Opinion
DOCKET NO. A-4194-12T2
01-06-2015
CHRISTIN FISHER, Appellant, v. BOARD OF REVIEW and ADVANCED CHIROPRACTIC ASSOCIATES, P.A., Respondents.
Christin Fisher, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Donna Arons, Deputy Attorney General, on the brief). Advanced Chiropractic Associates, P.A. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 384,867. Christin Fisher, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Donna Arons, Deputy Attorney General, on the brief). Advanced Chiropractic Associates, P.A. has not filed a brief. PER CURIAM
Claimant, Christin Fisher, appeals from the final decision of the Board of Review (Board), of the Division of Unemployment Insurance, finding that she was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). For the reasons that follow, we affirm.
In 2009, Fisher began working for Advanced Chiropractic Associates, PA (ACA), in Atco. She began working at the front desk, earning $14 per hour doing clerical work, including billing and medical pre-certifications. Fisher's supervisor at ACA was Dr. Joseph J. Clements. When the office manager left, Fisher took over that position and was given an increase in pay.
On December 11, 2011, Fisher began a maternity leave of absence. At that time, she was salaried and earning the equivalent of $26 per hour. Before leaving, ACA hired a "practice manager" to do billing, but did not fill Fisher's position as office manager.
Fisher was scheduled to return from maternity leave on February 6, 2012. Dr. Clements expected that Fisher would return to her former position on a full-time basis. Prior to her return, Fisher requested to work a part-time schedule because of personal issues with her older child. Dr. Clements agreed, but asked that she return to full-time status as soon as possible.
After Fisher returned to ACA on a part-time basis, Dr. Clements told her that, because she was not working full time, her pay would be reduced to $20 per hour and, as a part-time employee, she would not receive health benefits. Dr. Clements assured Fisher that when she returned to a full-time schedule, she would be restored to her former position as office manager.
On February 12, 2012, Fisher called in sick and the next day requested an additional six weeks of leave. On February 18, 2012, Fisher began a six-week period of leave for "family bonding." On March 30, 2012, one week before she was scheduled to return, Fisher sent Clements the following text message:
The Board referred to this leave as "Family Leave Insurance."
The text message was not provided to us but was read into the record at the hearing before the appeals examiner.
My bonding leave ends this week. I'm aware that my position as office manager is no longer available. My decision to work part-time temporary [sic] for my children's best interest was an unfair reason to cut my pay, . . . cut my health insurance more hours and also fire my husband.. . . I have filed for unemployment based on constructive discharge.Dr. Clements did not respond to this text.
Fisher's husband apparently worked at ACA as a chiropractor.
Fisher applied for unemployment benefits but her claim was denied by a deputy who found that she was disqualified as of April 1, 2012 because she left work voluntarily without good cause attributable to her work. The deputy also found that Fisher was ineligible for benefits from March 25, 2012 through March 31, 2012 as she was unavailable for work.
Fisher appealed to the appeal tribunal and a hearing was conducted by an appeals examiner. Only Fisher and her attorneys attended. The appeal tribunal reversed the deputy's determination of disqualification, finding that Fisher did not leave work voluntarily without good cause. The appeal tribunal also found that Fisher was ineligible for benefits from February 19, 2012 through March 31, 2012.
ACA appealed and the Board reversed, holding that ACA had shown good cause for failing to appear as it had not received proper notice of the hearing. The Board also determined that the appeal tribunal's findings of fact did not accurately reflect the record. The Board remanded the matter to the appeal tribunal.
A second hearing was conducted before the same appeals examiner. Dr. Clements testified that his hiring of a practice manager did not prevent Fisher from returning as the office manager, as she indicated in her text. Throughout her maternity leave, Dr. Clements assumed that Fisher was returning to her former position on a full-time basis.
Carol Harvey, who worked at the front desk for ACA, testified and confirmed Dr. Clements's testimony that she and others at ACA assumed that Fisher was returning to her former position on a full-time basis after her maternity leave ended.
Ms. Harvey is also referred to in the record as Sherri.
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The examiner found that Dr. Clements's testimony, that he wanted Fisher to return to her former full-time position, was not credible. The examiner appeared to base this finding on Dr. Clements's failure to respond to Fisher's text message, concluding, "his silence on the issue would lead any reasonable person to conclude that position was no longer available." The examiner found that Fisher did not leave work voluntarily without good cause and remanded the matter to the deputy to determine Fisher's eligibility for benefits.
ACA again appealed and the Board again reversed the decision of the appeal tribunal. The Board disagreed with the examiner's conclusion that Dr. Clements's failure to respond to Fisher's text message was an indication that her job was no longer available:
It is not the employer's responsibility to try and convince a worker, who gave a resignation, to continue his or her employment. Nor is the fact that the employer had another worker help him perform her job duties, while she was on maternity leave or working as a part-time employee, a
reason for the claimant to believe she had been replaced. She was never told she was or would be replaced.
By her own admission, the claimant requested to return to work on a part-time basis for an indeterminate period for personal reasons, to which the employer agreed and accommodated her. The claimant was never told her full-time job as an office manager was not available. She requested the part-time work and it was unreasonable for the claimant to expect to retain the benefits and responsibilities of a full-time office manager while working part time.
Although the claimant['s] resignation contends that one of her reasons for leaving was because of her husband's separation from the employer, which occurred prior to her resignation, there is no evidence that it was related to her own employment. And had it been so, it would still not provide good cause for the claimant to leave her job.
We are satisfied that the claimant's reasons for leaving the employment; dissatisfaction with the part-time work and the resulting changes in pay and lack of benefits, do not provide her with good cause for leaving. That, in fact, they were as a result of her own request for part-time work. Hence, the claimant voluntarily left her employment without good cause connected to the work and she is disqualified for benefits from March 25, 2012, in accordance with N.J.S.A. 43:21-5(a).
Fisher appeals, challenging the Board's conclusion that she left work voluntarily.
Our capacity to review decisions of the administrative agency charged with enforcing the laws and regulations governing the disbursement of unemployment benefits is limited. Shuster v. Bd. of Review, 396 N.J. Super. 240, 245-46 (App. Div. 2007). We must determine whether the agency acted arbitrarily, capriciously, or unreasonably. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In going about this task, we look to the following four factors:
(1) whether the agency's decision offends the State or Federal Constitution;
(2) whether the agency's action violates express or implied legislative policies;
(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant facts.
[Id. at 211 (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]
New Jersey's Unemployment Compensation Law "provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment." Utley v. Bd. of Review, 194 N.J. 534, 543 (2008). The protections extended by the Legislature under the Unemployment Compensation Law are not only to employees who are involuntarily terminated, but also to employees who "voluntarily quit their jobs for good cause attributable to their work." Id. at 543-44.
N.J.S.A. 43:21-5(a) disqualifies an individual from the receipt of unemployment compensation 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.'" Utley, supra, 194 N.J. at 544. Therefore, "benefits are available to a worker who voluntarily leaves his job only if it is for 'good cause attributable to [the] work.'" Ibid. If an employee leaves his or her job for personal reasons, then the employee is disqualified under the statute. Id. at 544-45.
We are satisfied that the record amply supports the Board's decision to deny Fisher's application for unemployment compensation benefits. Fisher's decision not to return to her full-time position at ACA, and instead work on a part-time basis, was purely personal and unrelated to good cause attributable to the work. Separation from employment due to childcare is "reviewed as a voluntarily leaving work issue." N.J.A.C. 12:17-9.1(e)(2).
Fisher concedes that her reduced work schedule, which she requested, rendered her ineligible for health insurance. There is no support in the record for her claim that, in hiring another employee to work while she was on maternity leave, ACA was attempting to replace her. Fisher's reasons for leaving ACA, including loss of health insurance and reduced pay, do not constitute good cause. She has failed to show that the Board's decision disqualifying her from benefits was arbitrary, capricious, or unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVISION