SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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v. BOARD OF REVIEW, DEPARTMENT OF LA BOR and MCLOONE'S WEST ORANGE, LLC , Respondents.

________________________________

Submitted November 28 , 2018

– Decided Before Judges Koblitz and Mayer. On appeal from the Board of Review, Department of Labor and Work force 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, Assista nt Attorney General, of counsel; Christopher W. Weber, Deputy Attorney General, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 opi nion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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December 17, 20182 A

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- 17T2 R espondent McLoone's West Orange LLC , has not fi le d a brief.
PER CURIAM Petitioner Sabrina Medina appeals from a final agency decision of respondent Board of Review (Board) , disqualifying her from receipt of unempl oyment benefits

. We reverse

. Medina work ed 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 manage r sta ted she was unsure Medina could be trusted with workplace information. The general manager also

su ggested Medina act "bitchier " and " cuntier" to gain respect in the male dominated restaurant business. When Medina complained to McLoone's executive ch ef about the general manager's harassing conduct, the chef responded that the general manager "does not do well with other women."3 A

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A round the same time, May 2016, McLoone's had a s ewage back up in the
restaurant , causing unsafe conditions and potential he alth 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 m anagement expressed disappointment in Medina's decision to forego working based on the resta urant'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 . M edina 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 applie d 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 work4 A

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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 fo und Medina never filed any formal complaints regarding her treatment by superiors at McLoone's prior to her r esignation. 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 und er the statute." In disqualifying Medina from receipt of benefits, the examine r 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 te stimony presented to be abnormal or to have affected [Medina's] health [

. ] . . . [Medina] has an5 A

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cont rary 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 qualif ied for benefits. Our review of an administrative agency's final decision is limited. In re Stal l worth , 208 N.J. 182, 194 (201 1). 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 a n 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 could6 A

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reasonably so conclude upon the proofs." Brady v. B d. of Review , 152 N.J. 197, 210 (1997). We owe considerable deference to the Board in administering our state's unemployment compensation laws. Ibid. N evertheless, based on the discrete facts in this case, we conclude the agency misapplied the releva nt 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. 1 983)). "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, 58 7 (App. Di v. 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 be7 A

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compelled b y real, substantial and reasonable circumstance s not imaginary, trifling and whimsical ones." Brady , 152 N.J. at 214 ( quoting Domenico , 192 N.J. Super. at 288). Acts constituting h arassment, racial prejudice, a nd gender bias " directed
t o 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 hara ssment 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 " cu ntier" 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 excl usion 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 t he credible and uncontroverted evidence presente d by Medina during the hearing . Medina left8 A

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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 c ircumstances that were real and not imaginary

. In addition to the abnormal conditions she endured while working at McLoone's, Medina told the appeal s examiner her health had been adversely affec ted. Medina presented un controverted testimony that she beca me 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 u nemployment 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

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Medina complain ed to McLoone's executive chef about the new general
manager and her discriminatory, harassing, and retaliatory con duct. In addition , Medina filed a civil action against McLoone's , alleging discrimination and retaliation

. Having reviewed the record, w e are satisfied Medina left her job under the "pressure of circumstances which may reasonably be viewed as having [bee n] compelled " by McLoone's discriminatory conduct and other adverse conditions of the job. Brady , 152 N.J. at 212

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. W e reverse the Board's determination summarily affirming the decision of the Appeal Tribunal and

rem and the matter to the Board to deter mine 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

.