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Castellucci v. Board of Review

Decided: May 21, 1979.

DIANA G. CASTELLUCCI, PLAINTIFF-APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND XEROX CORPORATION, DEFENDANTS-RESPONDENTS



On appeal from New Jersey Department of Labor and Industry, Board of Review.

Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

In this matter in which the appeal is from a determination of the Board of Review (Board), Department of Labor and Industry, affirming a decision of the Appeal Tribunal holding her disqualified for benefits and liable for a refund, claimant's appeal to us was filed more than 45 days after the final decision of the Board. It is out of time. R. 2:4-1(b). No party raises this issue and in this matter, in which that is only the last of a series of irregularities, we are inclined to relax the rule within the limitations of R. 2:4-4(a) on our own motion. We would only add that the averment of the claimant in her notice of appeal that she was appealing from a "decision * * * dated April 29, 1977" changes neither the fact that the decision was actually dated April 19, 1977 or that the appeal was tardy.

Claimant's testimony before the Appeal Tribunal reports that she was first employed in the Xerox Corporation (Xerox) offices at Pennsauken as a personnel coordinator on August 4, 1975. On her first "review" at the end of eight months -- she advises that standard operating procedure required a review after six months -- her supervisor told her, "I was not doing a good job and that I wasn't doing enough work and that I was worthless." According to claimant, on the next four consecutive work days she was berated, confronted with "another person who knew nothing about my work" who also said she "wasn't doing a good job," and embarrassed. Each time she "got upset * * * and went home." Later testimony from her supervisor confirmed a "normal" five-day review involving four individual meetings, agreed that claimant was advised of the need for "improvement in performance level, and based upon that, there would be some type of formal counseling." He denied calling claimant offensive names and denied making derogatory

statements except for the "normal review" criticism of her work. In her testimony in this later hearing, claimant conceded that the criticism was levelled in her office with the door shut.

There also appears from claimant's testimony evidence that her supervisor took exception to her social relationship with a coemployee. The supervisor conceded this concern, testifying that such relationships with any potential for conflict of interest were contrary to company policy, and that since claimant was the personnel coordinator as well as his secretary, that potential existed.

It appears undisputed that the following week claimant simply did not return to work. Apparently her last day of work was March 29, 1976.

The record before us indicates that on April 4, 1976 she applied for unemployment compensation. During that month a deputy in the local claims office held claimant disqualified for benefits on the ground that she left work voluntarily without good cause attributable to such work. Claimant appealed, apparently within time, on April 28, 1976. A hearing before an examiner for the Appeal Tribunal eventuated on June 23, 1976, at which only claimant and her counsel appeared. Her counsel concluded the presentation with a summation which ended with reference to harassment by the supervisor, "[w]ho, of course," counsel observed, "hasn't seen fit to show up today and contradict any testimony here."

By a decision dated June 24, 1976 and said to have been mailed June 28, 1976, the Appeal Tribunal reversed the earlier decision, holding that claimant did in fact have good cause attributable to her work for leaving her job. It remanded the matter to the deputy for a determination of the period of eligibility.

On July 27, 1976 a letter was dispatched from the Personnel Manager for Eastern Area Distribution at the Mid-Atlantic Region Headquarters of Xerox to the Division of Unemployment and Disability Insurance, Appeal Tribunal, advising that "the first notification we received of [the

Castellucci] claim was a copy of the final decision forwarded to our office from the Princeton Branch on ...


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