KENDRA D. BROWN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3863-15T4
KENDRA D. BROWN,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, and ALLIEDBARTON
SECURITY SERVICES,
Respondents.
_______________________________
Submitted January 16, 2018 – Decided June 13, 2018
Before Judges Ostrer and Whipple.
On appeal from the Board of Review, Department
of Labor, Docket No. 072,656.
Kendra D. Brown, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Adam K. Phelps, Deputy Attorney
General, on the brief).
Respondent AlliedBarton Security Services has
not filed a brief.
PER CURIAM
Claimant Kendra D. Brown appeals from the March 24, 2016
decision of the Board of Review (Board) disqualifying her from
receiving unemployment benefits under N.J.S.A. 43:21-5(a) because
she left her job voluntarily and without good cause attributable
to work. We affirm.
Claimant was employed by AlliedBarton Security Services
(AlliedBarton) as a security officer from September 2012 through
September 2015, when she left her employment. AlliedBarton
contracts to provide security for companies nationwide, including
in New Jersey. Claimant was specifically hired to work at Fidessa,
a site in Somerset, New Jersey; she worked an overnight shift from
6:00 p.m. to 12:00 a.m.
In June 2015, claimant requested a transfer to a different
job site at Horizon, in Ewing, New Jersey, where she believed she
could receive full-time employment at a higher pay rate. The
handbook detailing the policies and procedures followed by
AlliedBarton, which was given to claimant when she was hired,
provided that the company would make all efforts to accommodate
transfer requests, but they were not guaranteed.
On July 1, 2015, claimant met with AlliedBarton's Regional
Director of Human Resources, Jeanette Whitman-Lee, who told
claimant because she was hired for a particular position at a
particular site, her current position at Fidessa would first have
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to be filled. After that position was filled, she would be placed
in the "reassignment pool" and would be considered for any open
positions. In the meantime, she was not prohibited from applying
to and interviewing with the recruiters at any job sites where she
wished to be transferred.
Later that week, claimant met with the field operations
manager in charge of Fidessa, Salvatore Cifone. He informed
claimant he was not approving any transfers until he filled all
currently open positions because that would inconvenience Fidessa.
Claimant became upset, informed him that she was recording their
conversation, and asserted that he was blocking her transfer
because of a personal issue with her. Cifone assured her that his
reasons were solely business related. That same month, he put in
a job requisition to begin the process of filling claimant's
position at Fidessa so that she might transfer.
Thereafter, claimant spoke on the phone to the field
operations manager for Horizon. However, she did not formally
apply or request an interview for this job site.
At the end of July 2015, claimant filed civil rights
complaints against AlliedBarton with the Equal Employment
Opportunity Commission. She alleged discrimination due to an
underlying medical condition and retaliation, asserting other
employees had been allowed to transfer to new job sites.
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On August 20, 2015, Cifone informally reprimanded claimant
for trading shifts with another security officer without notifying
him as required by AlliedBarton policies and procedures. Again,
claimant became upset, arguing Cifone had a personal issue with
her.
On or around August 24, 2015, AlliedBarton hired a new
security guard to fill claimant's position. However, when the new
guard arrived at work, claimant initially refused to train her,
complained she had not been notified in advance, and did not
believe the new guard had the authorization to be on Fidessa
property. Cifone claimed he had tried to notify claimant in
advance, but she did not answer the phone and did not have
voicemail. It was only after an argument with Cifone that claimant
agreed to train the new guard.
On August 26, 2015, claimant sent an email to Cifone
requesting to see her employee file, which he forwarded to human
resources. Human resources agreed to accommodate this request,
but on August 28, claimant withdrew her request to see the file.
That same week, Cifone conducted a site inspection and noticed
claimant was not in the correct uniform required by Fidessa. Her
uniform shirt was too large, requiring her to wear layers under
it, and she was wearing the wrong pants, shoes, and earrings.
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On August 31, 2015, Cifone emailed claimant telling her she
was removed from Fidessa and instructed her not to report for her
shift. He also informed her she should contact him so they could
sit down and "discuss the events that transpired last week," but
she never reached out.
On September 3, 2015, Whitman-Lee sent claimant a letter via
email and regular mail, informing her she needed to speak with her
about her performance issues before claimant would be able to
return to work. Whitman-Lee asked that this meeting take place
before September 11, 2015.
From that point on, claimant refused to schedule a meeting
with AlliedBarton, despite repeated attempts to contact her.
Claimant asserted it would have been a conflict because of the
civil rights complaint, and she wanted to have a third party
present at any meeting. AlliedBarton repeatedly told claimant
third parties were not allowed in employer-employee meetings,
unless they were a designated union representative.
Claimant filed for unemployment benefits, effective as of
August 30, 2015. On October 14, 2015, the Deputy of the Division
of Unemployment and Disability Insurance (Deputy) concluded that
she was disqualified from benefits because her actions were
"evidence of [her] intention to sever the employer-employee
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relationship." Therefore, he determined claimant had left her job
voluntarily and without good cause.
Claimant appealed the decision of the Deputy to the Appeal
Tribunal (Tribunal), and a hearing was held on November 18, 2015.
After hearing testimony from claimant, Whitman-Lee, and Cifone,
the Tribunal found the AlliedBarton representatives provided
credible and compelling testimony and the evidence at the hearing
established the actions of the company were in accordance with its
established policies and procedures. Further, the evidence
supported AlliedBarton's position that the "performance issues"
the employer wanted to discuss were justifiably tied to violations
of policy claimant did in fact commit and not the result of a
personal vendetta. Thus, claimant was disqualified because she
voluntarily left work, was not subjected to hostile working
conditions, and did not make reasonable attempts to remain
employed. Accordingly, the Tribunal affirmed the Deputy's
decision.
Claimant appealed the Tribunal's decision to the Board of
Review (Board). On March 24, 2016, the Board affirmed1 the
1
However, the Board modified the decision to provide that the
disqualification ended as of January 2, 2016, because claimant had
gained employment at which she had worked eight weeks and earned
"at least ten times the individual's weekly benefit rate."
N.J.S.A. 43:21-5(a).
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decision of the Tribunal, reasoning claimant had received a full
and impartial hearing and there were no grounds for further review.
This appeal followed.
On appeal, claimant argues her decision not to meet with
human resources without a third party present, as well as her
civil rights complaint and various other personal commitments,
constitute good cause attributable to work preventing her
disqualification. We disagree.
We exercise "a limited role" in the review of administrative
agency decisions. In re Stallworth, 208 N.J. 182, 194 (2011)
(citation omitted). "In order to reverse an agency's judgment,
an appellate court must find the agency's decision to be
'arbitrary, capricious, or unreasonable, or not supported by
substantial credible evidence in the record as a whole.'" Ibid.(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Lastly, a "strong presumption of reasonableness attaches to the
actions of the administrative agencies." In re Carroll, 339 N.J.
Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J.
Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)).
A reviewing court is limited to determining:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
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its action; and (3) 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 factors.
[Mazza v. Bd. of Trustees, 143 N.J. 22, 25
(1995) (citing Campbell v. Dep't of Civil
Serv., 39 N.J. 556, 562 (1963)).]
Moreover, we do not substitute our own judgment for the
agency's, even though we might have reached a different result.
In re Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J.
474, 483 (2007)).
Under N.J.S.A. 43:21-5(a), an individual 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
. . . ." "Claimants bear the burden of proof to establish their
right to unemployment benefits." Brady v. Bd. of Review, 152 N.J.
197, 218 (1997) (citing Zielenski v. Bd. of Review, 85 N.J. Super.
46, 51 (App. Div. 1964) and DiMicele v. General Motors Corp., 51
N.J. Super. 167, 171 (App. Div. 1958), aff'd, 29 N.J. 427 (1959)).
"Furthermore, when an employee leaves work voluntarily, [she]
bears the burden to prove [she] did so with good cause attributable
to work." Ibid. (citations omitted).
Here, claimant left her job voluntarily. AlliedBarton did
not formally discharge her from employment. She had initiated a
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job transfer request, and at that time, it was explained to her
that the process involved her position being filled, being placed
into the reassignment pool, and then applying for the desired
position.
Moreover, although she was instructed not to return to Fidessa
on August 31, 2015, she was still considered an employee under the
AlliedBarton policies and procedures. The AlliedBarton employee
handbook provides, "[w]hen an employee's assignment or post ends,
he or she is still employed by AlliedBarton[.]" Furthermore, an
employee's repeated refusal of future offers of work assignments
"will constitute [a] voluntary resignation." Also, "[t]hirty
consecutive days of inactive work status and/or lack of [a]
response regarding new assignments will be considered [a]
voluntary resignation." As such, claimant must show her voluntary
resignation was due to good cause attributable to work.
Although good cause is not statutorily defined, "our courts
have construed [the phrase] to mean 'cause sufficient to justify
an employee's voluntarily leaving the ranks of the employed and
joining the ranks of the unemployed.'" Ardan v. Bd. of Review,
444 N.J. Super. 576, 585 (2016) (quoting Domenico v. Board of
Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). "Mere
dissatisfaction with working conditions which are not shown to be
abnormal or do not affect health, does not constitute 'good cause'
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for leaving work voluntarily." Associated Util. Servs., Inc. v.
Bd. of Review, 131 N.J. Super. 584, 587 (App. Div. 1974) (citations
omitted). "In scrutinizing an employee's reason for leaving, the
test is one of ordinary common sense and prudence." Domenico, 192
N.J. Super. at 288 (citation omitted). Furthermore, the decision
to leave employment "must be compelled by real, substantial and
reasonable circumstances not imaginary, trifling and whimsical
ones." Brady, 152 N.J. at 214 (citation omitted).
"[S]exual harassment, racially prejudicial and gender biased
comments, and threats of physical violence directed to an employee
are abnormal working conditions and constitute good cause for that
employee to voluntarily leave her employment." Doering v. Bd. of
Review, 203 N.J. Super. 241, 246 (App. Div. 1985) (citations
omitted); see Associated Util. Servs., 131 N.J. Super. at 587.
However, claims of this nature must be supported by sufficient,
credible evidence. Gerber v. Bd. of Review, 313 N.J. Super. 37,
39-40 (App. Div. 1998). Claimant submitted no evidence beyond
hearsay statements, allegedly made by a third party, to support
her assertions that AlliedBarton discriminated against her because
of her medical condition or retaliated against her for filing a
civil rights complaint.
The Tribunal found Whitman-Lee and Cifone, the witnesses for
AlliedBarton, to be credible. Further, the Tribunal found the
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evidence supported that AlliedBarton's actions were in accordance
with its policies and procedures, and the actions taken were in
response to genuine performance issues related to violations of
policy by claimant. We find no basis to disturb the findings of
the Tribunal, as relied upon by the Board.
Accordingly, the Board correctly determined that claimant was
disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-
5(a). The Tribunal's determination, adopted by the Board, that
claimant left work voluntarily without good cause attributable to
the work is supported by substantial credible evidence in the
record as a whole and is not arbitrary, capricious, or
unreasonable.
Affirmed.
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