CAREN KERN v. BOARD OF REVIEW DEPARTMENT OF LABOR and BRAINSTORM LEARNING AND ARTS, LLC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        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

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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


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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


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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




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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.
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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


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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


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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.




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