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Scott v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 not testify on her behalf.

Fino, when called upon to testify, corroborated petitioner's emotional state on the morning in question, but claimed that, because the store was at its busiest, Fino had sought to defer talking over matters with her. She stated:

It was the busiest time of the day at 9 a.m. at a bagel shop and [petitioner] was visibly upset and making a scene and I said if you don't think we can handle this at this [later] time, then you need to leave. I did not fire her.

Fino denied making the offending comment herself, and denied overhearing it, additionally challenging the circumstances of the utterance, testifying that because of the early hour that Stolz habitually came to the store, there were never nine other customers present. Fino also denied making the other derogatory remarks to which petitioner had testified. Calls to petitioner by Fino after petitioner left work were not answered.

Wickfors testified that she was not present on the last day of petitioner's employment, because she was at a hospital in Philadelphia where her husband was undergoing tests. She denied making the comment reported by Stolz and the other derogatory remarks that petitioner claimed.

In a written Appeal Tribunal opinion following the hearing, the hearing officer recited plaintiff's allegation of alleged slander, and he made the following findings of fact:

The claimant was upset and confronted the employer as soon as she arrived at the store on 03/15/2005. This created a scene in front of the customers and the owner wanted to discuss the situation after the shop's busy time. The claimant would not disclose where she heard the rumor or who was involved and the employer could not get to the bottom of the incident without knowing who to confront. The claimant was asked to calm down or leave the shop. The claimant picked up her belongings, turned in her keys and walked off the job. The employer did not make the alleged remarks and the claimant was not terminated by the employer.

The claimant was happy and would have continued working with her pay, co-workers remarks, and working conditions prior to 03/15/2005 and did not leave the job for these reasons. The employer did not make or hear any of the remarks the claimant alleges were made and was willing to discuss the matter after the busy time and even after she left the shop. The claimant's leaving of the work because she heard a rumor about a remark made by the employer is not considered a cause sufficient enough to justify one leaving the ranks of the employed to join the ranks of the unemployed. The claimant left work voluntarily without good cause attributable to such work. Therefore, she is disqualified for benefits as of 03/13/2005 in accordance with N.J.S.A. 43:21-5(a).

On appeal, petitioner challenges these findings, with which the Board of Review concurred, as unsupported by the record. When confronted with an argument of this sort, we are limited in our review to a determination whether the factfinder could reasonably have reached his stated conclusion upon the proofs presented. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We find that test to have been met in this case. The effect of petitioner's evidence of a pattern of harassment, even if credited despite the denials of Fino and Wickfors, could reasonably have been found to have been ameliorated by petitioner's admission that she remained happy in her work.

Further, the truth of the rumor that Wickfors slandered petitioner was denied both by Wickfors and by Fino. And finally, the testimony of Fino, essentially uncontradicted by petitioner, supported the conclusion that petitioner's employment was not involuntarily terminated. The record was thus sufficient to support the factual conclusions reached by the hearing examiner and the Board of Review and the legal determination that petitioner was disqualified from receipt of unemployment compensation by N.J.S.A. 43:21-5.

Because the administrative agency did not find slander to have been uttered or harassment to have led to plaintiff's determination to leave her employment, we need not address petitioner's further arguments relating to whether evidence of slander or harassment can constitute good cause for a voluntary employment termination.

Affirmed.


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