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Dennery v. Board of Review


April 12, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 199,069.

Per curiam.


Submitted March 16, 2010

Before Judges Fuentes and Gilroy.

Amy Marie Dennery appeals from the denial of her application for unemployment compensation benefits. The Board found that appellant resigned from her position voluntarily, without good cause attributable to her work. We affirm.

Appellant began working at the Coddington Adjustment Company on January 22, 2008. Her duties included interacting with clients on the phone and general clerical work. On August 1, 2008, appellant received a telephone call from a client concerning a problem she was unable to resolve by herself. When she walked the client's file to the desk of her employer Champ Coddington, he advised her that she had given him the wrong the file and said: "get [your] ass up out of the chair and get me the damn file now." Appellant responded "excuse me?", walked back to her desk, and did not bring the correct file to Mr. Coddington. According to appellant, Coddington then walked to her work station, leaned over her desk, and again screamed: "get [your] ass up out of [the] chair and get me the damn file now." Based both on this incident, and on the "continuous harassment that [she] was receiving," appellant decided to resign from her job.

In support of her application for unemployment benefits, appellant testified that Coddington was "notorious" for this type of demeaning conduct. She claimed to have spoken to Coddington on several prior occasions about the way he treated her and about a sign posted above his desk that read: "Sexual harassment is allowed in this office." As indicative of Coddington's sexually inappropriate conduct, appellant testified that one time when she leaned over his desk, Coddington asked: "if those were for him", an apparent lascivious reference to her breasts.

In his testimony before the Appeals Tribunal Coddington admitted to yelling to appellant: "Get off your ass and get me the right file." He did so, however, only after appellant refused his first appropriately worded request to bring the correct file. He denied repeating the inappropriate remark, lunging or physically menacing appellant in any way, or making any sexually inappropriate remark at any other time. He acknowledged, however, that his inappropriate remark was unprofessional and apologized to appellant.

As to appellant's job performance, he described her as "a wonderful girl" with a tendency of being hypersensitive to professional criticism, especially when the criticism involved her dealings with clients on the telephone. With respect to the sign above his desk that read "Sexual harassment is allowed in this office," Coddington testified that the sign was given to him by all of the female staff members in the office before appellant began working there and it had been hanging over his desk for over ten years.

Finally, Coddington testified that appellant had notified him that her husband had recently secured employment in North Carolina and had moved to that state ahead of her with the anticipation that she would relocate soon thereafter. Appellant agreed to stay at Coddington for as long as it took to train her replacement.

The Appeals Tribunal found Coddington acted in an unprofessional manner in his response to appellant's refusal to bring the correct file. The Tribunal also found that appellant had no right to refuse to comply with her employer's first properly worded request. As a matter of credibility, the Tribunal rejected appellant's testimony concerning previous incidents of sexual harassment. Based on these findings, the Tribunal concluded that appellant had voluntarily resigned from her position without good cause attributable to the work. N.J.S.A. 43:21-5(a). The Board adopted the Tribunal's findings and affirmed.

Our capacity to review decisions of an administrative agency is limited. Shuster v. Bd. of Review, 396 N.J. Super. 240, 245 (App. Div. 2007). As long as "'substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result.'" Brady v. Board of Review, 152 N.J. 197, 210 (1997) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). The agency's determination should only be reversed if it is "'arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Shuster, supra, 396 N.J. Super. at 246 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Here, we agree with the Board's characterization of Coddington's response to appellant's refusal to bring the correct file as unprofessional. The fact that Coddington may have been angered by appellant's insubordination gives him no license to behave in such a boorish manner. We are also extremely troubled by the facially offensive message inscribed in the sign hanging over Coddington's desk. The fact that the sign was given to him by female staffers in an alleged attempt at sarcasm or ironic humor does not mitigate its potential for undermining the seriousness of sexual harassment in the workplace. Appellant had the right to view the sign as a lack of respect for the law against sexual discrimination.

That being said, we discern no legal basis to overturn the Board's decision. In reaching this conclusion, we are particularly mindful that appellant had advised her employer of her decision to relocate to North Carolina before the August 1, 2008 incident.



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