sought to rescind his resignation.

In rebuttal, claimant explained that he had anticipated that he would be able to earn four more weeks of wages after he submitted his resignation letter. When he learned that he could not, he attempted to rescind his resignation so he could work four more weeks. Claimant also sought to introduce an email he sent to the chief surgeon on September 23, 2010, but the examiner excluded it as irrelevant, since it post-dated his resignation. However, claimant was permitted to testify that he made the chief surgeon aware that he suspected insurance fraud.

The Appeal Tribunal reversed the deputy's determination and found that claimant left work voluntarily, without good cause related to work, citing N.J.S.A. 43:21-5(a). The Appeal Tribunal found that claimant's allegations that he was asked to engage in fraud were unfounded, and that claimant failed to address his concerns with corporate compliance officers before resigning.

On appeal to the Board of Review, claimant argued that the Appeal Tribunal wrongly denied him the opportunity to subpoena six witnesses to support his claim that he was asked to alter the patient questionnaire of two patients. He argued that he timely submitted a request for subpoenas; the request was misplaced in the hearing examiner's office; and when he presented the issue to the hearing examiner off the record before the hearing, she told him that it was too late to adjourn the hearing to allow him to secure the presence of other witnesses. When the hearing began, on the record, claimant did not raise the issue again.

The Board of Review affirmed the Appeal Tribunal's decision, without expressly addressing claimant's argument regarding the denial of subpoenas. The Board stated: "Since the appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing."

On appeal, claimant renews his argument that he was denied the opportunity to subpoena witnesses and documents that would have supported his claim that he was asked to falsify records. He also challenges the hearing examiner's exclusion of his email to the chief surgeon, which he argues would have countered the claim that he fabricated his allegations of fraud long after his resignation.

II.

We begin by reviewing well-settled principles. Our scope of review in unemployment compensation cases is limited. We are bound to affirm the Board's determination if reasonably based on the proofs. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[T]he 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. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). We may intervene if the agency's action was arbitrary, capricious or unreasonable, or if it was "'clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Our state's unemployment compensation law, N.J.S.A. 43:21-1 to 24.30 (Act), is primarily designed to lessen the impact of unemployment that befalls workers "through no fault or act of [their] own." Id. at 212 (internal quotation marks and citation omitted). "The public policy behind the [Unemployment Compensation] Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989); see also N.J.S.A. 43:21-2 (declaring public interest in addressing the burden of "[i]nvoluntary unemployment").

Therefore, a person who voluntarily quits work for personal reasons, as opposed to causes attributable to work, is ineligible for benefits. "An individual shall be disqualified for 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 . . . ." N.J.S.A. 43:21-5(a). An employee bears the burden to show that he or she is entitled to unemployment benefits. Brady, supra, 152 N.J. at 218. If an employee has voluntarily left work, he or she also has the burden to show that he or she left not for personal reasons, but for "good cause attributable to work." Ibid.

Application of the "good cause" standard requires a fact-sensitive analysis. Utley v. Bd. of Review, 194 N.J.534, 550 (2008). "New Jersey courts have construed the phrase to mean cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Brady, supra, 152 N.J.at 214 (quotations and citations omitted). Employees are required to act reasonably to protect their own employment. "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

Applying these principles, we need not reach the issue of whether claimant presented sufficient proof that he had been asked to falsify records. Nor is it essential for us to determine whether he was wrongfully denied the opportunity to subpoena witnesses, to prove his allegations.1 We are satisfied that claimant did not act reasonably when he decided to resign over his concern about falsification of records, rather than avail himself of the internal avenues for reporting wrongdoing.

There was no evidence to support claimant's assertion that he would have been terminated had he reported his concerns. "Mere speculation about job stability is insufficient to establish good cause." Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997).

Nor does Casciano v. Bd. of Review, 300 N.J. Super. 570 (App. Div. 1997) compel a different result. In that case, we held that an employee of an answering service did not voluntarily quit without good cause attributable to work, where he resigned rather than overbill customers. We held that "public policy . . . requires that [a] petitioner's legitimate distress when required by his employer to act illegally or immorally be recognized as good cause for leaving." Id. at 577. However, in Casciano, the Board did not find that the claimant's overbilling allegations were unfounded. Id. at 576.

More importantly, for the purposes of our analysis, the claimant in Casciano brought his concerns to the attention of multiple managers, who defended the overbilling, rather than stop it. Unlike the claimant in Casciano, claimant made no effort to stop the alleged illegal activity prior to resigning. He also had made no showing that resort to internal reporting would have been futile. Nor did he demonstrate that the nature of the allegedly illegal conduct justified his immediate resignation. We note that claimant chose to continue to work for the medical center for three weeks after the alleged request to falsify records before submitting his resignation. In sum, it was incumbent upon claimant to take reasonable steps to address his concerns while preserving his employment.

Although we conclude claimant voluntarily quit without good cause attributable to work, he nonetheless is entitled to limited benefits because St. Francis terminated his employment in advance of the effective date of his resignation. It is undisputed that claimant submitted his resignation letter on September 21, 2010, to be effective thirty days later. However, St. Francis terminated claimant on September 22, 2010. Claimant then asked to rescind his resignation. St. Francis was entitled to refuse. See Nicholas v. Bd. of Review, 171 N.J. Super. 36, 38 (App. Div. 1979). However, St. Francis's decision to terminate claimant in advance of the effective date of claimant's resignation triggered a right to limited unemployment benefits.

When an individual gives the employer notice of resignation and the employer subsequently terminates the individual's employment prior to the effective date of the notice, the individual's separation shall be reviewed as a voluntarily leaving work issue as of the effective date of the resignation. However, the individual may receive benefits up to the date of resignation, if otherwise eligible.

[N.J.A.C. 12:17-9.7(a).]

We therefore reverse and remand for the calculation of benefits for the period between September 22, 2010, and October 21, 2010, when claimant's resignation was intended to take effect. We affirm the determination that claimant voluntarily quit work without good cause attributable to the work.

Affirmed in part, and reversed and remanded in part. We do not retain jurisdiction.

1 A claimant must establish the need for subpoenas. See N.J.A.C. 1:12-11.1 (stating that subpoenas to compel attendance of witnesses or production of records at hearing of the Appeal Tribunal "may be directed to be issued . . . by the appeal tribunal, . . . only upon the showing of the necessity therefor by the party applying for the issuance for such subpoena"). We do not address the State's argument that claimant waived his right to subpoenas by failing to mention the issue at the outset of the hearing.