NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 SHAWN WASHINGTON, v. Appellant, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR, and RELATED MANAGEMENT, CO., LLP, Respondents. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Argued January 21, 2016 Decided February 3, 2016 PER CURIAM Before Judges Haas and Manahan. On appeal from the Board of Review, Department of Labor, Docket No Sarah Hymowitz argued the cause for appellant (Legal Services of New Jersey, Inc., attorneys; Ms. Hymowitz, of counsel and on the brief; Melville D. Miller and Anisa Rahim, on the brief). Christopher M. Kurek, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Kurek, on the brief). Shawn Washington appeals from a denial of unemployment benefits by the Board of Review (Board). We reverse.

2 We discern the following from the record of the hearing. Washington was the only witness. Washington was employed by Related Management Company (RMC) as a property manager for an apartment complex from September 24, 2012 until July 31, Washington earned $50,000 per year plus commission and bonuses. On January 9, 2013, between 9:00 a.m. and 10:00 a.m., Washington was sexually assaulted by a male resident while she was in her temporary office located in the Community Lounge. The assault occurred after she admitted the resident into the office. As she turned to answer the telephone, the resident walked up behind her and grabbed her while he had an erection. Washington called the police but was advised they could not arrest her assailant since she did not sustain physical injury. Nonetheless, Washington pressed criminal charges. The criminal case was later dismissed when the defendant failed to appear at a court proceeding, as his mother had him committed to a mental facility. Washington informed RMC about the incident and expressed her concern with working alone. At the time of the assault, RMC was renovating the property, which was to include an upgrade in security. Based upon the incident, as well as other concerns of prior criminal activity, Washington requested that RMC install a panic button in her office. RMC agreed to install the panic 2

3 button but, some six months after the assault when Washington gave notice of her intent to resign, no installation had occurred. Notwithstanding Washington's security concerns with her continued employment at RMC, she did not have the time or opportunity to search for other employment due to her work hours which averaged seventy hours per week. Washington was motivated to remain on the job by her concern that she would be unable to find other employment which, as a single parent, she required to support herself and her children. On May 17, 2013, Washington was involved in a car accident which required her to take a medical leave of absence. She was released by her doctor to return to work on June 29, Washington orally informed her supervisor of her decision to resign from RMC on June 30, 2013, and it was mutually agreed that her last day would be July 31, Washington informed her supervisor that her decision to leave was because she felt uncomfortable working there due to the assault. Notably, Washington never returned to the job location after her disability leave ended. Upon termination of her employment with RMC, Washington received severance. During the hearing before the appeals examiner, Washington acknowledged that had the assault not occurred, she did not know 3

4 if she would have continued her employment, but it was the "straw that broke the camel's back." The acknowledgment was in the context that the police were regularly on the property prior to the assault due to various incidents. On October 27, 2013, Washington filed a claim for unemployment benefits. A determination of the Deputy Director (Deputy) of the Division of Unemployment and Disability Insurance (Division), found Washington disqualified for benefits after July 28, 2013, on the ground that she left work voluntarily without good cause attributable to the work. Washington appealed the Deputy's determination to the Appeal Tribunal (Tribunal). After a telephone hearing was conducted, the Tribunal issued a decision holding that Washington was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. Thereafter, Washington appealed the decision of the Tribunal to the Board. On July 17, 2014, the Board affirmed the decision of the Tribunal and held Washington disqualified for benefits under N.J.S.A. 43:21-5(a). This appeal followed. 1 1 Notably, RMC, despite notice and opportunity, did not participate in the unemployment appeal process and has not filed a brief on appeal. 4

5 The Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to , 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). Our decision is guided by fundamental principles of law governing unemployment compensation. The Act is designed primarily to lessen the impact of unemployment that befalls workers without their fault. Brady v. Bd. of Review, 152 N.J. 197, 212 (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 compensation law is "remedial in nature... [and] 5

6 must be liberally construed in light of [its] beneficent purposes...." Teichler v. Curtiss-Wright Corp., 24 N.J. 585, 592 (1957); see also Meaney v. Bd. of Review, 151 N.J. Super. 295, 300 (App. Div. 1977). Our scope of review is limited. We are bound to affirm the Board's determination if reasonably based on proofs. Brady, supra, 152 N.J. at 210. "'[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: We have held that "threats of physical violence directed to an employee from which he may reasonably conclude 6

7 that his personal safety is endangered thereby inculcating a genuine fear in the employee is an abnormal working condition. As such, it constitutes good cause for that employee to voluntarily leave his employment." Condo v. Bd. of Review, 158 N.J. Super. 172, 175 (App. Div. 1978). "An employee cannot reasonably be expected to stay on the job where such threats of physical violence have been made to him." Ibid.; accord Domenico v. Bd. of Review, 192 N.J. Super. 284, 289 (App. Div. 1983); see Doering v. Bd. of Review, 203 N.J. Super. 241, 246 (App. Div. 1985). Here, both parties argue Condo and Domenico are controlling but adopt different postures concerning their applicability. Washington argues that similar to those cases, she was subjected to an actual threat to her personal safety by the sexual assault and the fear of further threats due to lack of security, her working alone, and the ongoing illegal activity on the premises. The Board argues that the safety threats Washington claims motivated her resignation were not of the same type and manner that we found in Condo and Domenico. We disagree. In essence, the Tribunal disqualified Washington not on the basis of whether the sexual assault occurred, but rather on the basis that she did not resign until six months after the assault. As such, the Tribunal found, explicitly or implicitly, 7

8 that Washington could not have been reasonably concerned as to justify her resignation decision. At the outset, we conclude that the Tribunal's finding ignores the uncontroverted testimony of Washington, whose credibility has not been challenged. Washington testified that after the assault she "stuck it out" due to financial concerns even though she felt uncomfortable working at RMC. Also, as noted, after her automobile accident, she never returned to work at RMC. Her last "physical" day on the job was May 17, 2013; not six months after the assault as utilized as the timeframe by the Tribunal. Further, having complained to RMC after the assault about the lack of security, RMC assured Washington it would remedy the situation including hiring a co-worker, but took no remedial steps. Washington was not required to make continuous complaints. In Condo, the claimant complained to his manager about his coworker'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. Condo, supra, 158 N.J. Super. 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

9 In Brady, the Court interpreted "good cause" for leaving employment as "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Brady, supra, 152 N.J. at 214. 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). Here, the Tribunal's findings of fact as adopted by the Board noted: The claimant left her job on [July 31, 2013,] because she had been assaulted on the job. The assault took place on [January 9, 2013]. On [January 9, 2013], the claimant was assaulted by a resident of the property where the claimant worked. The claimant did not sustain any physical injury as a result of the assault. However, the claimant has not felt safe working for the employer since the assault. The claimant has not sought counseling. The claimant asked the employer to install a panic button in the office where the claimant worked. The employer approved the installation but never installed the panic button prior to the claimant leaving her job. After considering the testimony from the hearing, we conclude that Washington resigned from her employment with RMC 9

10 for good cause attributable to the work. Washington legitimately believed that the work environment was unsafe. Given the assault, her belief was premised in fact and was not "imaginary, trifling, and whimsical[.]" Domenico, supra, 192 N.J. Super. at 288. In sum, Washington left her employment out of a genuine and reasonable concern for her personal safety and subsequent to RMC's failure to take reasonable and promised steps to ensure her safety. The Board has the "authority to engage in a plenary, de novo review of the evidentiary record; i.e., to make findings 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) (alteration in original). 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 Washington, we hold the Board acted arbitrarily and capriciously. Reversed and remanded for a determination of benefits. We do not retain jurisdiction. 10