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Carlomagno v. Board of Review

August 6, 2010

ANGELINA M. CARLOMAGNO, APPELLANT,
v.
BOARD OF REVIEW, AND CHECKPOINT H.R., LLC, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 191,428.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2010

Before Judges Messano and LeWinn.

Appellant appeals from the January 22, 2009 final agency decision of the Board of Review (Board), affirming the Appeal Tribunal's determination that she left work voluntarily, not for good cause, and requiring her to refund over $13,000 in unemployment benefits. We affirm.

We summarize the evidence presented before the Appeal Tribunal.

Appellant worked as a payroll processor for Checkpoint H.R., LLC, from October 2002 through June 6, 2008, when she left employment. Her work station was in an area divided into cubicles. Appellant claimed that she developed an intolerance for the sound of co-workers' acrylic nails typing on keyboards, to the extent that she manifested physical and nervous symptoms requiring medical treatment.

The first episode of these work-related symptoms occurred in 2003. At that time the business' co-owner accommodated appellant by changing her work location. She stated that all of her symptoms abated as a result.

No further problems arose until sometime in March or April 2008, when co-workers with acrylic fingernails were relocated near appellant's work station. This time, her employer did not offer to make any accommodations. Appellant stated that she did not supply her employer with any medical documentation as to her symptoms because she did not want to go to a doctor or take medications.

Appellant provided this information in a telephonic hearing before the Appeal Tribunal on July 29, 2008, in which Checkpoint did not participate. On August 5, 2008, the Appeal Tribunal issued a decision finding that appellant left work involuntarily with good cause attributable to the work and was therefore eligible for unemployment benefits.

Checkpoint filed an appeal on August 13, 2008; in response, the Board remanded the matter to the Appeal Tribunal for additional testimony.

Appellant and Checkpoint participated in another hearing on November 24, 2008. Appellant essentially reiterated her testimony from the prior hearing. Michelle Moylan, Checkpoint's Human Resource Specialist, testified that appellant never provided her with "any type of medical documentation[,]" and left no "recourse for [her] to assist [appellant.]" Moylan disputed appellant's claim that Checkpoint "intentionally provoked [her] to leave[,]" noting that she was "an employee for five years."

At the conclusion of the hearing, the Appeal Tribunal issued a decision rescinding its prior determination, and concluding that appellant did leave work voluntarily without good cause attributable to the work and, therefore, was disqualified from receiving benefits. This decision was based upon the following findings of fact [Appellant] had worked for the employer for approximately five years and during that time had made several requests to move her seat due to being annoyed by another co[-]worker. On all occasions, the employer complied. The last incident occurred in the spring of 2008. [Appellant] had been tormented by the continuous sound of two of her co[-]workers['] repetitive tapping on their keyboards. [Appellant] found the constant tapping of their acrylic fingernails against the keys to be extremely agitating. [Appellant] tried to use earplugs to block the sound out, but that did not work. [Appellant] did not provide the employer with [a] medical certification, in support of her contention, that she was suffering from stress as a result of the typing situation.

The employer . . . denied [appellant's] final request to move her seat. There were no other ...


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