Opinion
DOCKET NO. A-0101-13T3
03-13-2015
COURTNEY WENZEL, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and PRECISION MARBLE, INC., Respondents.
Courtney Wenzel, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). Respondent Precision Marble, Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Board of Review, Department of Labor, Docket No. 410,775. Courtney Wenzel, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). Respondent Precision Marble, Inc. has not filed a brief. PER CURIAM
Unemployment compensation claimant Courtney Wenzel appeals from the Board of Review's July 26, 2013, order, affirming the Appeal Tribunal's February 22, 2013, decision denying her benefits on the ground that she voluntarily left her job at Precision Marble, Inc. (PMI) without good cause attributable to the work. We remand for further findings of fact.
I.
Wenzel claimed that she left work because she was a victim of sexual harassment by PMI's owner, Michael Gaviria, and others at her workplace. She was initially employed as a receptionist. She testified that Gaviria called her "princess." Gaviria often made comments about her appearance and attire to her and to other men in the workplace. He invited male workers from other locations to look at Wenzel. Wenzel alleged he repeatedly would say such things as, "[L]ook . . . at what I get to look at every day when I come in[,]" or "Look at . . . her at reception." She testified that he told her she should wear skirts or dresses to work. After she became pregnant, he told her that she better wear certain dresses while she could, and that she was "not going to keep [her] . . . looks now."
He text-messaged her at home, late at night, about personal matters. He made suggestive comments, while referring to Wenzel's fiancé and co-worker, Jeremy Larsen. "He would . . . ask me to leave my fiancé at home so he could take me to dinner, ask to leave work to go to lunch at somewhere called the Loveshack." She said he told her "he wanted to take me on vacation to Florida with him and get me drunk . . . ." She asserted that Gaviria had extra-marital affairs with other female employees in the workplace.
The appeals examiner sua sponte prohibited Wenzel from questioning Gaviria about the subject, stating it was irrelevant to her claim.
Larsen testified that Gaviria made a lewd gesture behind Wenzel's back, visible to others and, accidentally, to him. When Wenzel was pregnant, Gaviria reportedly made a comment to Larsen that "it would be nice to . . . have intercourse with a pregnant woman." Larsen overheard Gaviria comment about Wenzel's figure. Larsen confirmed Wenzel's testimony that Gaviria sent non-professional texts to Wenzel at night. He testified that he complained to PMI operations manager Chris Hankins about comments made concerning Wenzel by PMI's outside landscaper.
Wenzel testified that she attempted, with no success, to address the issue through her immediate female supervisors. She testified that she spoke to one supervisor, Shannon Chapman, on almost a daily basis. Chapman allegedly agreed the behavior was inappropriate, but would do nothing, stating "that's just how [Gaviria] is." Another supervisor, Heather Paulson-Sousou, refused to listen, saying if she did, she would then be obliged "to do something about [it]." Wenzel said she did not confront Gaviria about her concerns because he was her boss. She had no copies of written complaints because, she said, there was no formal process for complaints, and no employee handbook. She stated that since she was reporting the harassment to management, "shouldn't management have documented it." She also trusted her manager "to then take the next steps to . . . correct the problem." In response to the appeals examiner's question, she explained she did not resign sooner than she did because she needed the job, and she felt protected by Larsen's presence.
Eventually, Larsen broached the issue of Wenzel's treatment directly with Gaviria. Toward the end of a meeting about other grievances, Larsen said, "I brought up that I also, you know, was going to [be] marrying Courtney and I felt that, you know, the inappropriate behavior towards . . . my soon to be wife needed to stop." In response, Gaviria started cursing and told him, using vulgar language, to get out of his company.
Wenzel resigned the same day. She explained that once her fiancé was terminated, she no longer felt safe or comfortable in the workplace.
Gaviria denied that he engaged in sexual harassment. He denied making comments such as, "This is what I have to look at every day," or telling Wenzel what she should wear. But, he apparently admitted commenting on her looks, stating, "if you want to call it harassing everybody around here about how beautiful she is, and oh, look at her today."
Gaviria did not directly deny suggesting to Wenzel that she allow him to get her drunk.
EXAMINER: Did you ever suggest that you should go to another trip to Florida?
[GAVIRIA]: No.
EXAMINER: To get drunk [INAUDIBLE] . . .
[GAVIRIA]: They would never go.
According to Gaviria, it was Wenzel and Larsen who asked him to take them to lunch and dinner. Regarding the use of "princess" as a nickname, Gaviria said he used nicknames for many of his employees, although he stated that he called all men "Gus." He initially testified that Wenzel had asked him to call her "Princess," but he refused, stating it was "a little bit unprofessional." When confronted on cross-examination that Wenzel had preserved text messages from him, Gaviria admitted that he used "Princess," but "not in front of people."
Gaviria testified that he viewed intimate videos of Wenzel, but blamed Larsen, and appeared to argue that Larsen's alleged actions somehow reflected Wenzel's tolerance, if not encouragement, of injecting her sexuality into workplace communications. He referred to a three-day trip he took to Florida with Larsen, Hankins, and other male friends. Wenzel was not present. Gaviria testified, "[T]he only sexual harassment . . . if you could call it that, was on this trip." Gaviria alleged that several times during the trip, Wenzel sent videos of herself to Larsen, and Larsen "continue[d] to show [them to] me and my guys." Gaviria testified, "[R]ight then we knew something was wrong"; however, he testified only Hankins refused to view the videos.
Hankins confirmed that Gaviria viewed the videos, and he did not. Hankins asserted that Larsen described the videos, and Hankins provided alleged details to substantiate the incident. Wenzel denied sending any videos, and Larsen denied receiving or sharing them. Hankins also testified that Larsen complained to him about being treated unfairly, but did not report the alleged sexual harassment of Wenzel.
As for Larsen's termination, Gaviria admitted that he fired him once he raised concerns on behalf of Wenzel. Although he stated that he had previously warned Larsen about excessive use of his company phone, the precipitating cause of the firing was Larsen's advocacy. The appeals examiner asked Gaviria why he fired Larsen, and Gaviria gave the following response, which we quote in its entirety (the ellipses below are in the transcript):
Because two days prior he was warned about a . . . a . . . his phone bill that I . . . that I showed him that all day long constantly, every day he was texting his . . . Courtney, which was on the floor below, all day long which I . . . which I forwarded to you guys. So, you should have that report . . . constantly, all day long. This . . . this man is possessive, and he was warned about that, and warned about not sticking up for her or bring up situations of Courtney that this is a business environment and you're not here as a team. You're here as individuals. If she has a problem with anything let her come up and discuss it, and again, we were speaking about the . . . the . . . the phone statement, and he keeps bringing his fiancé into the situation. . .
. . . .
It just . . . it just got out of . . .
. . . .
I don't . . . just that she's not being fair treat . . . or . . . or we were . . . we're not being tre . . . treated fairly, and I kept saying stop this "we" stuff. If you have an issue, you talk to me. If she has an issue, she needs to talk to me and it just got escalated out of hand, and I asked him to leave . . . .
Chapman also testified. She denied that Wenzel ever spoke to her about sexual harassment, and stated she never overheard Gaviria make any of the comments Wenzel alleged Gaviria made.
In finding that Wenzel had left work voluntarily, without good cause attributable to the work, the appeals examiner made the following findings:
The claimant worked for the above-named employer, as a sales worker, from 9/12 through 12/13/12. The owner had a habit of using nicknames on the job for workers. The owner had a habit of taking workers to lunch and/or dinner for business. The owner also took workers on bonus trips. The owner took the claimant and her fiancé/co-worker on a trip and to lunch/dinner. The owner sent text messages to the claimant using nicknames for invites to lunch and/or dinner and trips. The claimant did not like the texts, nicknames or invites. The claimant made no grievance about what she did not like to the owner. The employer issued the fiancé a reprimand. The fiancé met with the owner who further reprimanded the fiancé about his phone bill. The fiancé then accused the owner of harassing the claimant. The owner fired the fiancé and the claimant then resigned.
. . . .
In this case, the claimant maintains that she was harassed on the job. The owner treated the claimant and her fiancé to meals and trips. The owner did this to reward the claimant and her fiancé for their work. The trips and meals were awarded to other co-workers on the job and were not uncommon. The nicknames were also common on the job. The claimant's contention therefore that nicknames and invites for trips/meals were an act of deception [sic] is without merit. The claimant never confronted the owner with any allegation of harassment. The claimant would not have quit had her fiancé not been fired. What this supports is that the nicknames and invites for trips/meals were harmless. Notwithstanding the fiancé did not confront the owner with those issues until the reprimands were issued. No evidence of any grievance prior to then rejects the claimant's and the fiancé's testimony of harassment. The Appeal
Tribunal therefore holds that the claimant quit based on her and her fiancé's unfounded allegation. The claimant is disqualified for benefits under N.J.S.A. 43:21-5(a) as of 12/9/12, as the claimant left work voluntarily without good cause attributable to such work.
In her administrative appeal, Wenzel asked the Board to consider additional evidence, including screen-shots of two text messages from Gaviria in which he called Wenzel "princess." One of the texts was sent at 9:53 p.m., and stated, "It [sic - apparently should be "I"] was there . . . you stood me up." She also provided a screen shot of a text Gaviria sent to her, after she resigned, stating he was surprised she left, and stating "it would be nice" if she stayed. She responded, "of late there have been situations which have made me very uncomfortable both personally and in regard to other matters taking place within the company." She also provided a certification of excerpts from conversations with Chapman and Paulson-Sousou.
In its decision, the Board stated that it reviewed Wenzel's appeal "on the record below" and "agree[d] with the decision reached" by the Tribunal. Without expressly noting whether it had considered Wenzel's additional evidence, the Board stated, ambiguously, that it "has not been presented with any evidence that would overturn the decision of the Appeal Tribunal."
Wenzel appeals and principally argues that the Board's decision lacked sufficient and credible evidence in the record; and that the sexual harassment, and Gaviria's retaliation against Larsen constituted good cause attributable to work for Wenzel's resignation.
II.
We recognize that our scope of review is limited. We are bound to affirm the Board's determination if reasonably based on the proofs. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997 ). "'[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 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)). We may disturb a Board of Review decision if we determine that the record does not "contain[] substantial evidence to support the findings on which the agency based its action . . . ." Id. at 211 (internal quotation marks and citation omitted). "Courts are not to act simply as a rubber-stamp of an agency's decision where it is not supported by substantial, credible evidence in the record as a whole . . . ." Philadelphia Newspapers, Inc. v. Bd. of Review, 397 N.J. Super. 309, 318 (App. Div. 2007), certif. denied, 195 N.J. 420 (2008).
In particular, in order to warrant our deference, the agency must provide sufficient factual findings. "[P]arties and the court are entitled to know the precise factual basis upon which the result has been reached" by an administrative agency. Cunningham v. Dep't of Civil Serv., 69 N.J. 13, 26 (1975). It is not enough to provide factual conclusions that merely reiterate governing law and do not disclose their basis in the record. Id. at 26-27. See also Perez v. Pantasote, Inc., 95 N.J. 105, 118-19 (1984) (stating that "an administrative agency acting quasi-judicially must set forth basic findings of fact, supported by the evidence and supporting the ultimate conclusions and final determination") (internal quotation marks and citation omitted).
"[W]e insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). See also Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 63 (App. Div.) (stating that an agency must provide its reasons "with particularity"), certif. denied, 162 N.J. 196 (1999). On the other hand, we do not invariably require a fact-finder to provide "detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations" if the credibility findings can be inferred from the decision. State v. Locurto, 157 N.J. 463, 472, 475 (1999) (affirming municipal court findings).
The Board exercises de novo review on the record of Tribunal decisions. Ryan v. Brown, 279 N.J. Super. 648, 651 (App. Div. 1995). On the other hand, pursuant to N.J.S.A. 43:21-6(e), the Board may also take additional evidence. Ryan, supra, 279 N.J. Super. at 651. See also Charles Headwear, Inc. v. Bd. of Review, 11 N.J. Super. 321, 328 (App. Div. 1951). That includes evidence pertaining to facts that arose after the termination of employment, or the filing of the original claim. Ludwigsen v. N.J. Dep't of Labor & Indus., 12 N.J. 64, 70 (1953); Charles Headwear, supra, 11 N.J. Super. at 328-29. Consistent with an agency's obligation to provide sufficient reasons, the Board is obliged to set forth its reasons for refusing to consider evidence proffered for the first time on appeal.
III.
Applying these principles, we remand for additional fact-finding by the Board. The Board's decision, which incorporates the Tribunal's findings, fails to address and determine significant factual disputes, does not apparently consider significant admissions by Gaviria, and mischaracterizes Wenzel's complaint as simply pertaining to dinner invitations and the use of nicknames.
As a threshold matter, the Board should clearly state whether it considered the supplementary evidence that Wenzel submitted. On one hand, the Board stated it denied benefits based on the record before the Tribunal; on the other hand, it stated that Wenzel did not submit evidence that would change the result. If the Board declined to consider the evidence, it should provide reasons. If the Board considered the evidence, it should state why the Board viewed it as insignificant, particular inasmuch as it tended to substantiate Wenzel's claim that Gaviria sent non-business text-messages late at night.
Turning to the evidence in support of Wenzel's claim, the Board placed substantial reliance on the adopted finding that Wenzel never complained to Gaviria. The finding is problematic for two reasons. First, Wenzel never alleged that she complained to Gaviria before resigning. She asserted she complained to Chapman and Paulson-Sousou. We recognize that Chapman, who remained in Gaviria's employ and testified in his presence, denied Wenzel's claim. However, the Board did not make a finding as to that disputed issue.
We do not interpret the following findings by the Tribunal to refer to Wenzel's claim she complained to Chapman and Paulson-Sousou: "Notwithstanding the fiancé did not confront the owner with those issues until the reprimands were issued. No evidence of any grievance prior to then rejects the claimant's and the fiancé's testimony of harassment." It appears the second sentence refers to a grievance by Larsen, not Wenzel. In any event, the sentence lacks support in the record, because Larsen testified he complained to Hankins.
Second, it would have been unreasonable to impose upon Wenzel a duty to complain to Gaviria — who was both the alleged offender and her boss — and to draw a negative inference from her lack of complaints to him. We have held that the failure to complain "may be relevant and probative on the bona fides" of a claim. Doering v. Bd. of Review, 203 N.J. Super. 241, 248 (App. Div. 1985). See also Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 379-80 (App. Div. 2002) (stating whether an employee has resorted to internal grievance procedures is a relevant factor in determining whether harassment has created an intolerable situation that compelled an employee to transfer).
However, the failure to complain "certainly does not in and of itself disqualify [a claimant] from receiving benefits nor does it prove that the reason she quit was not sufficient to constitute 'good cause attributable to such work'". Doering, supra, 203 N.J. Super. at 248-49. Furthermore, an effective grievance procedure does not require a complaining employee to seek relief or redress directly from a supervisor who allegedly participates in the wrongful conduct. See, e.g., Taylor v. Metzger, 152 N.J. 490, 515 n.3 (1998) (stating it was not reasonable to expect employee to complain to the supervisor who allegedly engaged in wrongful behavior).
The Board also mischaracterizes and minimizes the nature of Wenzel's claim. The Tribunal's finding, which the Board adopted, addresses Wenzel's allegations regarding the invitations to meals and trips, and the use of nicknames. The Tribunal found that the use of nicknames and invitations "were harmless" — partly because Wenzel "would not have quit had her fiancé not been fired," and she never complained to Gaviria.
First, the finding that the nickname and invitations were "harmless" does not address the sexual nature of the invitations, and the obvious connotations of the nickname that Gaviria used. Wenzel did not simply allege that her boss invited her to lunch; she alleged he invited her to lunch at the "Loveshack" with obvious connotations. She alleged he invited her to Florida not simply as a reward, which was provided to other employees, but so he could get her drunk. Gaviria implausibly contended that Wenzel asked him to call her "princess," first testifying he refused, but, when confronted, stating he only called her "princess" privately.
Second, the Board failed to make findings regarding the other alleged acts of sexual harassment. Wenzel alleged that Gaviria made repeated and unwelcome remarks about her physical appearance; her attire; and her pregnancy. She alleged that Gaviria made a vulgar movement behind her back. Although the appeals examiner blocked questioning about Gaviria's alleged affairs with other employees, Wenzel's allegation supported her claim that Gaviria's comments were not harmless compliments.
The Board also did not address the allegations regarding intimate videos. Even if one credits Gaviria's and Hankins's testimony, there is no evidence that Wenzel was aware or intended that her videos would be disclosed, or that she welcomed such attention. If it occurred, the incident demonstrates a monumentally poor exercise of judgment by Larsen. But, more importantly, it demonstrates Gaviria's own prurient interest in Wenzel. In contrast to his operations manager, Gaviria testified he willingly viewed the videos.
The Board also does not justify why Wenzel's resignation in the wake of Larsen's firing undermines her claim. The Board apparently found that Wenzel quit her job simply out of solidarity with her fiancé. However, an equally or more plausible explanation is that Wenzel realized there would be no relief from the sexual harassment, once the owner of the company admittedly fired Larsen because he advocated for Wenzel. She was not obliged to continue to expose herself to sexual harassment. Moreover, an employee may have mixed motives for quitting. "An individual who leaves work for several reasons, one of which constitutes good cause attributable to such work, shall not be disqualified for benefits." N.J.A.C. 12:17-9.1.
The ultimate issue for the Board is whether Wenzel had good cause attributable to her work for quitting. Mere dissatisfaction with the conditions of employment does not suffice, Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997), but if such conditions were unlawful, it would. Sanchez v. Bd. of Review, 206 N.J. Super. 617, 621 (App. Div. 1986).
Harassment may qualify as good cause, but it must be sufficiently severe to justify a person's abandonment of their employment. "Intentional harassment of an employee . . . is an abnormal working condition and constitutes good cause for leaving work voluntarily." Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 587, 589 (App. Div. 1974) (affirming award of benefits where supervisor continuously harassed and mistreated the claimant, and frequently called her at home to scold her). We have approved benefits where a claimant was subject to sexual harassment and racially prejudicial and gender-biased comments. Doering, supra, 203 N.J. Super. at 246. On the other hand, "on-the-job reprimands" even if "public and arguably improper and humiliating" did not justify a voluntary quit. Gerber v. Bd. of Review, 313 N.J. Super. 37, 40 (App. Div. 1998).
Neither in Associated Utility Services nor Doering did we hold that harassment that is sufficient to satisfy the "good cause" standard under N.J.S.A. 43:21-5, must also satisfy the prerequisites for sexual harassment under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The two tests are obviously different. "For example, if a supervisor is equally crude and vulgar to all employees, regardless of their sex, no basis exists for a sex harassment claim," Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 604 (1993). On the other hand, oppressively crude and vulgar remarks may create such an intolerable environment as to create good cause for quitting under N.J.S.A. 43:21-5.
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We remand to the Board for more specific findings regarding the critical factual disputes in this case. See, e.g. In re Issuance of Permit by Dep't of Envt'l Prot., 120 N.J. 164, 173 (1990) ("When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency."). As we are remanding the matter, the Board should reconsider its conclusion in light of those additional findings, and the admissions the employer made. The Board should also consider admitting supplementary proofs. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION