CAREN KERN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3946-18T1
CAREN KERN,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
and BRAINSTORM
LEARNING AND ARTS, LLC,
Respondents.
____________________________
Submitted February 4, 2020 – Decided February 28, 2020
Before Judges Fisher, Accurso and Rose.
On appeal from the Board of Review, Department of
Labor, Docket No. 149,383.
Milman Labuda Law Group PLLC, attorneys for
appellant (Netanel Newberger, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Sookie Bae, Assistant
Attorney General, of counsel; Sean Patrick Havern,
Deputy Attorney General, on the brief).
Respondent Brainstorm Learning and Arts, LLC, has
not filed a brief.
PER CURIAM
Claimant Caren Kern appeals a final decision of the Board of Review,
disqualifying her from unemployment benefits because she left her job without
good cause attributable to the work. N.J.S.A. 43:21-5(a). We affirm.
The record before the Board reflects Kern worked part-time as a client
relations manager for Brainstorm Learning and Arts, LLC. Six months after she
was hired, Brainstorm's supervisor emailed Kern that she wished to discuss "a
couple of topics," including the manner in which Kern had handled incoming
telephone calls and text messages. Referencing "a lot of spelling errors in
[Kern's] emails and text messages," the supervisor stated: "We are a tutoring
company and we should spell things correctly." The supervisor advised Kern
she would speak with her the following day. But early the next morning, Kern
responded by email, terminating her employment "effective immediately."
Kern's email stated her supervisor's "continuous toxic interactions and treatment
towards [her was] affecting [her] health."
At the hearing before the Appeal Tribunal, the supervisor testified Kern's
final email was the first time Kern had communicated she was dissatisfied with
her work environment. Kern had neither requested a medical accommodation
A-3946-18T1
2
nor leave of absence, and had not complained of workplace harassment. During
her pre-employment interview, Kern had mentioned "she was a cancer survivor"
of several years, but she told the supervisor "everything was clear" and she did
not have any health issues.
Brainstorm's human resources associate corroborated the supervisor's
testimony, echoing that Kern never complained or raised any workplace
concerns before she quit. The associate confirmed Brainstorm had provided
Kern with a manual, delineating the company's procedures for filing a
complaint, but Kern never filed a complaint.
At the hearing, Kern maintained she resigned because she "felt like [she]
was getting abused" at work. Kern said she had expressed her concerns to her
supervisor, the HR associate, and Brainstorm's owner, but "nothing was getting
better." As one example, Kern said she had complained to the HR associate that
her supervisor made a "threatening" remark about mistakes Kern had made on a
"surprise" test, which was administered shortly after Kern started working for
Brainstorm. Kern said the supervisor stated, "if you don't do better . . . do better
or else."
Kern testified that a few months later her supervisor wrote her up for the
manner in which she had handled a call from a prospective client. Unbeknownst
A-3946-18T1
3
to Kern, the caller was a "secret shopper," who was hired by Brainstorm to
evaluate the quality of its customer service. In response to Kern's admittedly
defensive reaction, Kern claims her supervisor responded, "well, if you don't
like it this is it. You could quit." Kern said her supervisor raised her voice
during a video conference in the presence of the HR associate, like "an angry
parent would talk to their [sic] child." Kern alleged her supervisor's conduct
"absolutely" affected her health, claiming she "couldn't sleep." But, Kern
acknowledged she did not receive medical attention, request a leave of absence,
or seek a medical accommodation from Brainstorm, "[b]ecause there was no
reason to."
Although Kern acknowledged an employer's "right to provide feedback"
to its employees when warranted, Kern cited two other incidents in which she
felt harassed by her supervisor. One incident involved Kern's failure to secure
tutors for off-site classes. The other concerned what her supervisor deemed was
Kern's dismissive response to an email from a billing staff member, informing
Kern that many of her submissions contained errors. In sum, Kern felt offended
by her supervisor's reprimands.
Following the three-day hearing, the Appeal Tribunal issued a written
decision, rejecting Kern's arguments that: "her supervisor's criticism created a
A-3946-18T1
4
hostile work environment" and "the work environment adversely affected her
health." The Appeal Tribunal elaborated:
Substantial evidence demonstrated that the supervisor's
communications did not berate or humiliate [Kern], but
brought up performance issues[,] which the employer
had a right to address. The employer has a right to
provide criticism of work performance to staff
members, in an effort to improve their work
performance.
. . . [Kern] did not provide unequivocal medical
documentation to the employer that the work was
aggravating her health. [Kern] did not attempt to
preserve her employment by requesting a leave of
absence or a medical accommodation.
. . . The employer provided substantial evidence that
[Kern] had access to the company policy regarding
harassment and discrimination and the existence of the
human resources department. [Kern] did not make a
reasonable attempt to resolve the issue by complaining
about the work environment to upper management or to
the human resources work department.
Accordingly, the Appeal Tribunal disqualified Kern for benefits, finding
she left her work voluntarily without good cause attributable to the work, and
remanded to the Director of the Division of Unemployment and Temporary
Disability Insurance to determine Kern's "potential liability for refund of
A-3946-18T1
5
benefits" she had received. 1 The Board affirmed the Appeal Tribunal's decision,
concluding Kern was afforded a full hearing and
available evidence supports that although the
supervisor may have been loud and not as friendly and
supportive as [Kern] expected, that behavior did not
create a hostile working environment as it was not
discriminatory, unhealthy or unsafe. Furthermore, . . .
as a part-time employee, working [twenty-eight] hours
per week, [she] could have pursued other employment
prior to leaving the job to become unemployed.
This appeal followed.
On appeal, Kern contends her separation from employment was not
voluntary. In the alternative, she argues she "had good cause to leave her
employment due to the hostile work environment, which was akin to
constructive discharge." Kern's remaining overlapping arguments challenge the
Board's factual and legal findings, claiming its decision was arbitrary and
capricious and violated public policy. She also contends the Appeal Tribunal
and the Board failed to make credibility determinations, discounting her
testimony that the supervisor "repeatedly raised her voice at [Kern], threatened,
1
In reaching its decision, the Appeal Tribunal reversed an earlier decision of
the Deputy Director, which held Kern was eligible for benefits without
disqualification. The parties did not provide that determination on appeal, and
it is not pertinent to our decision.
A-3946-18T1
6
berated and humiliated [her] and, singled [her] out for discipline," thereby
subjecting Kern to a hostile work environment.
Finally, Kern purports to challenge the Board's decision affirming the
Appeal Tribunal's determination that required her to repay $9000 in
unemployment benefits. As stated above, the Board remanded the repayment
issue to the Director for an initial determination. Kern has not, however,
provided us with the Board's final decision establishing her liability to refund
benefits previously received under N.J.S.A. 43:21-16(d). Accordingly, we
decline to consider that portion of Kern's appeal. See R. 2:6-1(a)(1)(C)
(mandating that the appendix include the "determination appealed from or
sought to be reviewed or enforced"); see also Cmty. Hosp. Grp., Inc. v. Blume
Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127
(App. Div. 2005) (stating that an appellate court is not "obliged to attempt
review of an issue when the relevant portions of the record are not included").
We have considered Kern's remaining contentions in light of the record
and the applicable legal principles, and conclude they are without sufficient
merit to warrant extended discussion in our written opinion. R. 2:11-3(e)(1)(E).
Pursuant to our limited standard of review, In re Stallworth, 208 N.J. 182, 194
(2011), we affirm, as did the Board, substantially for the reasons expressed in
A-3946-18T1
7
the Appeal Tribunal's cogent written decision, which "is supported by sufficient
credible evidence on the record as a whole," R. 2:11-3(e)(1)(D); and is not
arbitrary or capricious or inconsistent with legislative policy. See Brady v. Bd.
of Review, 152 N.J. 197, 210-11 (1997). We add the following brief remarks.
Pursuant to N.J.S.A. 43:21-5(a), an employee who "has left work
voluntarily without good cause attributable to such work" is disqualified for
unemployment compensation benefits. "Under this section, the threshold
question is whether an applicant for unemployment compensation benefits left
[the] job 'voluntarily.'" Lord v. Bd. of Review, 425 N.J. Super. 187, 190-91
(App. Div. 2012). An employee has left work "voluntarily" within the meaning
of the statute when "the decision whether to go or to stay lay at the time with the
worker alone." Campbell Soup Co. v. Bd. of Review, 13 N.J. 431, 435 (1953);
see also Utley v. Bd. of Review, 194 N.J. 534, 544 (2008).
Kern claims she left her job because the circumstances were so
inhospitable that she was constructively discharged. As our Supreme Court has
recognized, however, "[a] constructive discharge claim requires more egregious
conduct than that sufficient for a hostile work environment claim." Shepherd v.
Hunterdon Developmental Ctr., 174 N.J. 1, 28 (2002). It requires "conduct that
is so intolerable that a reasonable person would be forced to resign rather than
A-3946-18T1
8
continue to endure" such conduct in the workplace. Ibid. This standard
envisions a "sense of outrageous, coercive and unconscionable requirements."
Ibid.
In this case, Kern asserts that her supervisor's conduct was tantamount to
discharge, but she failed to utilize all the resources available to her to resolve
her perceived problems. She had the ability to report her issues to the HR
department. "[A]n employee has the obligation to do what is necessary and
reasonable in order to remain employed rather than simply quit." Ibid. Kern's
failure in this regard is enough to deny her claim because of her obligation to
take steps to remain employed.
We also reject Kern's contention that the Appeal Tribunal failed to
properly assess and weigh the credibility of the three witnesses. The Appeal
Tribunal's decision rested on its implicit credibility findings. "[C]redibility
findings need not be explicitly enunciated if the record as a whole makes the
findings clear." In re Taylor, 158 N.J. 644, 659 (1999). The record as a whole
made its findings clear.
Affirmed.
A-3946-18T1
9