ROBYNN C. NELSON v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROBYNN C. NELSON,

Appellant,

v.

BOARD OF REVIEW and

HB FITNESS LLC T/A RETRO FITNESS,

Respondents.

____________________________________

October 14, 2014

Submitted September 2, 2014 Decided

Before Judges Hayden and Leone.

On appeal from the Board of Review, Department of Labor, Docket No. 413,648.

Robynn C. Nelson, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

Respondent HB Fitness LLC t/a Retro Fitness has not filed a brief.

PER CURIAM

Claimant Robynn C. Nelson appeals from the decision of the Board of Review, which found claimant was disqualified for unemployment benefits, reversing the decision of the Appeal Tribunal. We reverse and remand.

I.

The following facts were found by the Appeal Tribunal and adopted as modified by the Board of Review. Claimant worked for respondent HB Fitness LLC t/a Retro Fitness, an exercise center. Claimant was the General Manager from November 2009 through November 16, 2012. She resigned voluntarily based on unsafe work conditions, and accepted employment elsewhere.

The unsafe working conditions arose on September 25, 2012, when claimant discharged a maintenance employee who subsequently became very disgruntled. He was heard by other employees and gym members saying he would stab claimant and choke her to death. The police took claimant's full statement regarding everything that transpired that day. The police filed a report, but claimant did not file charges against the man.

Despite the man's statements, the employer continued to allow the man full access to the exercise center during all hours of operation. Out of concern for her safety, claimant purposely remained out of sight anytime she saw the man in the gym after September 25, and had no further contact with him. However, based on her safety concerns, she accepted an offer of new employment on October 22. On October 29, she provided Retro Fitness her notice of resignation, effective November 16, 2012. After being discharged from her new employment, she filed for benefits.

The Deputy determined that claimant left Retro Fitness voluntarily to accept other employment, and that her reason was personal and not good cause attributable to the work. As a result, she was disqualified from benefits.

Claimant appealed to the Appeal Tribunal, presenting telephonic testimony and the police report. The Tribunal determined that "the claimant's decision to accept other work was directly attributable to very adverse and dangerous working conditions." The Tribunal stated that the "maintenance employee obviously made threats of bodily harm directly towards the claimant upon being discharged." The Tribunal found "ample evidence that the claimant was in physical danger every time this former maintenance worker would use the gym [after] being discharged. The employer's decision to allow him full access to the gym placed the claimant in a very precarious, dangerous situation." The Tribunal concluded that "[a]s the claimant has shown good and compelling cause for resigning this position in connection with her working conditions, the claimant did not leave work voluntarily without good cause attributable to the work and no disqualification arises under N.J.S.A. 43:21-5(a)."

Retro Fitness appealed to the Board of Review. The Board determined that "[t]he Findings of fact as developed by the Appeal Tribunal are substantially correct and are affirmed and adopted," except that "the remarks made by the maintenance worker that he was going to stab and choke the claimant were not heard by the claimant but rather other employees and gym members." Nonetheless, the Board disagreed with the Tribunal, ruled claimant left work voluntarily without good cause attributable to her work, and disqualified her for benefits.

Claimant appeals. We must hew to our "limited" standard of review. See 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 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.'" Ibid. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009).

The Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, provides that an individual shall be disqualified for benefits if "the individual has left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). "'[G]ood cause attributable to such work' means 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). If claimant resigned "for 'good cause attributable to [the] work,' [s]he is eligible for benefits, but if [s]he left for personal reasons, however compelling, [s]he is disqualified under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544 (2008). "The burden of proof is on the claimant to establish good cause attributable to such work for leaving." N.J.A.C. 12:17-9.1(c).

"An individual shall not be disqualified for benefits for voluntarily leaving work if he or she can establish that working conditions are so unsafe, unhealthful, or dangerous as to constitute good cause attributable to such work." N.J.A.C. 12:17-9.4. We have held that "threats of physical violence directed to an employee from which he may reasonably conclude that his personal safety is endangered thereby inculcating a genuine fear in the employee is an abnormal working condition. As such, it constitutes good cause for that employee to voluntarily leave his employment." Condo v. Bd. of Review, 158 N.J. Super. 172, 175 (App. Div. 1978). "An employee cannot reasonably be expected to stay on the job where such threats of physical violence have been made to him." Ibid.; accord Domenico v. Bd. of Review, 192 N.J. Super. 284, 289 (App. Div. 1983); see Doering v. Bd. of Review, 203 N.J. Super. 241, 246 (App. Div. 1985).

According to claimant's testimony and the police report, within the first three weeks of his employment, the twenty-year-old maintenance employee had been caught on security cameras stealing from and casing the exercise center. After claimant fired him, he went to the gym floor and threatened that he would stab her to death and choke her to death in front of other employees and gym members. He then punched some lockers while saying "I'm gonna stab the bitch." When the members and employees informed claimant, she called the police, and was visibly upset and crying. The man was nonetheless allowed to frequent the gym thereafter. When he was there, claimant would go into the ladies room or her office, where she would jump out of her seat if anyone entered. After the incident, the claimant was walked to her car by another employee whenever she left the gym.

The Appeal Tribunal credited claimant's testimony and found she had proven "very adverse and dangerous working conditions." We agree that claimant's undisputed testimony "constitutes good cause for that employee to voluntarily leave his employment." Condo, supra, 158 N.J. Super. at 175. As in Condo, claimant showed that the man made "threats of physical violence directed to" her, that the employer did not remove the threat, that she "reasonably conclude[d] that [her] personal safety [was] endangered," and that she had "a genuine fear" of the man. See ibid.

The Board did not discredit claimant's testimony. Instead, the Board adopted the Appeal Tribunal's findings and reversed on other grounds, which we find legally inadequate.

First, the Board noted that claimant did not file charges against the man. However, the circumstances are not clear cut. Claimant told the police she was considering filing charges and asked the police to tell the man she would file a complaint if another incident occurred. Moreover, claimant testified that, while she was speaking to the police, the co-owner and the regional manager called instructing her to tell the police to "forget about it." In any event, a "claimant's failure to take additional steps" such as legal action against a coworker who was threatening her with physical harm does "not provide a valid basis for disqualifying her from receiving unemployment compensation benefits." Doering, supra, 203 N.J. Super. at 248-49.

Second, the Board noted that claimant had no further contact with the man after his discharge. However, the evidence demonstrates contact was avoided only because claimant hid from the man in her office and the ladies room. There was no evidence that he had ceased to come to the gym or retracted his threats.

Third, the Board determined that "claimant did not demonstrate that her work environment was too dangerous since she continued to work more than seven weeks after the incident." However, claimant's uncontradicted testimony was that she began looking for a new job within three days of the incident, had her first interview two days later, and accepted her first job offer on the day it was received. Promptly securing employment before departure should not be a basis for disqualification. "A claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed," Brady, supra, 152 N.J. at 214 (quotations omitted), even if she cannot "'maintain intact the employer-employee relationship [without] continuing to expose [her]self to the risk of bodily harm," Condo, supra, 158 N.J. Super. at 175-76.

Moreover, some of that seven week period was the approximately two weeks' notice claimant gave Retro Fitness. Giving an employer a normal period of notice should not in itself be a basis to disqualify an employee from benefits. Indeed, the Board took the opposite position in Domenico, unsuccessfully arguing that a claimant threatened with physical harm was disqualified from benefits because her "leaving work without notice . . . deprived her employer of a final opportunity to resolve her dissatisfaction before she left[.]" Domenico, supra, 192 N.J. Super. at 289.

Fourth, the Board determined that "claimant's resignation was precipitated by employer #2's offer of new work and employer #1 was not aware that claimant resigned other than to accept work with employer #2." However, claimant testified she told the co-owner that she was upset about the death threat and that she was unhappy with his decision to allow the man back into the gym. When she called to give notice, claimant told the co-owner she was resigning because the man was still coming to the gym. Even if the offer of new employment was an additional reason, "[a]n individual who leaves work for several reasons, one of which constitutes good cause attributable to such work, shall not be disqualified for benefits." N.J.A.C. 12:17-9.1(d).

Despite notice, the co-owner did not testify before the Appeal Tribunal, and claimant's testimony about her conversations with the co-owner was unrebutted. The owners' witnesses in the Tribunal were the new general manager, who replaced claimant and who overlapped with her at the gym only in her last week, and the regional manager who was not at the gym on the date of the incident. They testified claimant told them she was leaving because she got a new position. The regional manager noted that claimant's resignation letter did not give a reason for her resignation. Claimant testified she did not mention the incident in the letter because the owners knew and she did not want to "burn bridges."

Having complained directly to ownership, complaint's failure to repeat that complaint to others is not itself disqualifying. In Condo, supra, 158 N.J. Super. at 173, 175, the claimant complained to his manager about his coworker's threat of physical violence, and the manager warned the coworker against threatening anybody, but the coworker renewed the threats and the claimant left the job. The Appeal Tribunal and the Board of Review denied benefits, because the claimant had not continued to complain about the coworker's threats of physical harm. Id. at 173. We reversed, holding that "claimant's failure to take additional steps did not provide a valid basis for disqualifying him from unemployment compensation benefits." Id. at 175. "[H]is failure to complain further of the threats after the meeting with the manager . . . certainly does not, in and of itself, disqualify him from benefits or prove that the reason he quit was not sufficient to constitute 'good cause attributable to such work.'" Id. at 176.

Similarly, claimant's choice to omit the incident in her resignation letter to avoid "burning bridges" is not disqualifying considering her prior complaints. In Domenico, supra, 192 N.J. Super. at 286, the claimant left her position at Ancora State Psychiatric Hospital after being assaulted by patients. The appeals examiner and the Board denied benefits, in part because the claimant had subsequently reapplied for the same position, which she did "because she thought it was necessary to do so in order to remain on the list for other state positions." Id. at 290. We reversed, stating that "[c]learly this fact is not substantial evidence that Domenico left work lacking good cause when considered in light of the entire record." Ibid.

Of course, claimant's choice not to repeat her complaints, like all of the factors cited by the Board, "may be relevant and probative on the bona fides of [her] claim[.]" Condo, supra, 158 N.J. Super. at 176. However, the Board did not find that claimant's claim was not made in good faith. Rather, the Board adopted the factual findings of the Appeal Tribunal which credited claimant after hearing all the witnesses. We note that courts give "'due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" See Makutoff v. Bd. of Review, 427 N.J. Super. 218, 223 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 656 (1999)).

The Board of Review has the "authority to engage in a plenary, de novo review of the evidentiary record; i.e., to make findings independent of those made on the Appeal Tribunal level, and to conduct further evidentiary hearings." Messick v. Bd. of Review, 420 N.J. Super. 321, 326 (App. Div. 2011). Here, the Board chose not to do so. The Board instead affirmed and adopted the findings of fact of the Appellate Tribunal, which found claimant accepted other employment "[b]ased upon the unsafe working conditions" and "her safety concerns." Consequently, the Board could not reasonably conclude that claimant was disqualified from benefits. By disqualifying her based on grounds not themselves disqualifying, the Board acted arbitrarily, capriciously, or unreasonably.

Reversed and remanded for determination of benefits. We do not retain jurisdiction.