COURTNEY J. MYERS v. BOARD OF REVIEW DEPARTMENT OF LABOR and ROAD RUNNER COURIER SERVICES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5963-09T2

COURTNEY J. MYERS,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and ROAD RUNNER

COURIER SERVICES, INC.,

Respondents.

____________________________________

July 18, 2011

Submitted June 22, 2011 Decided

Before Judges A. A. Rodr guez and Reisner.

On appeal from the Board of Review, Department of Labor, Docket No. 235,548.

Earp Cohn, P.C., attorneys for appellant (Edward F. Borden, Jr., of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel DiLella, Deputy Attorney General, on the brief).

Respondent Road Runner Courier Services, Inc., has not filed a brief.

PER CURIAM

Claimant Courtney J. Myers appeals from the June 25, 2010 decision of the Board of Review (Board), upholding the decision of the Appeal Tribunal, denying her unemployment benefits and requesting a refund. We affirm.

Myers began her employment as an administrative assistant on May 27, 2008 for Road Runner Courier Service, Inc. (Road Runner). After three months on the job, the owner and president of Road Runner, John Fiore, promoted her to Driver Manager.

In the weeks before her employment ended, Myers began to hear complaints from drivers that Fiore was short-changing them on their expense reimbursements and was manipulating their work schedules to deny them incentive payments. Myers told the drivers they should examine their pay stubs and speak to Fiore, if they believed there were discrepancies.

Early on the morning of May 20, 2009, Mark Lawler, one of the drivers, confronted Fiore. Fiore and Lawler got into a heated argument. Fiore ordered Lawler out of the building and then fired him. Then, Lawler suggested to Fiore that Myers had confirmed his belief that Fiore was cheating the drivers.

Fiore stormed into the back office and angrily confronted Myers. According to her testimony at the Appeal Tribunal hearing,

Once [Lawler] was fired he said, 'John everybody here knows you're a crook. Just ask [Trish Ross, Road Runner's Office Manager]. Just ask [Myers].' And he left and once he said that then John [Fiore] came back screaming. 'What the 'f' are saying about me? What the 'f' do you do sit around the table and conspire about me? Are you trying to destroy me? Who else are you 'f' feeding this shit too?' and so on and he left the room. He went back out front to the main office area. Told all the drivers to leave and go to their car to leave the building. He then came back again and started screaming again and I was frightened and I left. I didn't know what he was going to do. He's six foot something, 300 pounds. It's scary. Very intimidating.

These events were captured on a videotaping system covering the entire office, including the area where Fiore confronted Myers.

On that day, Myers left her workplace and did not return. She applied for unemployment benefits. A Deputy Director determined that she was eligible for benefits, because she had not quit her job voluntarily. Rather, she had been "verbally harassed" by Fiore, so as to constitute "good cause" for her leaving the job.

Road Runner appealed. At the first hearing held by the Appeal Tribunal, Fiore did not participate. Ross was the sole witness for road Runner. Myers testified about the videotaping system in the first Appeal Tribunal hearing. The Appeals Examiner questioned Ross about the system and decided that Fiore should testify.

Fiore testified at a second hearing and denied Myers's allegations. He did not produce the security tapes.

The Appeal Tribunal issued a decision contrary to the Deputy's decision. It found that:

In this case, while [Myers] was dealing with less than ideal working conditions, she has not justified this decision to walk off the job . . . Clearly the casual nature of this business lent itself to more of a relaxed work environment, which unfortunately led to both profane language and yelling being an accepted part of this workplace. Considering there was a specific pattern of this behavior, it is difficult to fathom why [Myers] would have felt unsafe as she had never chosen to walk off the job in the past when the owner was acting in this fashion. [Myers] left work voluntarily without good cause attributable to the work and is disqualified for benefits as of 5/17/09 in accordance with N.J.S.A. 43:21-5(a).

Myers appealed to the Board. The Board upheld the Appeal Tribunal's decision. Myers was required to refund the unemployment benefits already receive.

On appeal, Myers contends that there was good cause for her to quit. We disagree.

At the outset, we note that an appellate court has a limited role in reviewing decisions of administrative agencies. Brady v. Board of Review, 152 N.J. 197, 210 (1997). We will reverse an agency decision only if it is arbitrary, capricious or unreasonable or unsupported by substantial credible evidence in the record as a whole. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985).

Moreover, "mere dissatisfaction with working conditions that are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily." Domenico v. Board of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Board of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)).

Here, [Myers]'s reasons for resigning constitute mere dissatisfaction with the working conditions, based on Fiore's rude behavior. It is a claimant's burden to show by competent medical proof that the work aggravated or caused a medical condition or made it harder to recover from one. Israel v. Bally's Park Place, 283 N.J. Super. 1, 5-6 (App. Div.), certif. denied, 143 N.J. 326 (1995).

Here, Myers did not present any medical evidence that her physical or psychological health was affected. Thus, Myers did not sustain the requisite burden.