JENNIFER MOORE v. BOARD OF REVIEW PHILLIPS COHEN ASSOCIATES (2011)

Jennifer Moore appeals from the November 30, 2009 final agency decision of the Board of Review (Board), which found that Moore was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to her employment.   We affirm.

I.

In November 1999, Moore was hired by Phillips & Cohen Associates to collect unpaid credit card balances by telephoning the cardholder.   According to Moore, for nearly ten years, she “never had any issues” with her employer or with her supervisor and had “received several awards and recognitions for how well [she] did at [her] job.”   Moore claimed that her work environment took a noticeable turn for the worse toward the middle of January 2009 when she was transferred to a different collections group, headed by Mecca Hyman.   According to Moore, Hyman questioned her every move, “hovering over [her] constantly, asking [her] why [she] wasn't making [Hyman] any money.”   Moore maintained that Hyman criticized her excessively and instructed other employees not to help Moore or answer Moore's telephone.   If Moore left her desk to use the restroom, Hyman “would ask [her] why ․ did [she] get up to use the restroom.”   Moore also asserted that Hyman falsely accused her of making too many personal phone calls during the “prime” collection hours of 8:00 a.m. to 10:00 a.m., and also asserted that Hyman “yell[ed]” at her in front of her co-workers “literally every day.”

According to Moore, two incidents during the week of February 13, 2009 “pushed [her] over the edge,” leading her to send a letter on February 23, 2009 to a company vice president, Ross Enders, asking to be transferred out of Hyman's group.   The first of those incidents occurred when Moore received an emergency phone call from her mother, over whom she had a power of attorney.   When Hyman complained to Moore that she should not be on the telephone during “prime time,” and Moore tried to explain her mother's “mental condition,” Hyman said she did not care and “screamed at [Moore] in front of everybody.”

The second incident involved Hyman “asking [Moore] to do unethical things on the telephone with the people that [the company] collected money from,” such as telling debtors that their relatives had the ability to pay the credit card account, and if the relatives did not do so, the credit card company would pursue the relative for the debt.   According to Moore, Hyman even offered to put a device known as an “umbrella” on Moore's telephone line so that her calls to debtors using that debt collection technique could not be recorded.   When Moore told Hyman she “didn't want any part of that” because “[t]hat's not how you collect money from people,” Hyman backed off and simply said, “it's there if you want it, and she [,Hyman,] would allow other people to do it” if they wished.

Shortly after Enders received Moore's letter asking for a transfer to a different group, he called her and said her complaints “were not even relevant,” and she could come back to work, but he refused to switch her out of Hyman's group.   After receiving Enders's response, Moore resigned.   At the time of her resignation, she had been working in Hyman's unit for approximately one month.

Moore thereafter filed a claim for unemployment compensation benefits.   On April 15, 2009, a deputy claims examiner notified Moore that she was disqualified for benefits because there was “no evidence that the conditions of [her] employment were so severe as to cause [her] to leave [her] work and become unemployed.”   Therefore, according to the deputy, Moore had not established that her resignation was for “good cause attributable to the work.”   After filing an appeal of the adverse decision, Moore participated in a telephonic hearing before the Appeal Tribunal on July 23, 2009.

At the hearing, Hyman described her working relationship with Moore as “fine” with no “flare ups” or “heated moments.”   Hyman explained that Moore had never approached her with concerns about how Hyman was treating her or about the nature of the work.   She denied screaming at Moore in front of Moore's co-workers on a daily basis, asserting “nothing happened.”   Hyman stated, “I don't know why she would feel she was being yelled at.   I speak with the same tone to everyone․  [I needed] to repeat things to her numerous times” because her job performance was not satisfactory.   When asked to elaborate, Hyman responded that Moore demonstrated “a lack of work effort.”   Hyman explained that when she spoke to Moore about her performance and asked Moore to “pick up her efforts” so as to meet the company's expectations, Moore did not respond well.   Hyman testified:

She didn't take it at all well․  [S]he did not bring me her monthly number and obviously, the reason, part of that was because she was not doing the necessary steps to get the job completed on a daily basis.   Meaning, her calls were low, she was, you know, taking several unauthorized breaks when she should have been making calls, and these are the things that I had always approached her on․  I ․ communicated with her about ․ better ways that she could do [her job] to try to meet this monthly quota and to try to get to her number ․ [of] monthly calls.

When the appeals examiner asked Hyman whether Moore's performance had been meeting company standards prior to Moore's transfer to Hyman's group, Hyman responded that Moore “had not been performing,” and Moore's substandard performance was “one of the reasons for her move” to Hyman's group.   Hyman reviewed Moore's disciplinary file and explained that Moore had received three disciplinary notices resulting from poor performance, with the most recent of the notices having been issued in May 2008.

When asked about the incident in which Moore's mother had called Moore on an emergency basis on February 17, 2009, Hyman explained that she had simply instructed Moore to terminate the phone call because the call was during “prime time” when Moore should have been “mak[ing] calls for work.”   Hyman also explained that employees are permitted to receive emergency personal phone calls, but if such an instance occurs, the employee is required to notify a supervisor of the situation and then step away from the work area so as not to disturb other employees.   According to Hyman, Moore had not complied with either of those two requirements.   Hyman also denied that Moore had ever explained to her the exact nature of the emergency, stating that had she been aware it was an emergency call to which Moore needed to respond, she “obviously would have understood.”

The employer's final witness was Wendell Gums, the human resources director.   Gums's office was approximately thirty feet away from Moore's desk.   He testified that he never sensed there was any conflict between Hyman and Moore and had never observed Hyman harassing Moore.

When offered the opportunity by the appeals examiner to offer additional evidence or testimony to refute the testimony provided by Hyman, Moore declined.   Instead, Moore simply commented that her performance exceeded the expectations of her employer, that she “was not on the point of being fired,” and had no recollection of ever “getting written up,” but if she had been, “it would have been for something small.”

On July 24, 2009, the Appeal Tribunal issued a written decision, finding Moore ineligible for unemployment compensation benefits because she left work voluntarily without good cause attributable to her employment.   The appeals examiner reasoned:

․ The claimant alleged that she was being yelled at by her supervisor on a daily basis during their one month together.   The supervisor did verbally counsel the claimant for her lack of work effort a few times per week, although there was no yelling involved.   The claimant was also reprimanded for being on a personal call five minutes into her shift on February 17, 2009, which was against company policy.   The supervisor never falsely accused the claimant of being on any personal calls during the workday.

․

In this matter, the two parties provided opposing testimony.   The employer is considered the more credible party because their [sic] testimony is more believable.   It appeals highly improbable that a manager would yell at, berate or belittle any subordinate on a daily basis for a full month in an office environment.   The more likely scenario was the claimant not handling the reasonable criticism of her work very well.   While there may have been some type of personality conflict going on between the two parties, there is no evidence that the claimant's working conditions were severe enough to justify her sudden decision to resign voluntarily without advance notice.   Therefore, the claimant is disqualified for benefits as of 02/22/09, under N.J.S.A. 43:21-5(a), as the claimant left work voluntarily without good cause attributable to such work.

On November 30, 2009, the Board affirmed the decision of the Appeal Tribunal.

On appeal, Moore contends the Board's decision was erroneous, because:  1) her constitutional rights were violated when she “was not adequately informed in advance of the issues to be raised in the hearing”;  2) the appeals examiner “failed to develop the factfinding” by ignoring Moore's testimony that because Hyman violated company policy when she insisted that Moore split her “hot accounts” with other employees, and because Hyman had encouraged her to engage in unfair debt collection practices, Moore was justified in quitting her job;  3) the appeals examiner “failed to allow relevant evidence to be submitted” that would have refuted Hyman's claim that Moore's work performance was unsatisfactory;  4) the appeals examiner “failed to request documentation” concerning Hyman's assertion that Moore had previously been disciplined for poor work performance;  5) the appeals examiner ignored Moore's testimony that she “was subjected to intentional harassment and abnormal working conditions, [including] harassment for refusing to use illegal methods” for debt collection;  and 6) the decision of the Appeal Tribunal, which the Board adopted, was not based upon substantial and credible evidence.

II.

We review Moore's contentions in accordance with our standard of review.   The Board's determination that Moore was disqualified from receiving benefits must be affirmed unless it is “arbitrary, capricious, or unreasonable” or is not supported by substantial credible evidence in the record as a whole.  Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).   In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's factfinding.  Assoc.  Util. Servs., Inc. v. Bd. of Review, 131 N.J.Super. 584, 588 (App.Div.1974).

An appellate court “may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result.”  In re Petition of County of Essex, 299 N.J.Super. 577, 591-92 (App.Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S.Ct. 1043, 140 L. Ed.2d 108 (1998).  “ ‘In reviewing the factual findings made in an unemployment compensation proceeding, the 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.’ ”  Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App.Div.1985)).   Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, then we must uphold them.  Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).

At the time Moore's claim was denied,¹ a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant is 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 until the individual becomes reemployed and works for four weeks in employment ․ and has earned in employment at least six times the individual's weekly benefit rate․

[N.J.S.A. 43:21-5(a) (emphasis added).]

While the statute does not define “good cause,” the statute has been construed to require more than mere dissatisfaction with working conditions:

In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence.   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.   The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones․  [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.

[Domenico v. Bd. of Review, 192 N.J.Super. 284, 288 (App.Div.1983) (internal quotations and citations omitted).]

“Good cause” is defined by regulation 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).  Thus, an employee who quits a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a).

The test for determining whether an employee's decision to leave work constitutes “good cause” is one of “ ‘ordinary common sense and prudence.’ ”   Brady, supra, 152 N.J. at 214 (quoting Zielinski v. Bd. of Review, 85 N.J.Super. 46, 52 (App.Div.1964)).   The employee's decision to quit “ ‘must be compelled by real, substantial and reasonable circumstances․  ‘ “ Ibid. (quoting Domenico, supra, 192 N.J.Super. at 288).  “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)).

We turn first to point one, in which Moore asserts her constitutional rights were violated because she was not provided advance notice of the issues that would be raised at the Appeal Tribunal hearing.   Contrary to Moore's assertions, the record demonstrates that prior to the hearing, she received a letter from the deputy claims examiner notifying her that she was disqualified for unemployment compensation benefits because there was “no evidence that the conditions of [her] employment were so severe as to cause [her] to leave available work to become unemployed.”   It was that adverse decision from the deputy claims examiner that became the subject of the hearing before the appeals examiner on July 23, 2009.   Thus, because it is evident that Moore received ample notice of the issues that were the subject of the July 23, 2009 hearing, we reject the claim she advances in point one.

As to Moore's contention in point three that the appeals examiner wrongly refused to allow her to introduce evidence that would have refuted Hyman's claim that Moore's work performance was unsatisfactory and that Moore made unauthorized personal calls, the record demonstrates that Moore never requested an opportunity to introduce such evidence.   Instead, she merely confined her response to the statement that if she had been reprimanded, it would have been for “small things.”   Thus, we reject Moore's claim in point three that the appeals examiner interfered with her ability to submit evidence.

Moreover, we fail to see how Moore's personnel records would have affected the Board's determination that Hyman's criticism of Moore's current work performance, and Moore's failure to achieve her employer's productivity standards, justified Hyman's criticism of Moore.   Nor would Moore's personnel file have assisted in resolving the question of whether Hyman's criticism of Moore was dispensed in a confrontational and humiliating manner.

As to point four, we reject Moore's claim that the appeals examiner had an obligation to require Hyman to produce the documents that would have corroborated Hyman's claim that Moore had been disciplined in the past for poor performance.   Because it was Moore's burden to establish her right to unemployment compensation benefits, Brady, supra, 152 N.J. at 218, she alone was responsible for producing evidence and proving her claim.

We turn next to Moore's contention in point two that the hearing examiner failed to properly question Hyman concerning Moore's claim that Hyman had insisted, contrary to company policy, that Moore should share the profits from her “hot accounts” with other employees.   The record demonstrates that the appeals examiner thoroughly and patiently questioned Hyman concerning Moore's central claim that Hyman so ridiculed and criticized her as to make the working conditions intolerable.   Moore made but a passing reference to the issue of splitting her accounts, and consequently we cannot fault the appeals examiner for not pursuing that issue.   Moreover, the appeals examiner offered Moore the opportunity to cross-examine Hyman, but Moore chose not to avail herself of that opportunity.   Had she done so, she could have questioned Hyman on that subject.   We thus reject Moore's claim that she was prejudiced by the appeals examiner's failure to question Hyman on that subject.   As to Moore's assertion that the appeals examiner failed to question Hyman about requesting Moore to engage in unlawful debt collection practices, we defer our discussion of that issue to our analysis of point five.

III.

Next, we address Moore's claim in point five that the Board improperly disregarded evidence of Hyman's alleged insistence that Moore engage in improper debt collection practices.   As the record demonstrates, Hyman did not make any attempt to override Moore's refusal to participate in such practices, nor did Hyman penalize Moore in any way when Moore chose not to avail herself of the “umbrella” telephone feature.   Thus, when Moore refused to participate, no action was taken against her, she was not disciplined, nor was she required to participate in any illegal or fraudulent activity.   Thus, Hyman's comments, if any, amounted to a mere suggestion, nothing more, and the Board was therefore entitled to disregard that episode.   Compare Casciano v. Bd. of Review, 300 N.J.Super. 570, 577 (App.Div.1997) (holding that a claimant's legitimate distress caused by his employer's requiring that he illegally over-charge clients for telephone services constituted good cause for resigning his employment).   We reject the claim Moore advances in point five.

We turn to point six, in which Moore maintains that the Board's decision of November 30, 2009 was unsupported by substantial and credible evidence in the record.   To the contrary, the appeals examiner was presented with diametrically opposed testimony from Moore and Hyman.   He was faced with the responsibility of deciding who was the more credible, which he accomplished by resolving that issue in favor of the employer.   It is the factfinder, here the appeals examiner, who has the opportunity to listen to the first-hand testimony of the witnesses and to decide who is credible and who is not.   Consequently, we owe considerable deference to his credibility findings.  Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).   We have been presented with no meritorious basis upon which to disturb the Board's conclusion that Moore was overly-sensitive to the criticism from Hyman, and abruptly resigned her job after only one month in Hyman's group, and that the conditions at her job were not so intolerable as to satisfy the Domenico standard.   Moreover, as the Board correctly argues, criticism is not harassment.   Hyman may have been a demanding supervisor, but the Board accepted Hyman's testimony that her criticism was appropriate and was delivered in an even-handed and non-harassing manner.   Even if her criticism was unfair, reprimands are a part of the working environment.  Gerber v. Bd. of Review, 313 N.J.Super. 37, 40 (App.Div.1998).   Indeed, as we held in Gerber, “on-the-job reprimands administered to [the] claimant by her supervisor, ․ while public and arguably improper and humiliating, were not so burdensome as to justify [the] claimant's departure from the job.”   Criticism of an employee's performance, “whether warranted or not, ․ [is to] be expected in a normal course of employment.”   Assoc.  Util., supra, 131 N.J.Super. at 589.   The Board's determination that Moore left her employment without good cause attributable to the work is entitled to our deference, as its conclusion is amply supported by substantial and credible evidence in the record.  Brady, supra, 152 N.J. at 210.

Affirmed.

FOOTNOTES

FN1. The statute has since been amended to require the claimant to work for eight weeks in employment and earn at least ten times the individual's weekly benefit rate.   L. 2010, c. 37.   Those changes are not germane to this appeal..  FN1. The statute has since been amended to require the claimant to work for eight weeks in employment and earn at least ten times the individual's weekly benefit rate.   L. 2010, c. 37.   Those changes are not germane to this appeal.

PER CURIAM