finding the employee was justified in resigning to avoid participating in the employer's "immoral if not illegal conduct"
How later courts described this case
- finding the employee was justified in resigning to avoid participating in the employer's "immoral if not illegal conduct"
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The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5260-15T2
MARGARET CARR,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
AND ELITE CARE NJ, LLC
a/k/a NEW HORIZONS
PARTIAL CARE PROGRAM,
Respondents.
_______________________________________
Submitted September 14, 2017 – Decided October 11, 2017
Before Judges Haas, Rothstadt and Gooden
Brown.
On appeal from the Board of Review, Department
of Labor, Docket No. 077,606.
Margaret Carr, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Aimee Blenner, Deputy
Attorney General, on the brief).
Respondent Elite Care NJ, LLC has not filed a
brief.
PER CURIAM
Appellant Margaret Carr appeals from the April 13, 2016 final
decision of the Board of Review ("Board") affirming the Appeal
Tribunal's determination that she was disqualified for
unemployment compensation benefits under N.J.S.A. 43:21-5(a)
because she left work voluntarily without good cause attributable
to the work. We affirm.
We discern the following facts from the record. Carr was
employed by Elite Care NJ, LLC as a certified alcohol and drug
counselor from August 2014 through November 14, 2015. Initially
Carr was supervised by a licensed clinical social worker as
required by regulation. See N.J.A.C. 13:34C-6.3(a)(3). In 2015,
her supervisor was replaced by an individual who did not hold the
required certification. Carr determined that she was not legally
permitted to perform her job functions without a properly certified
supervisor and that doing so would jeopardize her own state
certification.
Carr brought her concerns to Elite's attention, but it did
not take any action toward replacing the supervisor. After raising
her concerns with Elite, problems arose between Carr and her
supervisor. Carr ultimately resigned on November 14, 2015 because
of Elite's failure to remedy the situation. Prior to her
resignation, Carr did not lodge any complaints with the State
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Alcohol and Drug Counselor Committee, the entity responsible for
issuing certifications to alcohol and drug counselors and
overseeing the profession. See N.J.S.A. 45:2D-1 to -12; see also
N.J.A.C. 13:34C-1.1 to -6.4.
Carr applied for unemployment benefits in November 2015, and
was notified on December 17, 2015, that she was ineligible for
benefits because she left work voluntarily without good cause
attributable to the work. Carr appealed the determination to the
Appeal Tribunal, which conducted a telephonic hearing and found
that she was ineligible for benefits. In its January 20, 2016
written decision, the Appeal Tribunal found that Carr left her job
voluntarily without good cause attributable to the work because
she failed to demonstrate that there was any merit to her belief
that her certification was ever in jeopardy or that the tension
between Carr and the uncertified supervisor created an adverse
condition that justified Carr's resignation.
Carr appealed the Appeal Tribunal's determination and, in its
April 13, 2016 decision, the Board affirmed. In its written
decision, the Board noted that it considered a post-hearing
submission that Carr made and found that it further supported its
conclusion that the Appeal Tribunal's decision was correct. The
Board stated:
3 A-5260-15T2
On the basis of the record below, we agree
with the decision reached. Additionally, on
appeal to the Board of Review, the claimant
presents a copy of a complaint she filed on
March 18, 2016 with the Division of Consumer
Affairs State Board of Social Work Examiners
concerning this situation. The complaint
demonstrates that the claimant did not take
reasonable steps to resolve her grievances
prior to leaving work. The fact that the
claimant's license could have been revoked due
to the lack of proper supervision remains a
mere speculation; there has been no relevant
evidence presented to establish it as a
factual matter.
This appeal followed.
Before us, Carr contends the Board erred in finding she was
disqualified for benefits pursuant to N.J.S.A. 43:21-5(a). We
disagree.
Our review of an administrative agency decision 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. (quoting Self v. Bd. of Review, 91 N.J.
4 A-5260-15T2
453, 459 (1982)). Only if the Board's "action was arbitrary,
capricious, or unreasonable" should it be disturbed. Ibid.
The New Jersey Unemployment Compensation Law states an
individual shall be disqualified for benefits:
For 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).]
N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such
work" 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."
Appellant admitted during the hearing that she left her job
voluntarily. The crux of her claim on appeal is that she left
voluntarily with good cause–—specifically, that Elite's failure
to insure that her supervisor be "a professional who possess a
clinical license . . . constitut[ed] good cause attributable to
the work." We disagree.
As a preliminary matter, Carr had the burden of proof in
establishing that she left her job for good cause attributable to
5 A-5260-15T2
her work. Brady, supra, 152 N.J. at 218. Carr was also obligated
to establish that she did everything "necessary and reasonable in
order to remain employed." Domenico v. Bd. of Review, 192 N.J.
Super. 284, 288 (App. Div. 1983). That burden can be satisfied
by evidence that she was required to engage in unethical or illegal
practices. See Casciano v. Bd. of Review, 300 N.J. Super. 570,
576-77 (App. Div. 1997) (finding the employee was justified in
resigning to avoid participating in the employer's "immoral if not
illegal conduct").
In this case, the Appeal Tribunal found, and the Board agreed,
that Carr's resignation was due to her incorrect interpretation
of the applicable regulations and her failure to take any action
to protect her employment prior to resigning. These findings are
supported by credible evidence in the record. Specifically, Carr
failed to seek any determination by the regulatory committee that
her concerns about her employer's actions were legitimate or that
her own certification was in jeopardy. The applicable regulations
make provision for specific actions to be taken to correct any
valid "inadequacies" after the regulatory committee receives
notification of an issue with a certified drug and alcohol
counselor's supervision. See N.J.A.C. 13:34C-6.4(c).
Under the circumstances, we agree that Carr did not utilize
all of the resources available to her, such as reporting her
6 A-5260-15T2
concerns to the proper regulating authority, in order to protect
her position. We discern no basis for disturbing the Board's
determination, as Carr has not demonstrated that it was arbitrary,
capricious, or unreasonable.
Affirmed.
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