NOT FOR PUBLICATION WITHOUT THE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-2667-15T4
JAMIELYN GERARD,
Appellant,
v.
BOARD OF REVIEW and
SURFACE SOURCE
INTERNATIONAL, INC.,
Respondents.
——————————————————————————
Argued August 8, 2017 – Decided September 12, 2017
Before Judges Hoffman and Currier.
On appeal from the Board of Review, Department
of Labor, Docket No. 021,548.
Michael DiChiara argued the cause for
appellant (Krakower DiChiara, LLC, attorneys;
Mr. DiChiara, on the briefs).
Peter H. Jenkins, Deputy Attorney General,
argued the cause for respondent Board of
Review (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Mr.
Jenkins, on the brief).
Respondent Surface International, Inc., has
not filed a brief.
PER CURIAM
Claimant Jamielyn Gerard appeals from the February 8, 2016
final agency decision of the Board of Review (Board), rejecting
her claim for unemployment benefits. Claimant worked as an
administrative assistant for Surface Source International, Inc.
(SSI) from February 2008 until she sent an email resigning in
April 2014. Claimant argues she had good cause to quit her job
because her coworker continuously harassed her for over three
years, and SSI failed to take effective steps to stop the
harassment. We agree and reverse.
I.
Claimant filed for unemployment benefits on April 20, 2014.
On July 13, 2014, a Deputy Director (Deputy) of the Division of
Unemployment and Disability Insurance Services determined claimant
disqualified for benefits on the ground she left work voluntarily
without good cause attributable to the work.
Claimant appealed the Deputy's determination, and the Appeal
Tribunal (Tribunal) held a hearing on July 10, 2014. Claimant
testified that about a year into her employment, she found her
"manager hooking up with the warehouse manager." After she
confronted her manager about it, the warehouse manager "started
having this vendetta against" her.
He would call me names; everything from, "Mama
Gorda, you bitch, you . . . [.]" Many verbal
names; anything he could say to hurt me. He
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was commenting on the type of clothes I was
wearing, the type of underwear I had on. He
. . . stole personal property out of my desk,
he vandalized my desk. He physically harassed
me[.] [H]e touched me from behind, he had
grabbed me. We . . . got into a physical
altercation where he took me and slammed me
into his desk.
Claimant further stated, "I was not physically injured, but
yes . . . I did hurt." She did not call the police because her
bosses "assured" her "that something like this would never happen
again." She added that she did not file a police report "out of
fear." Claimant said this happened "about three years ago." When
she previously reported the warehouse manager touching her
buttocks, her manager replied, "[T]hat's just how he is."
Claimant explained, "I went to . . . my boss and my manager,
I explained what had happened, I was very upset, I was crying."
Her bosses said their lawyers recommended installing "security
cameras," but they never followed this advice. One of her bosses
told her the warehouse manager "was warned, and if he did anything
to me again[,] he would be fired."
According to claimant, the warehouse manager continued to
call her names, especially "Mama Gorda." He would swear at her,
"just anything that hurts." She further testified, "And he has
done so much things to me, and I have continuously met with them
and spoke with them and told them all this, and . . . they never
did anything to help the situation." SSI's owner told her "that
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the devil he knows is better than the devil he doesn't know . . .
even though he was harassing me and tormenting me."
Claimant further explained,
. . . I was so stressed from all of this that
my health was deteriorating. I saw seven
doctors in the past year, and I've spent like
hundreds of dollars in co-pays because of all
this stress, and my boss was accusing me of
forging doctor's notes. And with all this
happening I just needed to . . . take my health
seriously[.] I was tired of being harassed,
and so I resigned.
Claimant's symptoms included stomach problems, chest pain, and
trouble sleeping; she saw various doctors, including a
pulmonologist, a cardiologist, and a gastroenterologist. "[T]hey
found nothing, and . . . all said that it was the stress from
work."
By April 2014, claimant "was tired of being harassed," so she
sent SSI's owner an email resigning, effective immediately. She
did not quit earlier because she "really" liked the position;
"[i]t's just every time [the warehouse manager] would do something
to me[,] and I would have a meeting with them, . . . they would
assure me that things were gonna get better, and they would for a
couple weeks, and then it would just start back up again." She
also explained that "it's hard to find work these days."
Claimant's manager was the employee representative during the
hearing. She agreed claimant had reported the warehouse manager
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physically and verbally harassed her. She said that "we would go
to him, and he'd say he didn't do anything;" however, after the
warehouse manager slammed claimant into his desk, "we had him sign
a written warning for violence in the workplace." Additionally,
"we offered the hidden cameras," but claimant "insisted that that
was not necessary." She also testified that she verbally reviewed
SSI's harassment policy with her employees, but she did not post
any of the information at the facility nor did SSI have an employee
handbook.
SSI's owner testified that he met with claimant after the
warehouse manager slammed her into his desk, and he issued the
warehouse manager a written warning that SSI would fire him "if
there is any violence in the workplace" again. The owner also
said claimant told him that she did not want him to install any
cameras because "she felt uncomfortable with cameras." The owner
claimed he did not know of any other incidents involving claimant
and the warehouse manager. "[T]he only issues that were ever
brought up to my attention were that [claimant] does not . . . get
along with [the warehouse manager]. It was never brought to my
attention that somebody saw something. It was never brought to
my attention that there was further touching of any kind." He
said he offered to pay for claimant's internet at home, so she
could work there, but claimed she declined the offer.
5 A-2667-15T4
The Tribunal accepted the testimony of claimant's manager and
SSI's owner, and consequently found that "claimant never presented
any issues or concerns to management after" they issued the
warehouse manager a written warning about workplace violence. The
Tribunal therefore concluded that claimant was "disqualified for
benefits . . . , under [N.J.S.A.] 43:21-5(a), as she left work
voluntarily without good cause attributable to such work."
Claimant appealed and the Board remanded because "a complete and
audible record of the hearing [was] not available for review."
The Tribunal held another hearing, and received testimony
generally consistent with the first hearing; however, one new
detail emerged. Claimant testified she had a meeting with her
manager and SSI's owner in January 2014. At the meeting, she told
them that the warehouse "always" made her "feel unsafe," and "it
was getting worse." The owner then asked her "if . . . something
would cause this behavior," apparently suggesting claimant may be
doing something to elicit the warehouse manager's conduct. The
owner told claimant she worked in "a small office and . . . needed
to be able to deal with it." When claimant tried to express that
she should not "have to work in an uncomfortable environment," the
owner told her "to get over it and accept it." After this meeting,
claimant said the warehouse manager continued to harass claimant
"physically, mentally, sexually, and verbally." She recalled,
6 A-2667-15T4
One day he'd be making cat calls and whistling
at me, continuing to comment on how I looked,
making sexually inappropriate comments, the
next day calling me horrible names and
verbally harassing me. . . . He stole things
out of my desk.
Claimant told her manager, but "she did nothing."
At some point thereafter, the warehouse manager "poured
[something on the] side of [her] desk so that it would smell
. . . . [H]e got caught . . . [and] had to pay a cleaning service
to remove the smell and was fired." However, soon thereafter, SSI
inexplicably rehired him, and told claimant "he won't do anything
to you again." She told them that she "felt unsafe around him,"
but "they didn't really ask [her] opinion." Claimant testified
the warehouse manager resumed harassing her until she resigned.
At this hearing, claimant also explained that "Mama Gorda" meant
"fat mama."
SSI's owner testified that he scheduled the January 2014
meeting because other employees were asking whether "everything
was okay" with claimant. The owner said, "[W]e sat with [claimant]
to make sure that . . . she was happy[, and] we did ask, and she
said she was happy." In the next sentence, the owner qualified
this statement by noting that claimant did express that she had a
problem with the warehouse manager "whistling . . . in the
warehouse." The owner said he then spoke with the warehouse
manager, who admitted whistling, but said it was not directed at
7 A-2667-15T4
claimant. The owner said he told the warehouse manager to stop
whistling. At the close of the January 2014 meeting, the owner
said he asked claimant "to adjust her attitude and become more of
a team player[,] and we're a small operation[,] and everybody has
to get along." She told him that "she'll never get along with"
the warehouse manager. He said, "If anything else is to happen,
put it in writing and let me know."
Following this second hearing, the Tribunal found that it
could not "dispute the claimant's allegations regarding her
problems she experienced with her co-worker during her employment
period," but also noted that SSI's owner "testified . . . claimant
never presented any problems after a meeting to discuss her
attitude [in January 2014]." The Tribunal consequently found that
"there is insufficient evidence to support . . . claimant's
testimony [that SSI] failed to bring some resolution to the
matter[;] therefore, [claimant] failed to meet the burden of proof
requirement for good cause."
Claimant again appealed, and the Board remanded the claim for
a third hearing, this time for the Tribunal "to consider medical
evidence submitted by . . . claimant and to make a decision as to
whether . . . claimant's leaving was with good cause attributable
to work."
8 A-2667-15T4
The Tribunal's third hearing lasted two days, March 18, and
July 17, 2015. Claimant testified she had "horrible chest pains
and . . . headaches" while she worked for SSI; she also had
"stomach pains." She saw "a cardiologist, pulmonologist,
gastroenterologist, and general practitioners" for these symptoms.
The doctors could not find a medical explanation of her pain; her
general practitioner told her "the only potential cause was work
related stress." A social worker diagnosed her with post-
traumatic-stress disorder. The social worker also "found [her]
to be depressed . . . by [her] working conditions." After she
resigned, claimant's pain "cleared up," and she no longer had "any
health problems."
Claimant explained that she did not write her complaints down
because she would directly report to her bosses in their offices.
When she told them the warehouse manager "would do scary things
in front of" her, her bosses said they "would take care of it,"
but they never did.
Claimant's social worker also testified. The social worker
said that claimant "was depressed and overwhelmed by her working
conditions." The social worker "found her committed to her job
despite the abusive behavior by her co-worker, and not being
protected by either her manager or her employer." She said
claimant could not "tolerate the abuse" anymore, so she resigned.
9 A-2667-15T4
Her bosses' failure to stop the harassment left claimant "feeling
helpless and unprotected." She concluded that claimant did not
have "any choice but to exit the situation." She testified that
"women in these situations take a long time to get the courage to
act and often appear sudden when, in fact, it was a building
situation."
The Tribunal "acknowledged . . . claimant's former co-worker
exhibited inappropriate behavior towards her during her employment
period," but rejected "claimant's accusation that management
failed to provide some resolution regarding her concerns as
reasonable." Instead, the Tribunal found it reasonable that
"management instructed . . . claimant to submit any future concerns
or problems with her former co-worker in writing on [1/16/14].1
The claimant never presented any issues regarding the employee."
The Tribunal therefore concluded that "[t]his was a personal reason
and was not attributable to the work."
Claimant again appealed, and on February 8, 2016, the Board
affirmed the Tribunal, noting its agreement "with the decision,"
after "a full and impartial hearing and a complete opportunity to
offer any and all evidence." Claimant now appeals to this court
from the decision of the Board.
1
The opinion incorrectly set forth the date 1/16/15.
10 A-2667-15T4
II.
The Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to
-24.30, provides that an individual shall be disqualified for
benefits if "the individual has left work voluntarily without good
cause attributable to such work." N.J.S.A. 43:21-5(a). "'[G]ood
cause attributable to such work' means a reason related directly
to the individual's employment, which was so compelling as to give
the individual no choice but to leave the employment." N.J.A.C.
12:17-9.1(b). If a claimant resigned "for 'good cause attributable
to [the] work,' [s]he is eligible for benefits, but if [s]he left
for personal reasons, however compelling, [s]he is disqualified
under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544
(2008). "The burden of proof is on the claimant to establish good
cause attributable to such work for leaving." N.J.A.C. 12:17-
9.1(c).
Fundamental principles of law guide our decisions governing
unemployment compensation. The Legislature designed the Act
primarily to lessen the impact of unemployment that befalls workers
without their fault. Brady v. Bd. of Review, 152 N.J. 197, 212-
13 (1997). "The public policy behind the Act is to afford
protection against the hazards of economic insecurity due to
involuntary unemployment." Yardville Supply Co. v. Bd. of Review,
114 N.J. 371, 374 (1989) (alteration in original). Unemployment
11 A-2667-15T4
compensation law is "remedial in nature . . . [and] must be
liberally construed in light of [its] beneficent purposes."
Teichler v. Curtiss-Wright Corp., 24 N.J. 585, 592 (1957).
We exercise limited review of administrative agency
decisions. Brady, supra, 152 N.J. at 210. We are bound to affirm
the agency's determination if reasonably based on proofs. Ibid.
"'[T]he 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)). However, we may intervene if the
administrative agency's action was arbitrary, capricious, or
unreasonable, or it was "'clearly inconsistent with its statutory
mission or with other State policy.'" Ibid. (quoting George Harms
Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
"An individual shall not be disqualified for benefits for
voluntarily leaving work if he or she can establish that working
conditions are so unsafe, unhealthful, or dangerous as to
constitute good cause attributable to such work." N.J.A.C. 12:17-
9.4.
In essence, the Tribunal disqualified claimant not on the
basis of whether the harassing conduct occurred, but rather on the
basis that she did not first make a written complaint before
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resigning, notwithstanding her many verbal complaints, and did not
specifically identify her reason for resigning in her last email
to SSI.
Initially, we conclude that the Tribunal's finding ignores
the uncontroverted testimony of claimant regarding the long-term
harassment she endured. Further, claimant complained to SSI, and
received assurance that SSI would remedy the situation; however,
SSI failed to take effective remedial steps, and the harassment
continued. Instead of properly addressing the problem, SSI's
owner made a request of claimant, the victim of the harassment,
"to adjust her attitude," and to register future complaints in
writing.
Claimant was not required to make continuous complaints. In
Condo v. Bd. of Review, supra, 158 N.J. Super. 172, 173 (App. Div.
1978), the claimant complained to his manager about his co-worker's
threat of physical violence, and despite a warning, the co-worker
continued the threats. The claimant did not bring additional
complaints, which the Tribunal and Board found as a basis to deny
benefits. Id. at 173, 175. We reversed, holding that the failure
to continue to complain did not provide a valid basis to disqualify
the claimant. Id. at 175-76.
In Brady, the Court interpreted "good cause" for leaving
employment as "cause sufficient to justify an employee's
13 A-2667-15T4
voluntarily leaving the ranks of the employed and joining the
ranks of the unemployed." Brady, supra, 152 N.J. at 214 (quoting
Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div.
1983)). This court held in Domenico that good cause must be
compelled by "real, substantial and reasonable circumstances not
imaginary, trifling and whimsical ones." Domenico, supra, 192
N.J. Super. at 288. Whether an employee has good cause for
terminating their employment is viewed through the lens of
"ordinary common sense and prudence." Zielenski v. Bd. of Review,
85 N.J. Super. 46, 52 (App. Div. 1964).
After considering the testimony from the hearings, we
conclude that claimant resigned from her employment with SSI for
good cause attributable to the work. Claimant legitimately
believed that the work environment was harmful to her health.
Given the previous assault, and continuing harassment, her belief
was premised in fact and was not "imaginary, trifling, and
whimsical." Domenico, supra, 192 N.J. Super. at 288. In sum,
claimant left her employment out of a genuine and reasonable
concern for her personal health and subsequent to SSI's failure
to take reasonable and promised steps to ensure the harassment
ended.
The Board has the "authority to engage in a plenary, [de
novo] review of the evidentiary record; i.e., to make findings
14 A-2667-15T4
independent of those made on the Appeal Tribunal level, and to
conduct further evidentiary hearings." Messick v. Bd. of Review,
420 N.J. Super. 321, 326 (App. Div. 2011). Here, the Board chose
not to do so. Rather, the Board affirmed and adopted the findings
of fact of the Tribunal. In the absence of making independent
findings, the Board's conduct is measured by that of the Tribunal.
In adopting the Tribunal's findings disqualifying claimant, we
hold the Board acted arbitrarily and capriciously.
Reversed and remanded for a determination of benefits. We
do not retain jurisdiction.
15 A-2667-15T4