                                NOT FOR PUBLICATION WITHOUT THE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 opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0324-17T4

CAROLINE MYLETT,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
and CARYN MAX
SALON WEST, LLC,

     Respondents.
_____________________________

                    Submitted January 29, 2019 – Decided February 8, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the Board of Review, Department of
                    Labor and Workforce Development, Docket No.
                    119,229.

                    Caroline Mylett, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Shareef M.
                    Omar, Deputy Attorney General, on the brief).
            Respondent Caryn Max Salon, LLC, has not filed a
            brief.

PER CURIAM

      Claimant appeals from the August 4, 2017 final decision of the Board of

Review (Board) disqualifying her from receiving unemployment benefits after

finding she left work voluntarily without good cause attributable to her work.

Because the Board's factual findings were not supported by substantial credible

evidence, and the Board overlooked contrary evidence, we reverse.

      Our review of administrative agency decisions is limited. In re Stallworth,

208 N.J. 182, 194 (2011). We will not reverse an agency's decision unless it is

arbitrary, capricious, or unreasonable.    Ibid.   Agency action is arbitrary,

capricious, and unreasonable if the record does not contain substantial credible

evidence to support the findings on which the agency based its decision. Ibid.

Additionally, when "an agency 'overlook[s] or undervaluat[es] . . . crucial

evidence,' a reviewing court may set aside the agency's decision." Cottman v.

Bd. of Review, 454 N.J. Super. 166, 171 (App. Div. 2018) (alterations in

original) (quoting Trantino v. N.J. State Parole Bd., 166 N.J. 113, 192 (2001)).

      We "must also give due regard to the opportunity of the one who heard

the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J.

Super. 346, 348 (App. Div. 1997).      The Board has "the authority to make

                                                                         A-0324-17T4
                                       2
different credibility assessments" than the Tribunal "where the record is open to

competing interpretations." Messick v. Bd. of Review, 420 N.J. Super. 321, 330

(App. Div. 2011). We recognize, however, that if the Board did not hear the

evidence directly, it is "in a poor position to determine the credibility of the

claimant." Logan, 299 N.J. Super. at 348.

      New Jersey's Unemployment Compensation Law disqualifies a person

from receiving unemployment benefits if he or she "left work voluntarily

without good cause attributable to such work." N.J.S.A. 43:21-5(a). The phrase

"good cause attributable to such work" is defined as "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). "The test of

'ordinary common sense and prudence' must be utilized to determine whether an

employee's decision to leave work constitutes good cause." Brady v. Bd. of

Review, 152 N.J. 197, 214 (1997) (quoting Zielenski v. Bd. of Review, 85 N.J.

Super. 46, 52 (App. Div. 1964)). The employee bears the burden of proof to

establish good cause. Id. at 218; N.J.A.C. 12:17-9.1(c).

      N.J.S.A. 43:21-5(a) "protects not only workers who are involuntarily

unemployed—those who are laid-off or terminated from their jobs by their

employers—but also those who voluntarily quit their jobs for good cause


                                                                          A-0324-17T4
                                        3
attributable to their work." Utley v. Bd. of Review, Dep't of Labor, 194 N.J.

534, 543-44 (2008).      Because an employee "has the 'responsibility to do

whatever is necessary and reasonable in order to remain employed.[,]'" ibid.

(quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)),

however, the employee's decision to quit "'must be compelled by real,

substantial and reasonable circumstances not imaginary, trifling, and whimsical

ones.'" Ibid. (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 288

(App. Div. 1983)).

      If "an employee knows that he or she is about to be fired, the employee

may quit without becoming ineligible." Cottman, 454 N.J. Super. at 170. Thus,

"an employee need not wait to be fired when discharge is imminent[,]" but

instead "may resign and still be eligible for benefits." Id. at 172-73. The

determination of whether a worker quit in the face of being fired calls for a fact-

sensitive analysis "of all relevant factors . . . ." Utley, 194 N.J. at 548. The facts

must "'indicate a strong probability that fears about the employee's job security

will in fact materialize, that serious impending threats to [the employee 's] job

will be realized, and that the employee's belief that his [or her] job is imminently

threatened is well founded.'" Shuster v. Bd. of Review, 396 N.J. Super. 240,




                                                                              A-0324-17T4
                                          4
245 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603,

606 (App. Div. 1997)).

      Appellant worked as a bookkeeper for Caryn Max Salon West, LLC, from

April 20, 2011, through April 5, 2017. 1 On Tuesday March 28, 2017, Caryn

Procaccini, the owner of the salon, held a staff meeting to institute a new "gossip

policy" because she perceived "negativity in the salon." The following day,

another employee gave claimant an eyebrow service, during which they

discussed the new gossip policy and also discussed a client who was not happy

with the services she received. Unbeknownst to them, Procaccini listened to

their conversation from the other side of a closed door, and believed that they

violated the new gossip policy.

      When the eyebrow service concluded, Procaccini approached claimant

and told her that she wanted to meet with her, but the two were unable to meet

that day.   Claimant testified that when she arrived at work the following

Monday, "everything," including her desk and other "stuff," was cleared out,

and her file cabinets were locked. Claimant did her usual payroll work that day.




1
  The number of "inaudible" notations in the transcript makes it hard to discern
the testimony and hinders our review.


                                                                           A-0324-17T4
                                        5
      Claimant and Procaccini finally met on the morning of Wednesday April

5, 2017. Procaccini began by asking claimant numerous questions, including

what work she still needed to finish that week, how much the salon paid for its

cleaning service, and how to access files on the computer. Fearing that she was

going to be fired "any minute," claimant quit. Procaccini then produced a letter

of resignation and asked appellant to sign it, but claimant refused. Claimant

testified that she later learned that Procaccini had already hired a new

bookkeeper who started the same day that claimant separated from her

employment.

      Procaccini testified that claimant was required to clock out and get a

manager's approval before getting any "personal service", which she did not do.

Procaccini also said that she overheard claimant discussing the staff meeting and

new gossip policy while getting her eyebrows treatment, which Procaccini

believed violated the new gossip policy.

      Procaccini admitted that she cleared out the office that she shared with

claimant. She said that she had cleaned out the office previously, but later

clarified that although she swept it out "occasionally," she never before "did a

detail of it" like she did on this occasion. She denied purposely removing the

desktop icons on claimant's computer, claiming that she "backed up" claimant's


                                                                         A-0324-17T4
                                       6
computer and the files were inadvertently minimized. She also explained that

she locked the file cabinets containing employee personnel files because sh e did

not want anyone else to have access to her employees' personal information, and

that she had requested that claimant do so in the past.

      Procaccini said she asked claimant questions about bookkeeping,

computer passwords, and company procedures when they met because she had

to "protect [her]self" in case claimant quit. Procaccini insisted that she hired the

new employee as a receptionist before claimant separated from employment, and

"low and behold" the new employee had some background in bookkeepin g and

"took over right away." Procaccini maintained that she did not fire claimant and

that claimant quit voluntarily.

      On June 13, 2017, the Appeal Tribunal (Tribunal) concluded that claimant

was entitled to unemployment benefits because she did not leave her job

voluntarily without good cause attributable to the work under N.J.S.A. 43:21 -

5(a). Instead, it found that Procaccini's actions supported claimant's belief that

"her discharge was imminent" and claimant "resigned in lieu of imminent

discharge."    The Tribunal relied on Procaccini "requesting operational

information" from claimant, as well as Procaccini's actions removing claimant's

desktop from her computer, locking the file cabinets, and "box[ing] other


                                                                            A-0324-17T4
                                         7
documents used by [claimant] to perform her duties." The Tribunal also found

that claimant did not intend to violate the no gossip policy, that any violation

was not deliberate, wanton, or willful, and that claimant therefore was not

disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(b)

due to employee misconduct. Because no disqualifications applied, the Tribunal

determined that claimant was entitled to receive unemployment benefits.

      On August 4, 2017, the Board reversed the Tribunal's decision. The Board

did not make any credibility determinations.        The Board, however, felt

"compelled to rewrite the Findings of Fact as those of the Appeal Tribunal do

not reflect the record." Specifically, the Board made the following factual

findings:

            [Claimant] was upset with the owner, who had asked
            her some questions about the files and payroll. The
            owner was not disrespectful toward [claimant]. The
            owner had cleaned the office, including [claimant]'s
            desk, prior to April 3, 2017. She did not remove the
            desktop that [appellant] was using or [claimant]'s
            belongings. The owner locked the personnel files,
            because they had confidential information. The owner
            intended to meet with [claimant] on April 5, 2017 to
            discuss with her the gossip policy.          However,
            [appellant] resigned before she had the opportunity to
            do so. [Claimant]'s job was not in jeopardy at the time
            of her separation.




                                                                        A-0324-17T4
                                       8
Based on those findings, the Board concluded that claimant left work voluntarily

without good cause attributable to the work and was therefore disqualified from

receiving unemployment benefits under N.J.S.A. 43:21-5(a).2

         On appeal, claimant argues that the Board did not base its findings on

substantial credible evidence in the record and ignored contrary evidence. We

agree.

         The Board's conclusion that claimant's job was not in jeopardy at the time

she quit was based on factual findings that were not supported by the record.

For instance, the Board found that Procaccini cleaned the office, including

claimant's desk, prior to April 3, 2017. Although Procaccini said that she had

cleaned the office in the past, she later clarified that she would "sweep it out

occasionally," but admitted that she never, as she put it, "did a detail" like she

did in this instance. There was no testimony that Procaccini had ever cleaned

claimant's desk or locked the filing cabinets previously. The Board also found

that Procaccini did not remove the "desktop" from claimant's computer, but

Procaccini acknowledged that she inadvertently "minimized" the icons on

claimant's desktop when she "backed up" claimant's computer.


2
  The Board agreed with the Tribunal that claimant was not disqualified from
receiving unemployment benefits for employee misconduct related to violating
company policy under N.J.S.A. 43:21-5(b).
                                                                           A-0324-17T4
                                          9
      More significantly, the Board found that Procaccini intended to meet with

claimant on April 5, 2017, but that claimant "resigned before she had the

opportunity to do so." Both parties testified, however, that they met on April 5,

and that Procaccini asked claimant a series of questions about claimant 's

remaining work, bookkeeping, computer passwords, and company procedures.

It was at that point that claimant, fearing she was going to be fired "any minute"

based on Procaccini's questioning, quit her position. The Board's finding that

claimant resigned before the meeting was not supported by the evidence in the

record.

      The Board also either overlooked or underappreciated evidence in the

record supporting claimant's claim.      The Board did not consider that once

claimant announced that she was quitting, Procaccini produced a pre-written

letter of resignation and asked her to sign it. It also did not consider that a new

receptionist/bookkeeper started work the same day claimant quit, which we have

recognized is evidence indicating "imminent layoff or discharge[.]" Shuster,

396 N.J. Super. at 247.

      Because the Board did not base its findings on substantial credible

evidence in the record and overlooked contrary evidence in reaching its

conclusions, its decision was arbitrary, capricious, and unreasonable.


                                                                           A-0324-17T4
                                       10
Accordingly, we reverse the final decision of the Board, and remand the case to

the Division of Unemployment and Disability Insurance to determine the

amount of unemployment compensation benefits owed to claimant.

      Reversed and remanded. We do not retain jurisdiction.




                                                                       A-0324-17T4
                                     11
