SABRINA MEDINA VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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."
A-0826-17T2
2
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
A-0826-17T2
3
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
A-0826-17T2
4
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
A-0826-17T2
5
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
A-0826-17T2
6
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
A-0826-17T2
7
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)).
A-0826-17T2
8
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.
A-0826-17T2
9