CAROLINE MYLETT VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0324-17T4
CAROLINE MYLETT,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
and CARYN MAX
SALON WEST, LLC,
Respondents.
_____________________________
Submitted January 29, 2019 – Decided February 8, 2019
Before Judges Hoffman and Firko.
On appeal from the Board of Review, Department of
Labor and Workforce Development, Docket No.
119,229.
Caroline Mylett, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Shareef M.
Omar, Deputy Attorney General, on the brief).
Respondent Caryn Max Salon, LLC, has not filed a
brief.
PER CURIAM
Claimant appeals from the August 4, 2017 final decision of the Board of
Review (Board) disqualifying her from receiving unemployment benefits after
finding she left work voluntarily without good cause attributable to her work.
Because the Board's factual findings were not supported by substantial credible
evidence, and the Board overlooked contrary evidence, we reverse.
Our review of administrative agency decisions is limited. In re Stallworth,
208 N.J. 182, 194 (2011). We will not reverse an agency's decision unless it is
arbitrary, capricious, or unreasonable. Ibid. Agency action is arbitrary,
capricious, and unreasonable if the record does not contain substantial credible
evidence to support the findings on which the agency based its decision. Ibid.
Additionally, when "an agency 'overlook[s] or undervaluat[es] . . . crucial
evidence,' a reviewing court may set aside the agency's decision." Cottman v.
Bd. of Review, 454 N.J. Super. 166, 171 (App. Div. 2018) (alterations in
original) (quoting Trantino v. N.J. State Parole Bd., 166 N.J. 113, 192 (2001)).
We "must also give due regard to the opportunity of the one who heard
the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J.
Super. 346, 348 (App. Div. 1997). The Board has "the authority to make
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different credibility assessments" than the Tribunal "where the record is open to
competing interpretations." Messick v. Bd. of Review, 420 N.J. Super. 321, 330
(App. Div. 2011). We recognize, however, that if the Board did not hear the
evidence directly, it is "in a poor position to determine the credibility of the
claimant." Logan, 299 N.J. Super. at 348.
New Jersey's Unemployment Compensation Law disqualifies a person
from receiving unemployment benefits if he or she "left work voluntarily
without good cause attributable to such work." N.J.S.A. 43:21-5(a). The phrase
"good cause attributable to such work" is defined 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). "The test of
'ordinary common sense and prudence' must be utilized to determine whether an
employee's decision to leave work constitutes good cause." Brady v. Bd. of
Review, 152 N.J. 197, 214 (1997) (quoting Zielenski v. Bd. of Review, 85 N.J.
Super. 46, 52 (App. Div. 1964)). The employee bears the burden of proof to
establish good cause. Id. at 218; N.J.A.C. 12:17-9.1(c).
N.J.S.A. 43:21-5(a) "protects not only workers who are involuntarily
unemployed—those who are laid-off or terminated from their jobs by their
employers—but also those who voluntarily quit their jobs for good cause
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attributable to their work." Utley v. Bd. of Review, Dep't of Labor, 194 N.J.
534, 543-44 (2008). Because an employee "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)),
however, the employee's decision to quit "'must be compelled by real,
substantial and reasonable circumstances not imaginary, trifling, and whimsical
ones.'" Ibid. (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 288
(App. Div. 1983)).
If "an employee knows that he or she is about to be fired, the employee
may quit without becoming ineligible." Cottman, 454 N.J. Super. at 170. Thus,
"an employee need not wait to be fired when discharge is imminent[,]" but
instead "may resign and still be eligible for benefits." Id. at 172-73. The
determination of whether a worker quit in the face of being fired calls for a fact-
sensitive analysis "of all relevant factors . . . ." Utley, 194 N.J. at 548. The facts
must "'indicate a strong probability that fears about the employee's job security
will in fact materialize, that serious impending threats to [the employee 's] job
will be realized, and that the employee's belief that his [or her] job is imminently
threatened is well founded.'" Shuster v. Bd. of Review, 396 N.J. Super. 240,
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245 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603,
606 (App. Div. 1997)).
Appellant worked as a bookkeeper for Caryn Max Salon West, LLC, from
April 20, 2011, through April 5, 2017. 1 On Tuesday March 28, 2017, Caryn
Procaccini, the owner of the salon, held a staff meeting to institute a new "gossip
policy" because she perceived "negativity in the salon." The following day,
another employee gave claimant an eyebrow service, during which they
discussed the new gossip policy and also discussed a client who was not happy
with the services she received. Unbeknownst to them, Procaccini listened to
their conversation from the other side of a closed door, and believed that they
violated the new gossip policy.
When the eyebrow service concluded, Procaccini approached claimant
and told her that she wanted to meet with her, but the two were unable to meet
that day. Claimant testified that when she arrived at work the following
Monday, "everything," including her desk and other "stuff," was cleared out,
and her file cabinets were locked. Claimant did her usual payroll work that day.
1
The number of "inaudible" notations in the transcript makes it hard to discern
the testimony and hinders our review.
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Claimant and Procaccini finally met on the morning of Wednesday April
5, 2017. Procaccini began by asking claimant numerous questions, including
what work she still needed to finish that week, how much the salon paid for its
cleaning service, and how to access files on the computer. Fearing that she was
going to be fired "any minute," claimant quit. Procaccini then produced a letter
of resignation and asked appellant to sign it, but claimant refused. Claimant
testified that she later learned that Procaccini had already hired a new
bookkeeper who started the same day that claimant separated from her
employment.
Procaccini testified that claimant was required to clock out and get a
manager's approval before getting any "personal service", which she did not do.
Procaccini also said that she overheard claimant discussing the staff meeting and
new gossip policy while getting her eyebrows treatment, which Procaccini
believed violated the new gossip policy.
Procaccini admitted that she cleared out the office that she shared with
claimant. She said that she had cleaned out the office previously, but later
clarified that although she swept it out "occasionally," she never before "did a
detail of it" like she did on this occasion. She denied purposely removing the
desktop icons on claimant's computer, claiming that she "backed up" claimant's
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computer and the files were inadvertently minimized. She also explained that
she locked the file cabinets containing employee personnel files because sh e did
not want anyone else to have access to her employees' personal information, and
that she had requested that claimant do so in the past.
Procaccini said she asked claimant questions about bookkeeping,
computer passwords, and company procedures when they met because she had
to "protect [her]self" in case claimant quit. Procaccini insisted that she hired the
new employee as a receptionist before claimant separated from employment, and
"low and behold" the new employee had some background in bookkeepin g and
"took over right away." Procaccini maintained that she did not fire claimant and
that claimant quit voluntarily.
On June 13, 2017, the Appeal Tribunal (Tribunal) concluded that claimant
was entitled to unemployment benefits because she did not leave her job
voluntarily without good cause attributable to the work under N.J.S.A. 43:21 -
5(a). Instead, it found that Procaccini's actions supported claimant's belief that
"her discharge was imminent" and claimant "resigned in lieu of imminent
discharge." The Tribunal relied on Procaccini "requesting operational
information" from claimant, as well as Procaccini's actions removing claimant's
desktop from her computer, locking the file cabinets, and "box[ing] other
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documents used by [claimant] to perform her duties." The Tribunal also found
that claimant did not intend to violate the no gossip policy, that any violation
was not deliberate, wanton, or willful, and that claimant therefore was not
disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(b)
due to employee misconduct. Because no disqualifications applied, the Tribunal
determined that claimant was entitled to receive unemployment benefits.
On August 4, 2017, the Board reversed the Tribunal's decision. The Board
did not make any credibility determinations. The Board, however, felt
"compelled to rewrite the Findings of Fact as those of the Appeal Tribunal do
not reflect the record." Specifically, the Board made the following factual
findings:
[Claimant] was upset with the owner, who had asked
her some questions about the files and payroll. The
owner was not disrespectful toward [claimant]. The
owner had cleaned the office, including [claimant]'s
desk, prior to April 3, 2017. She did not remove the
desktop that [appellant] was using or [claimant]'s
belongings. The owner locked the personnel files,
because they had confidential information. The owner
intended to meet with [claimant] on April 5, 2017 to
discuss with her the gossip policy. However,
[appellant] resigned before she had the opportunity to
do so. [Claimant]'s job was not in jeopardy at the time
of her separation.
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Based on those findings, the Board concluded that claimant left work voluntarily
without good cause attributable to the work and was therefore disqualified from
receiving unemployment benefits under N.J.S.A. 43:21-5(a).2
On appeal, claimant argues that the Board did not base its findings on
substantial credible evidence in the record and ignored contrary evidence. We
agree.
The Board's conclusion that claimant's job was not in jeopardy at the time
she quit was based on factual findings that were not supported by the record.
For instance, the Board found that Procaccini cleaned the office, including
claimant's desk, prior to April 3, 2017. Although Procaccini said that she had
cleaned the office in the past, she later clarified that she would "sweep it out
occasionally," but admitted that she never, as she put it, "did a detail" like she
did in this instance. There was no testimony that Procaccini had ever cleaned
claimant's desk or locked the filing cabinets previously. The Board also found
that Procaccini did not remove the "desktop" from claimant's computer, but
Procaccini acknowledged that she inadvertently "minimized" the icons on
claimant's desktop when she "backed up" claimant's computer.
2
The Board agreed with the Tribunal that claimant was not disqualified from
receiving unemployment benefits for employee misconduct related to violating
company policy under N.J.S.A. 43:21-5(b).
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More significantly, the Board found that Procaccini intended to meet with
claimant on April 5, 2017, but that claimant "resigned before she had the
opportunity to do so." Both parties testified, however, that they met on April 5,
and that Procaccini asked claimant a series of questions about claimant 's
remaining work, bookkeeping, computer passwords, and company procedures.
It was at that point that claimant, fearing she was going to be fired "any minute"
based on Procaccini's questioning, quit her position. The Board's finding that
claimant resigned before the meeting was not supported by the evidence in the
record.
The Board also either overlooked or underappreciated evidence in the
record supporting claimant's claim. The Board did not consider that once
claimant announced that she was quitting, Procaccini produced a pre-written
letter of resignation and asked her to sign it. It also did not consider that a new
receptionist/bookkeeper started work the same day claimant quit, which we have
recognized is evidence indicating "imminent layoff or discharge[.]" Shuster,
396 N.J. Super. at 247.
Because the Board did not base its findings on substantial credible
evidence in the record and overlooked contrary evidence in reaching its
conclusions, its decision was arbitrary, capricious, and unreasonable.
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Accordingly, we reverse the final decision of the Board, and remand the case to
the Division of Unemployment and Disability Insurance to determine the
amount of unemployment compensation benefits owed to claimant.
Reversed and remanded. We do not retain jurisdiction.
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