Opinion
DOCKET NO. A-3060-12T2
03-16-2015
REBECCA M. BENEDICT, Appellant, v. BOARD OF REVIEW and MBO MANAGEMENT, LLC, Respondents.
Brandon L. Martin, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). Respondent MBO Management, LLC, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Board of Review, Department of Labor, Docket No. 386,458. Brandon L. Martin, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Verone, Deputy Attorney General, on the brief). Respondent MBO Management, LLC, has not filed a brief. PER CURIAM
Rebecca Benedict appeals from the final decision of the Board of Review (the Board) that affirmed the findings and decision of the Appeal Tribunal (the Tribunal) and denied her unemployment benefits pursuant to N.J.S.A. 43:21-5(a), because she left work voluntarily without good cause attributable to the work. We have considered the record in light of applicable legal standards and affirm.
Benedict was employed as an X-ray technician at Mercer Bucks Orthopedics (MBO) from November 1990 until March 30, 2012. She admittedly left after providing her employer with two weeks' notice. Benedict had been "written up" on February 9, 2012, by MBO's director of operations, Tolga Ebiri, for failing to perform certain job functions to which Benedict objected. Ebiri acknowledged in his testimony before the Tribunal that the problem started on February 2, when he responded to a call from a doctor who complained about Benedict's refusal to perform some duties assisting the doctor's patients.
At a subsequent meeting she requested on February 16, Benedict was told that she was required to perform these additional duties, causing Benedict to request a specific description of her position. The meeting resulted in Benedict being told that a new job description would be given to her, and she would have three weeks "to conform to the duties" or face termination.
MBO's job description for "Radiology Technologist" was given to Benedict and considered by the Tribunal. In her testimony, Benedict acknowledged that performing some of the functions of a medical assistant contained within that description did not require any special certification. She claimed, however, that some functions were not within the scope of her license, and she feared potential exposure to liability claims. In particular, she objected to writing prescriptions for patients.
In his testimony, however, Ebiri clarified that technologists would not be writing prescriptions for patients, but rather they would verify with the patient's doctor any prescription ordered by the doctor. Ebiri did not know any function in the new job description that would cause a problem for Benedict's licensure or malpractice insurance.
The Tribunal rejected Benedict's claim that performing the tasks associated with her new job description would jeopardize her license "because she was a[n] x-ray technician not a medical assistant." It concluded that Benedict "was never asked to do any duties that would jeopardize her professional license." The Tribunal further determined that Benedict "was only asked to do duties that w[ere] within the scope of what she had been trained to do an[d] did not require a license[,]" and she "was not in jeopardy of being terminated at the time she decided to leave the job." The Tribunal concluded Benedict was disqualified for benefits as of March 25, 2012, in accordance with N.J.S.A. 43:21-5(a) because she "left work voluntarily without good cause attributable to the work." The Board's final decision affirmed the Tribunal's decision, and this appeal followed.
"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n 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. (internal quotation marks omitted); Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.
N.J.S.A. 43:21-5(a) provides that "[a]n 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." Although undefined by the statute, accompanying regulations define "good cause" as "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). An employee who leaves work voluntarily has the burden of demonstrating that she did so with good cause that was attributable to her work. Morgan v. Bd. Of Review, 77 N.J. Super. 209, 213 (App. Div. 1962); see also N.J.A.C. 12:17-9.1(c).
Benedict argues that she demonstrated good cause because MBO insisted she perform certain tasks that exposed her to loss of license or potential liability. We have recognized that requiring an employee to conform to an employment practice that is contrary to the declared public policy of the State would support a finding that the employee's decision to voluntarily leave employment was "good cause attributable to the work." See, e.g., Sanchez v. Bd. or Review, 206 N.J. Super. 617, 621 (App. Div. 1986) (finding an employee's decision to quit because of the employer's alleged violation of the Wage and Hour Law, specifically N.J.S.A. 34:11-56a, would be good cause); see also Doering v. Bd. of Review, 203 N.J. Super. 241, 247-48 (App. Div. 1985) (employee's claims of sexual harassment supported a finding of that she had good cause attributable to the work for leaving).
However, in this case, there was no evidence produced before the Tribunal to support Benedict's assertions. Ebiri, on the other hand, rebutted Benedict's perceived problems with his own testimony. Ultimately, the Tribunal concluded that none of the duties contained in the job description placed Benedict in professional jeopardy. As we have noted in a similar context,
Given the Board of Review's authority to engage in a de novo review of the record, our assessment of its decision is limited by the substantial evidence rule. De novo review includes the authority to make different credibility assessments where the record is open to competing interpretations. Claimant has provided us with no persuasive argument that the Board of Review's findings, based largely on its credibility evaluations and expert assessments of the evidence presented, were beyond the pale of acceptability . . . i.e., lacking sufficient evidentiary support.
[Messick v. Bd. of Review, 420 N.J. Super. 321, 330 (App. Div. 2011) (emphasis added) (citations omitted).]
We also must reject Benedict's argument that after receiving the new job description, her termination was a fait accompli. The fact that an employee might be disciplined or even terminated for failing to perform the tasks required of her is not "good cause" for leaving employment. See e.g., Spatola v. Bd. of Review, 72 N.J. Super. 483, 485 (App. Div. 1962 ) (employee who left employment rather than undergo a thirty-day trial period had not demonstrated good cause within the meaning of N.J.S.A. 43:21-5).
Lastly, Benedict argues the Board should have considered that the principals of MBO also ran a "surgical center" that was fined by regulatory agencies. Even if the assertion was true, we fail to see its relevance to this appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION