KENDRA D. BROWN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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-3863-15T4

KENDRA D. BROWN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR, and ALLIEDBARTON
SECURITY SERVICES,

Respondents.
_______________________________

Submitted January 16, 2018 – Decided June 13, 2018

Before Judges Ostrer and Whipple.

On appeal from the Board of Review, Department
of Labor, Docket No. 072,656.

Kendra D. Brown, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Adam K. Phelps, Deputy Attorney
General, on the brief).

Respondent AlliedBarton Security Services has
not filed a brief.

PER CURIAM
 Claimant Kendra D. Brown appeals from the March 24, 2016

decision of the Board of Review (Board) disqualifying her from

receiving unemployment benefits under N.J.S.A. 43:21-5(a) because

she left her job voluntarily and without good cause attributable

to work. We affirm.

Claimant was employed by AlliedBarton Security Services

(AlliedBarton) as a security officer from September 2012 through

September 2015, when she left her employment. AlliedBarton

contracts to provide security for companies nationwide, including

in New Jersey. Claimant was specifically hired to work at Fidessa,

a site in Somerset, New Jersey; she worked an overnight shift from

6:00 p.m. to 12:00 a.m.

In June 2015, claimant requested a transfer to a different

job site at Horizon, in Ewing, New Jersey, where she believed she

could receive full-time employment at a higher pay rate. The

handbook detailing the policies and procedures followed by

AlliedBarton, which was given to claimant when she was hired,

provided that the company would make all efforts to accommodate

transfer requests, but they were not guaranteed.

On July 1, 2015, claimant met with AlliedBarton's Regional

Director of Human Resources, Jeanette Whitman-Lee, who told

claimant because she was hired for a particular position at a

particular site, her current position at Fidessa would first have

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to be filled. After that position was filled, she would be placed

in the "reassignment pool" and would be considered for any open

positions. In the meantime, she was not prohibited from applying

to and interviewing with the recruiters at any job sites where she

wished to be transferred.

Later that week, claimant met with the field operations

manager in charge of Fidessa, Salvatore Cifone. He informed

claimant he was not approving any transfers until he filled all

currently open positions because that would inconvenience Fidessa.

Claimant became upset, informed him that she was recording their

conversation, and asserted that he was blocking her transfer

because of a personal issue with her. Cifone assured her that his

reasons were solely business related. That same month, he put in

a job requisition to begin the process of filling claimant's

position at Fidessa so that she might transfer.

Thereafter, claimant spoke on the phone to the field

operations manager for Horizon. However, she did not formally

apply or request an interview for this job site.

At the end of July 2015, claimant filed civil rights

complaints against AlliedBarton with the Equal Employment

Opportunity Commission. She alleged discrimination due to an

underlying medical condition and retaliation, asserting other

employees had been allowed to transfer to new job sites.

3 A-3863-15T4
 On August 20, 2015, Cifone informally reprimanded claimant

for trading shifts with another security officer without notifying

him as required by AlliedBarton policies and procedures. Again,

claimant became upset, arguing Cifone had a personal issue with

her.

On or around August 24, 2015, AlliedBarton hired a new

security guard to fill claimant's position. However, when the new

guard arrived at work, claimant initially refused to train her,

complained she had not been notified in advance, and did not

believe the new guard had the authorization to be on Fidessa

property. Cifone claimed he had tried to notify claimant in

advance, but she did not answer the phone and did not have

voicemail. It was only after an argument with Cifone that claimant

agreed to train the new guard.

On August 26, 2015, claimant sent an email to Cifone

requesting to see her employee file, which he forwarded to human

resources. Human resources agreed to accommodate this request,

but on August 28, claimant withdrew her request to see the file.

That same week, Cifone conducted a site inspection and noticed

claimant was not in the correct uniform required by Fidessa. Her

uniform shirt was too large, requiring her to wear layers under

it, and she was wearing the wrong pants, shoes, and earrings.

4 A-3863-15T4
 On August 31, 2015, Cifone emailed claimant telling her she

was removed from Fidessa and instructed her not to report for her

shift. He also informed her she should contact him so they could

sit down and "discuss the events that transpired last week," but

she never reached out.

On September 3, 2015, Whitman-Lee sent claimant a letter via

email and regular mail, informing her she needed to speak with her

about her performance issues before claimant would be able to

return to work. Whitman-Lee asked that this meeting take place

before September 11, 2015.

From that point on, claimant refused to schedule a meeting

with AlliedBarton, despite repeated attempts to contact her.

Claimant asserted it would have been a conflict because of the

civil rights complaint, and she wanted to have a third party

present at any meeting. AlliedBarton repeatedly told claimant

third parties were not allowed in employer-employee meetings,

unless they were a designated union representative.

Claimant filed for unemployment benefits, effective as of

August 30, 2015. On October 14, 2015, the Deputy of the Division

of Unemployment and Disability Insurance (Deputy) concluded that

she was disqualified from benefits because her actions were

"evidence of [her] intention to sever the employer-employee

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relationship." Therefore, he determined claimant had left her job

voluntarily and without good cause.

Claimant appealed the decision of the Deputy to the Appeal

Tribunal (Tribunal), and a hearing was held on November 18, 2015.

After hearing testimony from claimant, Whitman-Lee, and Cifone,

the Tribunal found the AlliedBarton representatives provided

credible and compelling testimony and the evidence at the hearing

established the actions of the company were in accordance with its

established policies and procedures. Further, the evidence

supported AlliedBarton's position that the "performance issues"

the employer wanted to discuss were justifiably tied to violations

of policy claimant did in fact commit and not the result of a

personal vendetta. Thus, claimant was disqualified because she

voluntarily left work, was not subjected to hostile working

conditions, and did not make reasonable attempts to remain

employed. Accordingly, the Tribunal affirmed the Deputy's

decision.

Claimant appealed the Tribunal's decision to the Board of

Review (Board). On March 24, 2016, the Board affirmed1 the

1
However, the Board modified the decision to provide that the
disqualification ended as of January 2, 2016, because claimant had
gained employment at which she had worked eight weeks and earned
"at least ten times the individual's weekly benefit rate."
N.J.S.A. 43:21-5(a).

6 A-3863-15T4
decision of the Tribunal, reasoning claimant had received a full

and impartial hearing and there were no grounds for further review.

This appeal followed.

On appeal, claimant argues her decision not to meet with

human resources without a third party present, as well as her

civil rights complaint and various other personal commitments,

constitute good cause attributable to work preventing her

disqualification. We disagree.

We exercise "a limited role" in the review of administrative

agency decisions. In re Stallworth, 208 N.J. 182, 194 (2011)

(citation omitted). "In order to reverse an agency's judgment,

an appellate court must find the agency's decision to be

'arbitrary, capricious, or unreasonable, or not supported by

substantial credible evidence in the record as a whole.'" Ibid.

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Lastly, a "strong presumption of reasonableness attaches to the

actions of the administrative agencies." In re Carroll, 339 N.J.

Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J.

Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)).

A reviewing court is limited to determining:

(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based

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 its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.

[Mazza v. Bd. of Trustees, 143 N.J. 22, 25
(1995) (citing Campbell v. Dep't of Civil
Serv., 39 N.J. 556, 562 (1963)).]

Moreover, we do not substitute our own judgment for the

agency's, even though we might have reached a different result.

In re Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J.

474, 483 (2007)).

Under N.J.S.A. 43:21-5(a), an individual is disqualified for

benefits "[f]or 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

. . . ." "Claimants bear the burden of proof to establish their

right to unemployment benefits." Brady v. Bd. of Review, 152 N.J.

197, 218 (1997) (citing Zielenski v. Bd. of Review, 85 N.J. Super.

46, 51 (App. Div. 1964) and DiMicele v. General Motors Corp., 51

N.J. Super. 167, 171 (App. Div. 1958), aff'd, 29 N.J. 427 (1959)).

"Furthermore, when an employee leaves work voluntarily, [she]

bears the burden to prove [she] did so with good cause attributable

to work." Ibid. (citations omitted).

Here, claimant left her job voluntarily. AlliedBarton did

not formally discharge her from employment. She had initiated a

8 A-3863-15T4
job transfer request, and at that time, it was explained to her

that the process involved her position being filled, being placed

into the reassignment pool, and then applying for the desired

position.

Moreover, although she was instructed not to return to Fidessa

on August 31, 2015, she was still considered an employee under the

AlliedBarton policies and procedures. The AlliedBarton employee

handbook provides, "[w]hen an employee's assignment or post ends,

he or she is still employed by AlliedBarton[.]" Furthermore, an

employee's repeated refusal of future offers of work assignments

"will constitute [a] voluntary resignation." Also, "[t]hirty

consecutive days of inactive work status and/or lack of [a]

response regarding new assignments will be considered [a]

voluntary resignation." As such, claimant must show her voluntary

resignation was due to good cause attributable to work.

Although good cause is not statutorily defined, "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 (2016) (quoting Domenico v. Board 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'

9 A-3863-15T4
for leaving work voluntarily." Associated Util. Servs., Inc. v.

Bd. of Review, 131 N.J. Super. 584, 587 (App. Div. 1974) (citations

omitted). "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 (citation omitted). Furthermore, the decision

to leave employment "must be compelled by real, substantial and

reasonable circumstances not imaginary, trifling and whimsical

ones." Brady, 152 N.J. at 214 (citation omitted).

"[S]exual harassment, racially prejudicial and gender biased

comments, and threats of physical violence 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) (citations

omitted); see Associated Util. Servs., 131 N.J. Super. at 587.

However, claims of this nature must be supported by sufficient,

credible evidence. Gerber v. Bd. of Review, 313 N.J. Super. 37,

39-40 (App. Div. 1998). Claimant submitted no evidence beyond

hearsay statements, allegedly made by a third party, to support

her assertions that AlliedBarton discriminated against her because

of her medical condition or retaliated against her for filing a

civil rights complaint.

The Tribunal found Whitman-Lee and Cifone, the witnesses for

AlliedBarton, to be credible. Further, the Tribunal found the

10 A-3863-15T4
evidence supported that AlliedBarton's actions were in accordance

with its policies and procedures, and the actions taken were in

response to genuine performance issues related to violations of

policy by claimant. We find no basis to disturb the findings of

the Tribunal, as relied upon by the Board.

Accordingly, the Board correctly determined that claimant was

disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-

5(a). The Tribunal's determination, adopted by the Board, that

claimant left work voluntarily without good cause attributable to

the work is supported by substantial credible evidence in the

record as a whole and is not arbitrary, capricious, or

unreasonable.

Affirmed.

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