KENYA WOOTEN v. BOARD OF REVIEW DEPARTMENT OF LABOR and KOHL'S DEPARTMENT STORES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4012-07T34012-07T3

KENYA WOOTEN,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and KOHL'S DEPARTMENT

STORES, INC.,

Respondents.

_______________________________________

 

Submitted October 26, 2009 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 173,489.

Herbert J. Tan, L.L.C., attorneys for appellant (Herbert J. Tan, on the brief).

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Kohl's Department Stores, Inc. has not filed a brief.

PER CURIAM

Kenya Wooten appeals from a final determination of the Board of Review (Board) which found that she is disqualified from unemployment benefits as of September 23, 2007, because she left work voluntarily without good cause attributable to the work. We affirm.

Wooten was employed by Kohl's Department store as a part-time cashier from June 7, 2007, through September 29, 2007. On October 28, 2007, Wooten filed an application for unemployment benefits, which was granted by a deputy claims examiner. Kohl's appealed the deputy's determination to the Appeal Tribunal, and a telephone hearing in the matter took place on January 28, 2008.

At the hearing, Wooten testified that the job "did not turn out to be what [she] [expected][.]" Wooten stated that in July 2007, a customer was "allowed to curse" at her. She said that she had "words" with her supervisor because she "[did not] feel comfortable with working in a position [where] [it was] okay for a customer to curse out an employee." Wooten stated that she "felt threaten[ed]."

Wooten further testified that she left the job because management led to her to believe that the "[c]ustomers are always right and employees [do not] mean anything." She asserted that "when a customer can curse out an employee and . . . still be allowed to shop in the [store]. . . that to me is dangerous." Wooten said that she was concerned about her safety but acknowledged that during the first incident, Lori Holmes (Holmes), the assistant store manager, stepped in with store security and "defused" the situation.

Wooten additionally testified that another incident occurred on September 15, 2007. She testified that it was a slow day at the cash register and a customer insisted upon purchasing an item at a price that was not the correct price. The customer accused Wooten of being rude and reported her to an assistant store manager, Rebecca.

In accordance with Kohl's protocol, Wooten was "pulled off the floor" and the customer's complaint was reported to Robin Stephanie (Stephanie), the store manager. Wooten stated that it was "horrible that a customer can complain [about] an employee with no justification[.]" Wooten said that she did not agree with the company's policy and could not "work for Kohl's any longer."

Wooten also said that she felt as if she was being reprimanded. Wooten said that she "was an outstanding employee" who did her job "to the fullest." She stated that she was "the only one" who was "called in the office at every given time for defusing situations[.]" Wooten said that she felt as if she was "being attacked." She conceded that no one at Kohl's threatened to terminate her employment and she had "never been written up."

Holmes testified that she and Stephanie were responsible for disciplining employees. She stated that Rebecca had handled the September 15th incident in accordance with company's protocol. Holmes said that she and Stephanie had decided that no disciplinary action was warranted at that time. Holmes also said that it is Kohl's policy to keep its customers happy. She stated that, when Wooten gave notice that she was leaving, work was available at the store.

The Appeal Tribunal rendered a decision that was mailed to the parties on January 29, 2008. The appeal examiner found that

[t]he claimant's decision to leave employment because she was dissatisfied with the conditions of employment is not justified. The claimant was never threatened with termination. Management was simply following [the] company's protocol in the handling of customers['] complaints. There is, therefore no evidence that the conditions of employment were so severe as to cause the claimant to leave available work to become unemployed. The claimant left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 9/23/07 in accordance with N.J.S.A. 43:21-5(a).

Wooten appealed to the Board, which rendered a final determination on March 31, 2008, upholding the Appeal Tribunal's decision. This appeal followed.

Wooten argues that the Board erred by accepting the Appeal Tribunal's decision. She maintains that Kohl's had a policy to "always appease" the customer, even if the employee "feels that she is in danger." Wooten says that customers were permitted to berate her "without any repercussions" and the employer's "policy of subjecting employees to such situations made the work situation hostile and unbearable." Wooten also argues that the appeal examiner erred by failing to conduct "even a cursory examination" to follow up on her assertion that she had been subjected to a hostile work environment.

"'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 v. Bd. of Review, 152 N.J. 197, 210 (1947) (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, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

New Jersey's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30, provides in pertinent part that an individual who leaves "work voluntarily without good cause attributable to such work" is disqualified from receiving unemployment benefits "[f]or the week in which the individual has left" until such time as the individual becomes re-employed, works four weeks, and earns "in employment at least six times the individual's weekly benefit rate[.]" N.J.S.A. 43:21-5(a). The statute does not define "good cause." However, that term has been construed to mean a "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Brady, supra, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)).

In determining whether an employee had "good cause" to leave his or her employment, we apply a test of "'ordinary common sense and prudence.'" Ibid. (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "Good cause" exists if the employee's decision to leave his or her employment was "'compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). The 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 are convinced that there is sufficient credible evidence in the record for the Board's finding that Wooten voluntarily left her job at Kohl's without good cause attributable to the work. Here, the record shows that Wooten resigned her job voluntarily because she was dissatisfied with the employer's policy for handling customer complaints. Although Wooten asserts that the customer's policy left her vulnerable to threatening behavior by irate customers, the record does not support her assertion.

It is clear, therefore, that Wooten was dissatisfied with the working conditions at Kohl's but failed to establish that those conditions were out of the ordinary or harmful to her health or well being. Wooten's dissatisfaction was the job "does not constitute good cause for leaving work voluntarily." Domenico, supra, 192 N.J. Super. at 288.

Wooten argues, however, that the appeal examiner erred by failing to conduct an inquiry to determine whether she had a "reasonable perception of fear in the work environment." We disagree. Wooten failed to present sufficient evidence to substantiate her assertion that she had a "reasonable perception of fear" in the workplace. Moreover, Wooten chose to appear at the hearing without an attorney and she was permitted to testify fully in support of her appeal. The appeal examiner was not required to elicit testimony to bolster her claim.

Affirmed.

 

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A-4012-07T3

November 5, 2009