ANA RODRIGUEZ v. BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANA RODRIGUEZ,

Appellant,

v.

BOARD OF REVIEW, NEW JERSEY

DEPARTMENT OF LABOR, and

BRIAD MANAGEMENT SERVICES,

L.L.C.,

Respondents.

_______________________________________

January 8, 2015

 

Submitted December 16, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from the Board of Review, Department of Labor, Docket No. 417,618.

Piro, Zinna, Cifelli, Paris & Genitempo, L.L.C., attorneys for appellant (Alan Genitempo, on the briefs).

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

Nukk-Freman & Cerra, P.C., attorneys for respondent Briad Management Services, L.L.C. (Rachel M. Manne and Holly English, on the brief).

PER CURIAM

Ana Rodriguez ("Rodriguez") appeals from a final determination of the Board of Review ("Board"), which found that she was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because she left her job voluntarily without good cause attributable to the work. We affirm.

Rodriguez filed a claim for unemployment benefits on February 17, 2013. A deputy director in the Division of Unemployment and Disability Insurance of the New Jersey Department of Labor determined that Rodriguez was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) because she left her job voluntarily, without good cause attributable to the work. Rodriguez appealed the deputy director's decision to the Appeal Tribunal, which conducted a hearing in the matter on April 9, 2013.

The testimony at the hearing established the following. Rodriguez was employed by Briad Restaurant Group ("BRG") as a clerk assigned to accounts payable. On February 13, 2013, the vice-president of BRG sent an e-mail to all employees, informing them that they were to refrain from walking through the legal development area unless they had a business purpose for doing so.

Rodriguez's immediate supervisor also sent her and the others in her working group an e-mail stating, "Team: The same goes for H.R. area and vice versa accounting area[,]" following up on the vice-president's e-mail. Rodriguez's name was the first name on the list of persons to whom her supervisor sent the e-mail. Rodriguez felt she had been singled out, and she went to Human Resources ("HR") to complain. Rodriguez testified she was told that "if [she didn't] like it here" she could leave.

Rodriguez left work because she felt sick. She did not go to work on February 14th or 15th. She said she stayed home sick with anxiety. On February 18, 2013, Rodriguez went to work early and submitted her resignation. She remained out of work for four months. She said this was due to anxiety. According to Rodriguez, her doctor prescribed medication for her anxiety.

Rodriguez claimed that she had been subject to a hostile work environment and unlawful discrimination. She claimed that a former supervisor had punched her in the shoulder. She stated that this supervisor had demeaned her and made her feel unwelcome. She also stated that she had been told she could not speak Spanish in the workplace.

After these events, which occurred in 2012, Rodriguez took a four-month leave of absence. When she returned, she had a new supervisor. She claimed that the new supervisor would humiliate her. She said he had called her into his office, said she made too many mistakes, and asked her, "Why are you so stupid?"

Rodriguez stated that she had complained to HR about twenty times, between May 2012 and February 2013. She claimed that she had been forced to participate in a cover-up regarding the termination of another employee. She stated that a supervisor would call her at home and yell at her. She also said she and three other workers had filed suit against BRG, asserting claims of a hostile work environment and discrimination.

The appeals examiner (the "examiner") issued a decision, which was mailed on April 10, 2013. The examiner noted that Rodriguez claimed she left her job due to ongoing harassment and discrimination by her supervisor, to the degree that her health was affected. She said she decided that she had no choice but to resign.

The examiner found that Rodriguez failed to meet her burden to demonstrate that the working conditions were abnormal to a degree that would justify her decision to leave her job and become unemployed. The examiner also found that Rodriguez had not shown that her supervisor's e-mail was improper or discriminatory.

In addition, the examiner found that Rodriguez had not presented unequivocal medical documentation indicating that she had been advised to leave her job for medical reasons. The examiner concluded that Rodriguez left her job voluntarily without good cause attributable to the work, and therefore was disqualified for benefits as of February 17, 2013, pursuant to N.J.S.A. 43:21-5(a).

Rodriguez filed an administrative appeal with the Board, which issued a final decision that was mailed on June 5, 2013.

The Board affirmed the decision of the Appeal Tribunal. Rodriguez appeals and argues that the Board's decision is arbitrary and capricious. She contends that the evidence demonstrates that she left her job at BRG as a result of severe and pervasive harassment, which constitutes good cause attributable to the work. She also contends that the Appeal Tribunal erred by failing to weigh the evidence properly.

The scope of our review in an appeal from a final determination of an administrative agency is limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Furthermore, "[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. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

Here, the Board found that Rodriguez was disqualified from unemployment compensation benefits under N.J.S.A. 43:21-5(a), which provides that an individual may not receive benefits if he or she "left work voluntarily without good cause attributable to such work[.]" Although the statute does not define the term "good cause," it 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." Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).

The test for determining whether an employee's decision to leave work constitutes "good cause" is one of "ordinary common sense and prudence." Brady, supra, 152 N.J. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). The employee's decision to quit "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). "A 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)).

In this case, Rodriguez claims that she was subjected to harassment and discrimination that no reasonable worker could be expected to tolerate. We are convinced, however, that based on the evidence presented at the hearing, the Board reasonably found that Rodriguez did not leave her job as a result of the alleged harassment and discrimination, which had largely ended after she took a four-month leave in 2012 and another individual became her supervisor.

The evidence supported the Appeal Tribunal's and the Board's determination that Rodriguez left her job when her new supervisor distributed a company-wide e-mail, with Rodriguez's name at the top of the list of persons to whom the follow-up communication was addressed. Rodriguez said she felt she had been singled out, and she quit her job shortly thereafter.

Although Rodriguez said the e-mail "itself" did not trigger her resignation, the Appeal Tribunal and the Board were free to conclude otherwise, based on Rodriguez's testimony concerning the e-mail and the timing of her resignation. Indeed, when questioned at the hearing as to whether she would have left her job at BRG if the e-mail had not been sent, Rodriguez said, "I don't know."

Furthermore, although Rodriguez claims that the alleged harassment and discrimination caused her to suffer anxiety, she failed to present any unequivocal medical evidence showing that she left her job at BRG because her employment there caused or aggravated a medical condition. In fact, at the hearing, Rodriguez testified that her doctor never advised her to leave the job.

Thus, there is sufficient credible evidence in the record supporting the Appeal Tribunal's and the Board's determination that Rodriguez did not leave her job for good cause attributable to the work. N.J.A.C. 43:21-5(a). Rodriguez failed to show that she left the position for a reason "so compelling as to give [the employee] no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

Affirmed.