Opinion
DOCKET NO. A-0113-13T4
04-29-2015
ERICA DELGADO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and RARITAN BAY MEDICAL CENTER, Respondents.
Erica Delgado, 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, Deputy Attorney General, on the brief). Respondent Raritan Bay Medical Center has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Board of Review, Department of Labor, Docket No. 305,216. Erica Delgado, 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, Deputy Attorney General, on the brief). Respondent Raritan Bay Medical Center has not filed a brief. PER CURIAM
Claimant Erica Delgado appeals from a final decision of the New Jersey Department of Labor Board of Review (Board), affirming the Appeal Tribunal's determination that found her disqualified from the receipt of unemployment compensation benefits, in accordance with N.J.S.A. 43:21-5(a). For the reasons that follow, we affirm.
Delgado worked for Raritan Bay Medical Center (Raritan) as a patient care assistant (PCA) from May 2005 through August 31, 2010. She applied for unemployment benefits effective August 29, 2010. By letter dated October 14, 2010, the Deputy Director of the Division of Unemployment and Disability Insurance found Delgado disqualified from employment benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. Delgado appealed the determination to the Appeal Tribunal.
On November 18, 2010, an appeals examiner conducted a telephonic hearing at which Delgado appeared, though Raritan did not. Delgado acknowledged that she "quit" her job because she "felt that because [she] was just an aide [she] wasn't given the attention that [she] felt that [she] deserved." Moreover, she explained that she faced discrimination because she was the only Hispanic worker on her floor while everyone else was Filipino, including most of her supervisors. She stated that her co-workers spoke their native language and formed a close-knit group both in and out of the workplace.
Delgado explained that she was one of two PCAs on the floor during her shift. Together they cared for patients in thirty-five rooms. Delgado stated that she was given a disproportionately higher number of patients to care for than the other PCA, who was Filipino. She was assigned eighteen patients, compared to eight or nine assigned to the other PCA. She complained about the unequal workload to her supervisors in February 2010, but claimed they did not address the complaints to her satisfaction. In April, Delgado complained about the failure of the other PCA to cover her patients while Delgado was on a lunch break. Again, Delgado did not feel that her supervisor addressed that complaint, which she construed as a show of disrespect towards her.
In May, Delgado requested a transfer to another floor and also applied for other positions within the hospital. Her applications were accepted by the Human Resources Department, however, she stated her supervisor and the Senior Director of Nursing, Debra Mahoney, denied her requests due to a hiring freeze that made a transfer impossible.
Delgado continued to work on the floor until August 24, when she had a disagreement over the care of a patient with a nurse who allegedly yelled at her in front of other co-workers. Delgado left a voice message for Mahoney that evening explaining the incident. According to Delgado, the next day Mahoney had received other versions of the incident from the "Filipino nurses" and believed their versions of the incident over her version. She stated that Mahoney criticized her patient care decision and again refused to transfer her to another floor. Mahoney gave her a verbal warning, and told her, "If you don't like what you're going through then just leave." Delgado considered this an ultimatum. On August 26, Delgado faxed a resignation letter to HR and Mahoney giving two-week's notice, however, she did not return to work anytime thereafter.
Delgado testified about health issues she developed as a result of her employment. On February 19, 2010, her doctor diagnosed her with depression and an anxiety disorder. She stayed out of work for one week. She claimed that in May, she was getting physically and mentally sick "because of the things that [she] was experiencing on [the] floor." This prompted her to apply for a transfer or for other positions. In August, Delgado claimed her depression was "stronger," and her doctor prescribed medication and recommended clinical counseling.
The hearing continued on December 16, 2010. Ed Tasso, Raritan's Employer Representative and Mahoney appeared as witnesses for Raritan. Delgado did not appear. Mahoney testified that she received a voicemail message from Delgado regarding the August 24 incident. According to Mahoney, after meeting with Delgado, the nurse, and others about the incident, Delgado became agitated, said she was too upset to work, and left the job. Mahoney received Delgado's resignation letter the following day. Mahoney also testified that she had no knowledge of Delgado's stress and anxiety. Aside from the February 2010 doctor note and request for time off from work for medical reasons, Mahoney denied receiving any other documentation from a physician indicating that Delgado had medical issues or could not work. Both she and Tasso explained that Delgado had not requested medical or family leave prior to resigning. Both testified that Delgado was not terminated but instead left her position voluntarily.
By opinion dated December 29, 2010, the appeals examiner affirmed the Deputy Director's denial of Delgado's unemployment benefits. She found:
The claimant's last day on the job was 08/24/10. The claimant gave a two[-]week written resignation via facsimile transmittal to the human resources director on the evening of 08/25/10 as she believed she was humiliated by the director of nursing. The claimant called out to the nursing supervisor on 08/28/10. However, the claimant was a no call no show after that. The employer had her on schedule for two weeks but considered her separated as of 08/31/10.
. . . .
The claimant believed the employer was being prejudiced against her as she was the only Hispanic on the floor. The claimant left using personal time as she was too upset to work after the employer requested her to stay.
The claimant did not request any leave of absence, intermittent leave, nor did she apply for Family Medical Leave Act prior to the separation. The claimant provided medical documentation for her time off from 02/22/10 through 03/01/10. The employer was not made aware of any other health issues prior to the separation. In addition, the claimant did not provide any other medical documentation for any health issues prior to her separation. The claimant was not under any threat of termination prior to the separation. Continuing work was available had the claimant not voluntarily quit.
. . . .
Substantial evidence at the hearing established the claimant voluntarily quit without good cause attributable to such work as the claimant left her job because she was dissatisfied with the working conditions. Evidence on the record indicates the claimant did not exhaust all opportunities to resolve the problems with the employer prior to leaving.
Delgado appealed to the Board, which remanded to the Appeal Tribunal to amplify the record with "additional testimony from [Delgado] and from the employer regarding the reason for [Delgado's] separation, for the Appeal Tribunal to enter the note from [Delgado's] doctor into the record, and to decide if the working conditions were abnormal or adversely affected [Delgado's] health[.]"
On remand, Delgado failed to participate in the September 21, 2011 hearing. Accordingly, by decision dated September 22, 2011, the Appeal Tribunal adopted its earlier factual findings and reaffirmed the Deputy Director's original denial of unemployment benefits. Delgado filed an appeal that the Board found untimely under the twenty-day period set forth in N.J.S.A. 43:21-6(c). The Board dismissed her appeal.
Delgado appealed to this court, which on November 15, 2012, remanded for a rehearing on Delgado's reason for separation and for amplification of the record with the doctor's note to determine whether working conditions contributed to Delgado's health problems. On January 10, 2013, the Board reopened the matter, vacated its prior decision, and remanded the case to the Appeal Tribunal.
After Delgado failed to appear at a February 6, 2013 hearing, the Appeal Tribunal reaffirmed its December 29, 2010 decision. The Board, however, found that Delgado had good cause for her failure to appear, and again remanded to the Appeal Tribunal, which scheduled another hearing on April 12, at which Delgado failed to appear. On June 5, the Board remanded the case for good cause and for lack of notice. Delgado, yet again, failed to appear at a June 26 hearing. Consequently, the Appeal Tribunal again reaffirmed its December 29, 2010 decision, which was also affirmed by the Board in a decision dated August 8, 2013. This appeal followed.
Delgado now argues that she is not disqualified for benefits because leaving her job to maintain her health and to leave a hostile environment constituted good cause "attributable to the work." Under the circumstances of this case, we disagree.
Our scope of review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion, and the determination of the administrative agency carries a presumption of reasonableness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will not disturb an agency's ruling unless it is arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
When we "'review[] 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)). Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 368 (2009) (internal quotation marks and citations omitted). For those reasons, "[i]f the factual findings of an administrative agency are supported by sufficient credible evidence, [we] are obliged to accept them." Self v. Bd. of Review, 91 N.J. 453, 459 (1982).
A person who voluntarily quits work for personal reasons, as opposed to causes attributable to the work, is ineligible for benefits. See id. at 456-57. Even if an employee leaves work for good reason, if that reason is personal, it is nonetheless also subject to disqualification. See Pagan v. Bd. of Review, 296 N.J. Super. 539, 542-43 (App. Div.), certif. denied, 150 N.J. 24 (1997).
A person is disqualified from receiving 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, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case.
[N. J.S.A. 43:21-5(a).]
In order to avoid disqualification, the claimant has the burden of establishing that she left work for good cause related to the work. Brady, supra, 152 N.J. at 218. "'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 v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Review Bd., 69 N.J. Super. 338, 345 (App. Div. 1961)). An employee's "decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. Moreover, "it is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Ibid. (citing Condo v. Review Bd., 158 N.J. Super. 172, 175 (App. Div. 1978)).
In light of our highly deferential standard of review, we find no reason to overturn the Board's decision. The Appeals Tribunal determined that Delgado participated in the initial telephone hearing on November 18, 2010, and the employer participated in the second hearing on December 16, 2010. Delgado failed to participate in the third, fourth, and fifth scheduled hearings on September 21, 2011, April 12, 2013, and June 26, 2013. Because no additional testimony was taken or supplemental evidence submitted, the Appeal Tribunal's findings of facts were readopted and the conclusion affirmed that Delgado was disqualified for benefits for leaving the job voluntarily.
We note that in this appeal, Delgado submits medical records from 2008 describing her treatment for a work-related back injury; a physician's letter from November 2010 stating that Delgado was seen three times for anxiety and work stress and her related medication prescriptions; her transfer request e-mails to HR; and a 2013 report from a chiropractor detailing her back injury. As noted, Delgado was provided multiple opportunities to supplement the record with additional medical documentation. However, due to her failure to appear at the scheduled hearings, none of these documents were submitted to the agency. Consequently, we do not consider these materials now. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (acknowledging that appellate courts generally will decline to consider questions or issues not properly presented to the trial court).
On the record developed following the first two hearings, the Appeals Tribunal determined that Delgado left work voluntarily because she felt disrespected by her co-workers and dissatisfied with the working conditions. There is no evidence that Delgado filed any formal complaints regarding her concerns of a hostile workplace. Nor did she request family or medical leave to preserve her job while seeking medical treatment. In that regard, Delgado failed to do all that she could do to improve her work environment in order to remain employed. See Domenico, supra, 192 N.J. Super. at 288.
Delgado's reasons for leaving the job were personal to her. Therefore, we conclude the Board's determination that Delgado left the job voluntarily without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable. We find no error in the Board's determination that Delgado was ineligible for unemployment benefits under N.J.S.A. 43:21-5(a).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION