On appeal from the Board of Review, Department of Labor, Docket No. 270,652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2011
Before Judges Fisher and Baxter.
Renee Silva claims the Board of Review erred in disqualifying her from collecting unemployment benefits, arguing that she left her employment with good cause attributable to the work. Silva claimed she was berated in front of her co-workers and threatened by the employer with physical violence. In deferring to the agency's view of the facts, which varies in degree from Silva's, we reject her arguments and affirm.
Silva was a dental assistant and receptionist employed by Monokian Family & Cosmetic Dentistry, LLC, from April 2001 until January 14, 2010, when she resigned. At the conclusion of an evidentiary hearing, the appeal tribunal found that, on January 7, 2010, the employer approached Silva and two other receptionists and "announced . . . that 'one of you is a thief.'" Silva immediately stood up and denied she was a thief. The employer responded that he was not accusing her specifically but, taking a page from Queen Gertrude's book -- although less elegantly -- asserted that "the way you're acting, it's like you're guilty." See, e.g., William Shakespeare, Hamlet act 3, sc. 2 ("the lady doth protest too much, methinks"). Later that day, according to the appeal tribunal, the employer spoke with Silva, asserting "that he was not accusing her specifically, and . . . that she was not a primary suspect as she lacked the ability to access the technology that was utilized to steal the money."
In addition, the appeal tribunal found that on January 11, 2010, when the employer advised Silva that one of the other receptionists had been placed on leave as a result of the missing money, Silva sought an apology. The appeal tribunal determined that the employer responded that "he did not do anything wrong, but was sorry if he said anything to offend her." Silva also then complained that she had not received a Christmas bonus. According to the appeal tribunal, the checks arrived to the employer's office at a time when Silva was absent from work and her check was left in the employer's desk drawer. When Silva mentioned the matter and asserted that "she did not understand why a thief would get the Christmas bonus, when she did not," the employer located the check "and apologized for not giving it to her earlier." The appeal tribunal found that Silva responded "that she was not sure whether she was going to cash it because she might be quitting."
Lastly, the appeal tribunal made the following findings regarding what Silva has argued here to be an assault or threat of violence: "At one point prior to leaving, [Silva] spoke with the owner's wife, who worked for the company, and at one point she took hold of [Silva's] wrist. [Silva] informed her to take her hands off of her."
In light of these findings, the appeal tribunal concluded that Silva was not entitled to unemployment benefits because she terminated her employment "voluntarily without good cause attributable to" the work. N.J.S.A. 43:21-5(a). The Board of Review agreed with that decision and affirmed.
In appealing, Silva contends that the Board of Review's final agency decision violates the public policies underlying the unemployment benefits laws, and that the "berating [of] an employee before peers" and "threaten[ing] violence" constitutes good cause for a voluntary quit that would render Silva eligible for unemployment benefits. We find insufficient merit in these arguments to warrant discussion in a written opinion and affirm.
R. 2:11-3(e)(1)(E). We add only the following brief comments. Our standard of review requires that we defer to an agency's findings of fact when supported by the record, as well as the agency's expertise, and will intervene in such matters only when a determination offends constitutional or statutory policies or is otherwise arbitrary, capricious, or unreasonable. Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 360 (2009); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The findings to which we are bound, because they are supported by evidence in the record, reveal that the words spoken by the employer, upon which Silva bases her claim that she was "berat[ed] before [her] peers," in fact were spoken to a group of three of which she was a member. Thus, her claim that she was berated in front of other colleagues is simply not accurate and the sting of the employer's accusation greatly lessened. It is true, as Silva argues, that an employee is under no duty to remain employed in a work environment that is hostile and degrading, but the employer's comments, as found by the agency, approached nowhere near the level of improper conduct that would justify her leaving the ranks of employment. Accord Doering v. Bd. of Review, 203 N.J. Super. 241, 247 (App. Div. 1985) (finding good cause for voluntarily leaving the workplace where the employer, among other things: made suggestions he was having an affair with the claimant; made other sexual connotations; made a sexual advance; and, on one occasion, "placed his hands around [the claimant's] waist and caressed her breasts").
It is also true, as Silva argues, that good cause may arise when the employee is subjected to physical abuse or threats of violence. We have held, however, that not every undesired touching will justify a finding of good cause. Instead, as Judge Michels said for the court in Condo v. Board of Review, 158 N.J. Super. 172, 175 (App. Div. 1978), "threats of physical violence directed to an employee from which he may reasonably conclude that his personal safety is endangered thereby inculcating a genuine fear in the employee is an abnormal working condition [that] constitutes good cause for that employee to voluntarily leave his employment." Here, the agency found only that a superior grabbed and held Silva's wrist but removed her hand immediately upon Silva's objection. This event did not permit a finding that Silva was placed in "genuine fear" or could reasonably have believed her personal safety was endangered. Ibid. Although we certainly agree that the employer inappropriately touched Silva, we do not view this minor incident as supporting a claim of good cause for Silva's resignation.