MONICA FLOYD v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6650-04T16650-04T1

MONICA FLOYD,

Appellant,

vs.

BOARD OF REVIEW,

Respondent.

________________________________________________

 

Argued March 15, 2006 - Decided May 1, 2006

Before Judges Stern and Humphreys.

On appeal from the Board of Review,

Department of Labor, 72,985.

Eric Gang argued the cause for appellant

(Zemel & Zemel, attorneys)

Zulima V. Farber, Attorney General of New Jersey,

attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; and Ellen A. Reichart,

Deputy Attorney General, on the brief).

PER CURIAM

Monica Floyd was denied unemployment compensation. She appeals, contending that she left her work for good cause. We affirm.

Floyd alleges the following. She was employed as an "auditor/supervisor." In October 2004, her sister drowned when a car in which her sister was riding went into the Passaic river. As a result Floyd was diagnosed as suffering from post traumatic stress and depression. Her job required her to drive to cities in New Jersey, New York and Pennsylvania. She told the hearing examiner that she had "to try to find streets that I have no clue of where they're at and I felt as though it was dangerous for me to be out there in the state of mind that I was in driving and that is what my job pertains to."

She resigned her employment in March of 2005 and applied for unemployment compensation.

The Appeals Examiner denied her application. She appealed. The Appeal Tribunal found that she was ineligible for unemployment compensation because she left work voluntarily without good cause attributable to work. She appealed again. The Board of Review affirmed the decision of the Appeal Tribunal.

A court has a limited role in reviewing an agency determination. Henry v. Rahway State Prison, 81 N.J. 571, 578 (1980)("Ordinarily, an appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole.")

A voluntary quit of employment without good cause related to work disqualifies an employee from receiving unemployment benefits. See Self v. Board of Review, 91 N.J. 453, 457 (1982) construing the 1961 amendment to N.J.S.A. 43:21-5(a).

Floyd contends that personal health reasons can be considered good cause for leaving work if the employee's safety is at risk. She relies on Domenico v. Labor & Industry Dept. Review Board, 192 N.J. Super. 284 (App. Div. 1983). The court in Domenico found that the claimant was qualified to receive unemployment benefits because she demonstrated good cause in resigning from her employment as a music therapist at a psychiatric hospital. The court stated:

In our view the record overwhelmingly demonstrates that Domenico's reasonable fear of imminent physical harm justified her voluntary termination of employment. Domenico had twice been assaulted while in a closed ward at the Ancora State Psychiatric Hospital. Obviously, her concerns for her safety were not imaginary, trifling or whimsical. The fact that one of the attacks upon her required that she be hospitalized compels the conclusion that the desire to be protected from conditions where such an incident might reoccur is a natural reaction of a person of common sense and prudence. Thus, Domenico's fears were well founded and clearly justified her leaving work. Id. at 288.

Floyd's concerns here are not fairly comparable to those of Domenico. Floyd has not presented any evidence of an accident or a near accident as a result of her medical condition. She did not stop driving after her sister's death. Floyd has not shown a "well founded fear" which "clearly" justifies her leaving her employment. The Board of Review was not arbitrary, capricious or unreasonable in holding that Floyd did not show that she left work for good cause attributable to work.

Floyd also contends that her employer failed to accommodate her post traumatic stress disorder and that this failure constituted a constructive discharge, entitling her to unemployment benefits. She relies on Shepard v. Hunterdon Developmental Center, 336 N.J. Super. 395, 421 (App. Div.) aff'd in part and rev'd in part, 174 N.J. 1 (2002).

Floyd did not present any evidence to the appeals examiner supporting this contention. Her argument below was that she resigned because of post traumatic stress disorder resulting from her sister's tragic death. She did not contend that she resigned because of her employer's failure to accommodate her illness. Floyd cannot prevail on an argument bereft of evidential support.

Affirmed.

 

We have not been supplied with the opinion of the appeals examiner. The Attorney General advises us that the Department of Labor does not retain the appeals examiner's opinion. We suggest that the Department reconsider this policy. The opinion of an appeals examiner is certainly relevant. The appeals examiner heard the witnesses. The appeals examiner may have made credibility findings. Our decision may turn on those findings.

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A-6650-04T1

May 1, 2006