KENIA NUNEZ VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4656-18T2
KENIA NUNEZ,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and NEW JERSEY SCHOOLS
DEVELOPMENT AUTHORITY,
Respondents.
___________________________
Submitted June 1, 2020 – Decided June 18, 2020
Before Judges Geiger and Natali.
On appeal from the Board of Review, Department of
Labor, Docket No. 176,359.
Kenia Nunez, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review, (Donna Sue Arons,
Assistant Attorney General, of counsel; Achchana C.
Ranasinghe, Deputy Attorney General, on the brief.)
Respondent New Jersey Schools Development
Authority has not filed a brief.
PER CURIAM
Appellant Kenia Nunez appeals from the June 3, 2019 final decision of
respondent Board of Review (Board), which affirmed the April 9, 2019 decision
of the Appeal Tribunal that appellant was disqualified from receiving
unemployment benefits pursuant to N.J.S.A. 43:21-5(a). The Board denied
appellant's benefits, finding she left her employment at respondent New Jersey
Schools Development Authority (SDA) voluntarily without good cause
attributable to her work. We affirm.
Appellant was employed by the SDA as the Deputy Director of Grants
from October 15, 2018 to February 8, 2019. According to appellant's testimony
before the Appeal Tribunal, the SDA's Deputy Chief of Staff, Patricia Cabrera,
informed her on February 7, 2019 that the agency received a phone call from a
reporter regarding allegations of sexual harassment lodged against appellant
approximately two years earlier when she was the Township Administrator for
Buena Vista Township. Cabrera received a copy of the complaint from the
reporter via fax and, while reading through the complaint in appellant's
presence, told appellant that "this does not look good for the agency" and "[t]his
is not . . . good for you and . . . your perspective (sic) employment." Appellant
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stated that Cabrera also told her that "the State Legislative Committee is still
investigating . . . [a rape] allegation from the prior Chief of Staff [who] left
under a scandal and this does not look good for the agency."
Appellant then provided Cabrera with a copy of the settlement agreement,
as well as a letter from her accuser to the Township and to the Division of Civil
Rights withdrawing his sexual harassment complaint. Cabrera acknowledged
the settlement, but she emphasized the agreement did not specifically release
appellant. Appellant stated that "although . . . [Cabrera] was sympathetic with
my situation[,]" Cabrera informed her that "the perception of those documents
. . . leaves [her] open to public judgment" and again that "this doesn't look good
for the [SDA]." Appellant responded that there was no merit to the allegations,
the Township Committee did not ask her to resign or step down, she was not
fired, and she did not disclose it to the SDA because she "didn't think it was
even relevant because none of that even happened here."
Eventually, the SDA Chief of Staff joined the meeting and left with
Cabrera to discuss the situation outside of appellant's presence. Appellant was
then instructed to go home and was informed that they would "deal with this
tomorrow" as it was the end of the day and Cabrera and the Chief of Staff were
"going to be [there] for a while."
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The following day, appellant went to work in the morning but received a
phone call about a water-related emergency in her basement. She returned to
her home around 10:30 a.m. and received a call from Cabrera who informed her
that the reporter was going to "release the story [about] you in the next hour or
so." Appellant responded that she was in "an emergency situation and [she]
cannot deal with this situation at all" and that "[t]his has nothing to do with my
role at the SDA." She further informed Cabrera that she "[didn't] have ti me for
this at all[,]" that she resigned effective immediately, and then "hung up and sent
an email" confirming her resignation.1
When asked by the hearing officer whether she left her position due to
conditions of the job or because "this issue had now followed [her] to this job
and that was just too much to have to deal with[,]" appellant confirmed that it
was the latter. She specifically stated that "[i]t's a big accusation and I just
couldn't deal with that" as she was "under too much pressure and . . . didn't want
to be subject . . . to an investigation." She concluded that "[i]t was already . . .
an embarrassment[,] a humilitation[,] and [she] just couldn't [live through it
again]."
1
A copy of the email is not contained in the record.
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After resigning, appellant filed a claim for unemployment benefits on
February 10, 2019. The Deputy of the Division of Unemployment and Disability
Insurance (Deputy) denied appellant's application and imposed a
disqualification for benefits "on the ground that the claimant left work
voluntarily without good cause attributable to the work." Appellant appealed
that determination to the Appeal Tribunal on March 14, 2019 and participated
in a telephonic hearing. The SDA did not participate in the hearing.
In its April 9, 2019 written decision, the Appeal Tribunal first found that
appellant resigned because "she did not want to have to deal with the harassment
situation all over again[,]" but that she "was under no threat of imminent
termination at the time she resigned." In upholding the determination of the
Deputy, it noted that while it understood her decision to leave, "her reason for
leaving was personal and unrelated to the work itself" as she "had no issues with
the actual job, yet she left because the old harassment issue had come back."
The Appeal Tribunal concluded that based on appellant's testimony, she "could
have been working any job at that time, yet she would have left because that old
issue resurfaced." Consequently, it reached the same conclusion as the Deputy
that appellant was disqualified from unemployment benefits as she "left work
voluntarily, without good cause attributable to the work."
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Appellant filed a timely appeal of the April 9, 2019 Appeal Tribunal
determination with the Board. In its June 3, 2019 decision, the Board, after
reviewing the record, first determined that there was no valid ground for an
additional hearing as appellant "was given a full and impartial hearing and a
complete opportunity to offer any and all evidence" and affirmed the decision
of the Appeal Tribunal. This appeal followed.
Our review of an administrative agency decision is limited. 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 [we]
would come to the same conclusion if the original determination was [ours] 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)). "If the Board's factual findings are supported 'by sufficient credible
evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of
Review, 91 N.J. 453, 459, (1982)). We also give due regard to the agency's
credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App.
Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or
unreasonable, the agency's ruling should not be disturbed." Brady, 152 N.J. at
210.
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"The underlying purpose of the Unemployment Compensation Law 'is to
provide some income for the worker earning nothing because he is out of work
through no fault or act of his own.'" Futterman v. Bd. of Review, 421 N.J. Super.
281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady, 152 N.J. at 212).
A person is disqualified for benefits:
For the week in which the individual has left work
voluntarily without good cause attributable to such
work, and for each week thereafter until the individual
becomes reemployed and works eight weeks in
employment . . . .
[N.J.S.A. 43:21-5(a).]
An employee who leaves work voluntarily has the burden of proving that
he or she "did so with good cause attributable to work." Brady, 152 N.J. at 218;
N.J.A.C. 12:17-9.1(c). "While the statute does not define 'good cause,' our
courts have construed the statute to mean '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)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to
such work" as "a reason related directly to the individual's employment, which
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was so compelling as to give the individual no choice but to leave the
employment."
An employee who leaves work for good, but personal, reasons is not
deemed to have left work voluntarily with good cause. Brady, 152 N.J. at 213;
Self, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-8 (App.
Div. 1979). "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." Domenico, 192 N.J. Super. at 288 (quoting Medwick v. Bd.
of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "The decision to leave
employment must be compelled by real, substantial and reasonable
circumstances . . . attributable to the work." Shuster v. Bd. of Review, 396 N.J.
Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304
N.J. Super. 603, 606 (App. Div. 1997)). "[I]t is the employee's responsibility to
do what is necessary and reasonable in order to remain employed." Domenico,
192 N.J. Super. at 288.
If "an employee knows that he or she is about to be fired, the employee
may quit without becoming ineligible." Cottman v. Bd. of Review, Dep't of
Labor & Workforce Dev., & Quality Mgmt. Co., 454 N.J. Super. 166, 170 (App.
Div. 2018). Thus, "an employee need not wait to be fired when discharge is
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imminent[,]" but instead "may resign and still be eligible for benefits." Id. at
172-73. The determination of whether a worker quit in the face of being fired
calls for a fact-sensitive analysis "of all relevant factors." Utley v. Bd. of
Review, 194 N.J. 534, 548 (2008). The facts must "'indicate a strong probability
that fears about the employee's job security will in fact materialize, that serious
impending threats to [the employee's] job will be realized, and that the
employee's belief that his [or her] job is imminently threatened is well founded.'"
Shuster, 396 N.J. Super. at 245 (quoting Fernandez, 304 N.J. Super. at 606).
Guided by these legal principles, we perceive no basis to disturb the
Board's finding as appellant failed to satisfy the high threshold for establishing
imminent discharge. Rather than testifying that her discharge was a certainty,
appellant clearly stated that she resigned to avoid dealing with public scrutiny
regarding the sexual harassment complaint emanating from her prior
employment a second time. In her words, she "just couldn't deal with that[,]"
was "under too much pressure[,]" and "didn't want to be subject . . . to an
investigation" that was already embarrassing and humiliating. Appellant's
reasons for resigning may have been understandable, but they were nevertheless
personal.
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Further, the discussions appellant had with Cabrera did not include
language that could reasonably be interpreted as a "very strong likelihood of
imminent discharge." See Shuster, 396 N.J. Super at 247. Although Cabrera
expressed her initial concerns as to the effect public disclosure of the prior
harassment complaint would have on the SDA, appellant and her prospective
employment, Cabrera did not state that appellant would be fired, she needed to
resign, or that she needed to start looking for another job.
To the extent appellant argues that she was expected to resign because the
former SDA Chief of Staff resigned when confronted with a rape allegation,
such an assumption on the current record is "[m]ere speculation . . . insufficient
to establish good cause[,]" see Fernandez, 304 N.J. Super. at 606, particularly
considering appellant advised Cabrera that the Township Committee did not ask
her to resign, she was not fired, and rather than being accused of a serious crime,
her accuser withdrew the sexual harassment complaint. We also note that
appellant resigned before learning the results of the meeting Cabrera had with
the Chief of Staff the night before and only after she learned a reporter would
publish the fact that she was the subject of a prior harassment complaint.
In sum, we are satisfied that the determination that appellant left work
voluntarily without good cause attributable to the work is amply supported by
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substantial credible evidence in the record as a whole, and is not arbitrary,
capricious, or unreasonable.
To the extent we have not specifically addressed any of appellant's
arguments, it is because we consider them sufficiently without merit to require
discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
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