SABRINA MEDINA v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0826-17T2

SABRINA MEDINA,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR and
MCLOONE'S WEST ORANGE, LLC,

     Respondents.
________________________________

                    Submitted November 28, 2018 – Decided December 17, 2018

                    Before Judges Koblitz and Mayer.

                    On appeal from the Board of Review, Department of
                    Labor and Workforce Development, Docket No.
                    104,736.

                    Krakower DiChiara LLC, attorney for appellant
                    (Michael R. DiChiara, on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Shaffer,
                    Assistant Attorney General, of counsel; Christopher W.
                    Weber, Deputy Attorney General, on the brief).
               Respondent McLoone's West Orange LLC, has not filed
               a brief.

PER CURIAM

      Petitioner Sabrina Medina appeals from a final agency decision of

respondent Board of Review (Board), disqualifying her from receipt of

unemployment benefits. We reverse.

      Medina worked as a sous-chef at respondent McLoone's West Orange

LLC (McLoone's) from May 2013 until October 2016. On September 21, 2016,

Medina resigned from her position based on discriminatory treatment and

retaliation.

      About five months before Medina resigned, McLoone's hired a new

general manager.       According to Medina, the new general manager was

excessively aggressive. Medina claimed the new general manager treated her

differently. For example, the general manager stated she was unsure Medina

could be trusted with workplace information.       The general manager also

suggested Medina act "bitchier" and "cuntier" to gain respect in the male

dominated restaurant business.      When Medina complained to McLoone's

executive chef about the general manager's harassing conduct, the chef

responded that the general manager "does not do well with other women."



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      Around the same time, May 2016, McLoone's had a sewage back up in the

restaurant, causing unsafe conditions and potential health risks for workers and

customers. Medina refused to work in unsafe conditions or serve food to patrons

under the circumstances. In a formal email, McLoone's management expressed

disappointment in Medina's decision to forego working based on the restaurant's

condition.

      According to Medina, because she refused to work in unsafe conditions at

the restaurant, she was excluded from meetings, required to work erratic shifts,

and overlooked for a promotion. The McLoone's managers told Medina she did

not receive the promotion because of her gender and young age.

      Medina did not want to leave her job at McLoone's. However, the stress

of working under harassing and retaliatory conditions became overwhelming

and negatively impacted Medina's general health and ability to sleep.

      After she left the job, Medina filed a civil action against McLoone's,

alleging discrimination and retaliation. The civil action resolved and Medina is

precluded from providing any further information on that matter.

      Medina also applied for unemployment benefits.        A deputy with the

Department of Labor and Workforce Development (Department) disqualified

her from collecting benefits based on a determination that she left work


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voluntarily without good cause attributable to the work. See  N.J.S.A. 43:21-

5(a).

        Medina   administratively   appealed   the   Department's      denial    of

unemployment benefits to an Appeal Tribunal. The Tribunal heard testimony

from Medina. No one from McLoone's attended the hearing.

        The appeals examiner for the Tribunal found Medina never filed any

formal complaints regarding her treatment by superiors at McLoone's prior to

her resignation. In addition, the examiner did not find the comments and actions

of the new general manager "exceeded the bounds of reason" and thus di d not

constitute harassment.    Further, the examiner concluded that neither "the

employer's refusal to commit itself to promote [Medina] nor [Medina's]

dissatisfaction with her present position [was] good cause for leaving

attributable to the work under the statute." In disqualifying Medina from receipt

of benefits, the examiner wrote:

             There has been no testimony presented showing the
             relationship [between Medina and the new general
             manager] to be abnormal or to have affected a condition
             of health. Thus, mere animosity between [Medina] and
             her new general manager, whether real or imagined,
             does not constitute good cause for leaving work
             voluntarily. [Medina] left due to mere dissatisfaction
             with her working conditions which are not shown based
             upon the testimony presented to be abnormal or to have
             affected [Medina's] health[.] . . . [Medina] has an

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            obligation to do those things reasonably calculated to
            relieve her of the condition or complained of
            circumstances. [Medina] must make reasonable efforts
            to preserve her job before she may be considered as
            justified in quitting. . . . [Medina] cannot [ ] leave work
            even if a cause which is good cause attributable to such
            work exists unless she makes a reasonable effort to
            adjust that grievance. [Medina] failed to make such
            attempts.

      Medina appealed the Tribunal's determination to the Board. The Board

summarily affirmed the Tribunal's decision, disqualifying Medina from receipt

of benefits because she left work without good cause attributable to such work

contrary to  N.J.S.A. 43:21-5(a).

      On appeal, Medina argues she left her job for good cause attributable to

the work and thus qualified for benefits.      Our review of an administrative

agency's final decision is limited. In re Stallworth,  208 N.J. 182, 194 (2011).

We reverse an agency's determination only if it is arbitrary, capricious,

unreasonable, or unsupported by substantial credible evidence. Bailey v. Bd. of

Review,  339 N.J. Super. 29, 33 (App. Div. 2001). "[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




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reasonably so conclude upon the proofs." Brady v. Bd. of Review,  152 N.J. 197,

210 (1997).

      We owe considerable deference to the Board in administering our state's

unemployment compensation laws. Ibid. Nevertheless, based on the discrete

facts in this case, we conclude the agency misapplied the relevant legal standards

and acted arbitrarily, capriciously, and unreasonably in rejecting Medina's claim

for unemployment benefits.

      "Good cause" is not defined in  N.J.S.A. 43:21-5(a). However, "our courts

have construed [the phrase] to mean 'cause sufficient to justify an employee's

voluntarily leaving the ranks of the employed and joining the ranks of the

unemployed.'" Ardan v. Bd. of Review,  444 N.J. Super. 576, 585 (App. Div.

2016) (quoting Domenico v. Bd. of Review,  192 N.J. Super. 284, 287 (App.

Div. 1983)).   "Mere dissatisfaction with working conditions which are not

shown to be abnormal or do not affect health, does not constitute 'good cause'

for leaving work voluntarily." Associated Utility Servs. v. Bd. of Review,  131 N.J. Super. 584, 587 (App. Div. 1974) (quoting Zielinski v. Bd. of Review,  85 N.J. Super. 46, 54 (App. Div. 1964)). "In scrutinizing an employee's reason for

leaving, the test is one of ordinary common sense and prudence." Domenico,

 192 N.J. Super. at 288. In addition, the decision to leave employment "must be


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compelled by real, substantial and reasonable circumstances not imaginary,

trifling and whimsical ones." Brady,  152 N.J. at 214 (quoting Domenico,  192 N.J. Super. at 288).

      Acts constituting harassment, racial prejudice, and gender bias "directed

to an employee are abnormal working conditions and constitute good cause for

that employee to voluntarily leave her employment." Doering v. Bd. of Review,

 203 N.J. Super. 241, 246 (App. Div. 1985).        In Doering, we held sexual

harassment and racially prejudicial and gender biased comments "cannot be

condoned in any place of employment." Id. at 246.

      Here, the appeals examiner did not find incredible Medina's testimony that

the new general manager told her to act "bitchier" and "cuntier" to succeed as a

female in the restaurant industry. Further, there was no testimony contradicting

Medina being asked about her age when she interviewed for a promotion. In

addition, it was undisputed Medina experienced abrupt shift changes and

exclusion from meetings after she refused to work under unsanitary and unsafe

conditions.

      Having reviewed the record, the appeals examiner's decision, summarily

affirmed by the Board, was unsupported based on the credible and

uncontroverted evidence presented by Medina during the hearing. Medina left


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the job due to a hostile work environment at McLoone's, age and gender

discrimination, and retaliation. The working conditions experienced by Medina

are abnormal and her decision to leave McLoone's was based on circumstances

that were real and not imaginary.

      In addition to the abnormal conditions she endured while working at

McLoone's, Medina told the appeals examiner her health had been adversely

affected. Medina presented uncontroverted testimony that she became stressed

and lost sleep as a result of the working conditions at McLoone's. Yet, the

examiner found Medina suffered no health consequences.

      We also disagree with the Board's conclusion that Medina had to take

some action to be entitled to receipt of benefits. Medina was not required to

take action by filing a formal grievance or complaint against McLoone's to be

entitled to unemployment compensation benefits. See Doering,  203 N.J. Super.

at 248. While the failure to report harassing and retaliatory conduct "may be

relevant and probative on the bona fides of [the] claim, it certainly does not in

and of itself disqualify [the claimant] from receiving benefits nor does it prove

that the reason [for quitting] was not sufficient to constitute 'good cause

attributable to such work.'" Id. at 248-49 (quoting Londo v. Bd. of Review,  158 N.J. Super. 172, 175 (App. Div. 1978)).


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      Medina complained to McLoone's executive chef about the new general

manager and her discriminatory, harassing, and retaliatory conduct. In addition,

Medina filed a civil action against McLoone's, alleging discrimination and

retaliation. Having reviewed the record, we are satisfied Medina left her job

under the "pressure of circumstances which may reasonably be viewed as having

[been] compelled" by McLoone's discriminatory conduct and other adverse

conditions of the job. Brady,  152 N.J. at 212-13. We reverse the Board's

determination summarily affirming the decision of the Appeal Tribunal and

remand the matter to the Board to determine the unemployment compensation

benefits to be paid to Medina.

      Reversed and remanded for the Board to enter relief in favor of Medina

consistent with this opinion. We do not retain jurisdiction.




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