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Scott v. Board of Review

May 29, 2007

MICHELLE A. SCOTT, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT-RESPONDENT, AND BAY SHORE BAGELS, INC., RESPONDENT.



On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 72,644.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2007

Before Judges Kestin and Payne.

Petitioner, Michelle Scott, appeals from a final order of the Board of Review affirming the September 27, 2005 decision of the Appeal Tribunal, which found that petitioner had voluntarily left her employment with Bay Shore Bagels as a baker and counter person without good cause attributable to her work and was therefore disqualified from receipt of unemployment insurance benefits. On appeal, petitioner presents the following arguments:

Point I

IT WAS A MISTAKE OF LAW FOR THE DEPARTMENT OF LABOR TO HOLD THAT DEFAMATION DOES NOT CONSTITUTE GOOD CAUSE RELATED TO WORK TO RESIGN EMPLOYMENT.

Point II

THE FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT CLAIMANT DID NOT HAVE GOOD CAUSE TO LEAVE HER EMPLOYMENT ARE INCONSISTENT WITH THE RECORD AND COULD NOT HAVE BEEN REASONABL[Y] REACHED BASED UPON TESTIMONY AND EVIDENCE BELOW.

The record discloses that petitioner's employment ceased on March 8, 2005.*fn1 A claim for benefits was denied on April 18, 2005 on the ground that petitioner had voluntarily left her employment without good cause attributable to the work.

Following two appeals to the Board of Review on various issues, on September 26, 2005, a hearing was held before appeals examiner Marvin Bakley. Testimony was presented by petitioner, by her employer, Alison Fino, and by Fino's sister, Kimberly Wickfors, the store manager. Petitioner was represented by counsel at the hearing, which was conducted by telephone.

At the hearing, petitioner testified that on her last day of employment, she had been informed by a store customer, Denise Stolz, that approximately one month earlier, Stolz had overheard Wickfors state, in the presence of Fino and approximately nine store customers, that Wickfors believed the reason petitioner was so messed up in the head was that her father had molested her. Petitioner acknowledged that, at 9:00 a.m., when Fino entered the store, she was confronted by petitioner, "hysterically crying," but still waiting on customers. Petitioner stated that she asked Fino how the situation could be resolved, but upon petitioner's refusal to disclose who had given her the information regarding the alleged statement, Fino claimed that she could not do anything about it. When petitioner continued to cry, Fino instructed petitioner to leave. Construing the instruction as a termination of employment, although admitting that Fino never told petitioner that she was fired, petitioner handed in her keys and departed. She did not return and did not further contact Fino.

At the hearing, petitioner also testified to additional demeaning comments allegedly made to her by Fino and Wickfors; to an admission that the two women enjoyed making petitioner cry; and to a statement that petitioner should have had an abortion, rather than giving birth to her daughter.*fn2 However, despite an alleged history of comments that petitioner was a "lunatic" and a "wacko," petitioner testified that she did not leave her employment voluntarily, because she "loved [her] job."

Plaintiff offered certifications by Stolz and two co-employees in support of her claims, but they did ...


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