Opinion
DOCKET NO. A-2516-12T4
07-23-2014
JACQUELINE M. PLESSINGER, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and VANTAGE LEARNING USA, LLC, Respondents.
Karpf, Karpf & Cerutti, P.C., attorneys for appellant (Christine E. Burke, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Alan C. Stephens, Deputy Attorney General, on the statement in lieu of brief). Kenneth LaFiandra, General Counsel, attorney for respondent Vantage Learning USA, LLC.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from the Board of Review, Department of Labor, Docket No. 334,241.
Karpf, Karpf & Cerutti, P.C., attorneys for appellant (Christine E. Burke, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Alan C. Stephens, Deputy Attorney General, on the statement in lieu of brief).
Kenneth LaFiandra, General Counsel, attorney for respondent Vantage Learning USA, LLC. PER CURIAM
Claimant Jacqueline M. Plessinger, formerly an employee of Vantage Learning USA, LLC (Vantage), appeals a final decision of the Board of Review (Board) affirming the Appeal Tribunal's denial of unemployment compensation benefits. We affirm.
In this case the Appeal Tribunal and the Board considered Plessinger's claim twice. The Director of the Division of Unemployment Insurance initially determined that Plessinger left work for good cause attributable to the work, and the Appeal Tribunal rejected Vantage's challenge to that ruling. Vantage, however, sought review by the Board, and due to the poor quality of the recording of the hearing conducted by the Appeal Tribunal, the Board remanded "for a new hearing and decision on all issues."
After conducting a new hearing, the Appeal Tribunal issued a decision on October 10, 2012 setting forth its findings and reasons for denying Plessinger benefits on the ground that she voluntarily left her employment without good cause attributable to the work. N.J.S.A. 43:21-5(a). On Plessinger's appeal, the Board examined the Appeal Tribunal's record and decision and issued its final decision on January 17, 2013, stating its agreement with the Appeal Tribunal's determination.
On this appeal, Plessinger contends that she left work because Vantage revoked a previous grant of permission for her to work at home when flare ups of fibromyalgia precluded her from performing her duties in the workplace. Vantage opposes her appeal, and the Board urges us to affirm its decision. Because the Appeal Tribunal's determination the Board adopted is supported by sufficient credible evidence on the record as a whole, we affirm. R. 2:11-3(e)(1)(D).
Plessinger worked for Vantage from January 7, 2010 through April 1, 2011. Vantage paid Plessinger an annual salary of $30,000 for reading and grading essays on a full-time basis, from 9:00 a.m. to 5:30 p.m. in its Ewing office. Plessinger's supervisor was flexible about the hours and place where those in Plessinger's group worked. From the outset of Plessinger's employment, the supervisor allowed adjustments in her hours to accommodate doctor appointments. According to Plessinger, when she was hired her supervisor told her she could work at home when her health, a personal emergency or inclement weather required.
As early as February 2010, Plessinger's supervisor permitted her to work at home when her fibromyalgia flared up and her pain and fatigue were extreme. Plessinger estimated that, on average, she needed to work at home about once a month.
In July 2010, Plessinger gave Vantage a note from a doctor who was treating her for fibromyalgia. The doctor indicated that because Plessinger becomes "more symptomatic later in the day," she would need to work "earlier in the day." He further advised: "She may also require flexible hours and the ability to work from home as a result of an acute flare up of her symptoms and in order to keep doctor appointments." According to Plessinger, the Ewing office was cold and sitting at her desk for long periods exacerbated her pain. She further indicated that when she worked at home she was warmer and could take a warm bath or rest as needed.
Things changed in January 2011. Following a snowstorm that led several employees to work at home, Plessinger's supervisor advised the staff that Vantage would no longer allow its employees to work at home. According to Plessinger, her supervisor said Vantage made that change because other employees wanted the same opportunity and were complaining. According to Vantage's human resource manager (HRM), however, working at home was never an option for Vantage employees and Plessinger's supervisor never had authority to permit it. His testimony that Vantage had no written policy on working at home was undisputed, and Plessinger acknowledged that the employee handbook was silent on this point.
The HRM provided a reason for the policy. He explained that the workers in Plessinger's group had to access confidential client information. To keep that information secure, Vantage did not want the work done off-site.
On January 25, 2011, Plessinger's doctor wrote a note indicating that she had been under his care on January 25 but could return to work on January 26 with one restriction — she "needed to work from home." Subsequently, Plessinger, who wanted to work at home as needed because of extreme pain and fatigue, met with the HRM. The HRM confirmed Vantage's newly stated policy against working at home.
Despite the policy, the HRM offered Plessinger alternatives to accommodate her condition: assuming work for a yet-to-be determined minimum number of hours, to work at the same rate of pay and with the same benefits in an hourly wage, rather than a salaried, status; part-time employment for an hourly wage; and independent contractor status without benefits or insurance. The HRM indicated that Plessinger would be allowed to work at home as an independent contractor, but only if she took a different position — one that, unlike her current job, would not involve remote accessing of confidential client information.
Although the HRM and Plessinger spoke numerous times between January 26 and March 2, 2011 about the various employment arrangements the HRM suggested, they never finalized the details. On March 2, the HRM emailed Plessinger. Apparently addressing questions that had arisen in their discussions, the HRM explained that if Plessinger worked forty hours per week she would retain all of her benefits, and he further indicated that it might "be possible to potentially come to an agreement that would allow [Plessinger] to maintain fulltime status if [she] work[ed], for example at least [thirty-five] hours per week . . . ." He further explained that she would remain eligible for vacation time and her current rate of pay. On the topic of working at home, the HRM stressed that "[w]orking remotely was never part of any policy and was never supposed to be an option." He wrote, "No rules were unofficially changed. In fact, they were never in place to begin with. You were hired to work in the Ewing office fulltime as were all other . . . workers in your group." In closing, the HRM advised, "I am still attempting to explore any options . . . any other options which may . . . help you during this time."
The March 2 email was admitted into evidence at the hearing but not included in the record on appeal. The examiner for the Appeal Tribunal, however, read that email into the record.
Plessinger acknowledged that she made no further inquiry and had no further discussion with the HRM after receiving that email. Her only response was a letter she wrote on March 18, 2011, advising that she was "leaving [her] position with [Vantage] effective, Friday, April 1st, 2011."
Pursuant to N.J.S.A. 43:21-5(a), "[a]n individual shall be disqualified for benefits" if "the individual has left work voluntarily without good cause attributable to such work . . . ." A regulation, N.J.A.C. 12:17-9.3, provides additional guidance in determining whether a voluntary resignation related to health is for good cause attributable to work. The disqualification for voluntarily leaving work does not apply where the disability "has a work-connected origin" or has a different origin but "is aggravated by working conditions." N.J.A.C. 12:17-9.3(a), (b). There is, however, an exception to those general rules. The exception requires disqualification despite work-related disability, unless "there was no other suitable work available" or unless the individual was terminated for absence despite having "made a reasonable effort to preserve his or her employment." N.J.A.C. 12:17-9.3(a)-(c).
In concluding that Plessinger is disqualified for voluntarily leaving work, the Appeal Tribunal found and reasoned:
On or about 1/28/11, the claimant was informed by the manager that the "work from home policy" was changing. There was never a work from home policy and the manager did not have authority to authorize this.
The employer suggested the claimant work as an hourly employee whereby she could stay at home when a flare up occurred. She could also get overtime as an hourly worker. Also, the employer presented the claimant with the option of working as a contractual employee. The claimant's salary would remain the same, she would be paid on a 1099 and she could come into work or if not feeling well, stay home. The options, as presented by the employer were not solidified, but were presented as negotiation points. Essentially, the employer was willing to change the claimant's employment status in order to allow her to stay at home during flare ups.
The claimant rejected both options, even though nothing was solidified or presented in writing. In other words, an offer had not yet been made. Nonetheless, the claimant decided it was best for her to leave.
. . . .
In this case, the claimant was unaware that she could not work from home in the first place, so that accommodation could never have been technically fulfilled. The employer offered the claimant alternatives in an effort to keep her employed. Each alternative would have afforded the claimant an opportunity to stay at home and earn the same rate of pay.
At the outset, the employer was never able to accommodate the claimant's request to work from home. The claimant's reliance on the manager's prior approvals was detrimental in the long run, as working from home was technically not allowed. The employer, in effect, did not abuse the claimant's request for an accommodation and tried to make reasonable accommodations which would be within the parameters of the
company rules. The claimant did not wait until a firm offer was made, complete with details about each situation. Instead she chose to resign, as oppose[d] to exhaust[ing] all her opportunities to remain employed. The claimant has not shown good cause for resigning.
The claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 03/27/11 in accordance with N.J.S.A. 43:21-5(a).
Having considered the arguments Plessinger presents in light of the record and the Appeal Tribunal's decision, we have concluded that her claims of legal error have insufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(1)(E). The agency's determination "is supported by sufficient credible evidence on the record as a whole," R. 2:11-3(e)(1)(D), and we affirm substantially for the reasons stated by the Appeal Tribunal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION