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Lopresti v. Board of Review

August 27, 2010

JOHN LOPRESTI, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND XEROX CORPORATION, RESPONDENTS.



On appeal from a Final Decision of the Board of Review, Docket No. 206,752.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 15, 2010

Before Judges Carchman and Parrillo.

Appellant John LoPresti appeals from the final decision of the Board of Review (the Board) concluding that appellant is ineligible for unemployment benefits. We affirm.

These are the relevant facts. Appellant was employed by Xerox as an account associate from August 2006 to September 2008 when he voluntarily resigned, believing his employer subjected him to continuous harassment and a hostile work environment.

Appellant worked at the same position and location for Medco for ten years until his job was outsourced to Xerox in 2006. Appellant's work schedule was changed six times within the two year period he worked for Xerox. Specifically, appellant's initial work schedule was from 8:00 a.m. to 5:00 p.m. His schedule was changed in August 2006 to 6:30 a.m. to 5:00 p.m.; in November 2006, to 5:00 a.m. to 5:00 p.m.; in December 2007, to 5 a.m. to 3:30 p.m.; in February 2007, to 5:00 a.m. to 3:00 p.m.; in April 2008, to 6:00 a.m. to 3:00 p.m.; and in July 2008, to 6:30 a.m. to 3:30 p.m. Appellant did not resign when his schedule was initially changed because he wanted to "work this out and try to stay."

Appellant was also dissatisfied because his employer did not grant him his specific vacation request. He described Xerox's vacation policy:

We were instructed that we had to schedule our vacation a year in advance but it wasn't held in stone. We were able to change the vacation as long as it was within the guidelines provided by [supervisor] John Francis and the guideline was we were not allowed to have more than two people off at the same time.

Appellant signed up three weeks in advance for a vacation from June 2 to June 10. Francis, his supervisor, removed appellant's name from the vacation calendar for the requested week. Francis explained that appellant was needed to do the work of the other employee who was taking off that week.

Appellant discussed his workplace frustration with David Young, Francis's supervisor. Young stated that he was going to have appellant transferred; he did not say when or where, but he had the option of transferring to a location up to fifty miles away.

Appellant suffered from high blood pressure and missed five work days, but he did not produce medical documentation for the days he was ill. Xerox's absence policy allows employees to miss four work days per year due to illness; pay is reduced for any excess absences. Appellant was not paid for his fifth day of absence. Finally, Francis informed appellant that he was going to be put into the performance improvement plan (PIP), and that he needed to work the eight hours he missed without pay. The purpose of placing appellant in PIP was not to terminate him but to "improve on the process."

In response to being notified that he was being placed in the PIP program, on September 2, 2008, appellant submitted a letter of resignation. He cited a hostile and untenable work environment as the reasons for his resignation and noted that "the fact that I was told I had to make up those eight hours[] . . . was just the final straw . . . ."

Appellant did not discuss his frustration about being placed on PIP with Young or Xerox's human resource department (HR). According to Xerox, its HR has an open door policy that allows employees to discuss any workplace problems. Appellant was informed of this open door policy when he first began working for ...


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