FRANCIS MICHAEL McKENNA v. BOARD OF REVIEW, DEPARTMENT OF LABOR and RSM McGLADREY INC
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1719-08T3
FRANCIS MICHAEL McKENNA,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR and RSM McGLADREY,
INC.,
Respondents.
_____________________________
Submitted: February 24, 2010 - Decided: March 11, 2010
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Board of Review,
Department of Labor, Docket No. 197,371.
Francis Michael McKenna, appellant pro se.
Paula T. Dow, Attorney General, attorney for
respondent Board of Review (Lewis A.
Scheindlin, Assistant Attorney General, of
Connaughton,
counsel; Brady Montalbano
Deputy Attorney General, on the brief).
Respondent RSM McGladrey, Inc., has not
filed a brief.
PER CURIAM
Francis McKenna filed a claim for unemployment benefits on
November 11, 2007, following termination from his employment at
RSM McGladrey, Inc. He received benefits that were exhausted as
of February 9, 2008. McKenna thereafter filed a claim for
emergency unemployment compensation (EUC08) benefits under the
Emergency Unemployment Compensation Act (Act), Pub. L. No. 110-
252, § 4001, Title IV,
122 Stat. 2323, 2353-57 (2008).1 On
August 4, 2008, the EUC Processing Unit mailed a notice of
benefit determination to McKenna holding him ineligible for
EUC08 benefits on the ground that during the base year period of
July 1, 2006 to June 30, 2007, he did not establish twenty base
weeks or earn forty times the weekly benefit rate (40 x $535 =
$21,440) as required by the Act. See § 4001(d)(2),
122 Stat. at
2354; Federal-State Extended Unemployment Compensation Act of
1970, § 202(a)(5),
26 U.S.C.A. 3304 note. According to the
Division records, during the base year period McKenna only
worked twelve weeks from April through June, and earned
$12,333.34 in wages from his sole employer, McGladrey.
McKenna participated in a telephone hearing with Claims
Examiner, Karen Jackson, on Friday, September l9, 2008. Jackson
explained to him what the Division records demonstrated.
McKenna appeared to be slightly confused during the discussion,
stating that he had worked for "seven months - 26 weeks" and had
earned "$80,000" in 2007 so he "qualified for the weeks and the
money." It is difficult to ascertain from the transcript the
exact time frame to which McKenna was referring. He also
1
The Act appears as a note to and amends 26 U.S.C.A. § 3304.
A-1719-08T3
2
appeared to intimate that he had other employers during the base
term. In response to McKenna's request for additional time to
research the matter, the claims examiner allowed him until
Monday afternoon, September 22 to submit evidence.
On September 26, 2008, the Appeal Tribunal affirmed the
decision of the deputy, holding McKenna disqualified for EUC08
benefits because he did not establish twenty base weeks or
establish forty times the weekly benefit rate during the base
period according to the aforestated Division records. The
appeals examiner noted that "[t]he claimant did not submit
evidence that he had additional employment during the base year
period" and "[t]he claimant's assertion that he had additional
employers [during the base year] is not supported by
documentation." On November 6, 2008, the Board of Review
affirmed the decision of the Appeal Tribunal without
explanation. This appeal ensued.
On appeal, McKenna advises that he submitted documentation
to Karen Jackson immediately after the hearing and confirmed
that it was received in her office on September 22, 2008. The
only submissions that are potentially relevant are a 2006 W-2
wage and tax statement and an earnings summary from Rothstein,
Kass & Company, P.C. and a 1099-B statement from Lou Ottrando,
L.L.C., and three W-2 wage and tax statements (NJ, CA, MD) from
A-1719-08T3
3
McGladrey. We also note that McKenna submitted a variety of
bank statements that are not relevant because they are outside
the pertinent base period from July 1, 2006 through June 30,
2007. Based on the appeal examiner's ambiguous statements in
her determination, we cannot tell whether she did not receive
McKenna's submissions, and thus rendered her decision based on
lack of proof by the claimant who has the burden of proof for
entitlement to benefits, Brady v. Bd. of Review,
152 N.J. 197,
218 (1997), or whether she reviewed McKenna's submissions and
found them wanting because there were no direct deposits, pay
checks, or statements from the employers for the relevant
period.
Accordingly, we remand for a further hearing in this
matter. We remind McKenna that he has the burden of proof to
establish by competent credible evidence that he worked at least
twenty weeks and earned more than $21,440 for the period from
July l, 2006 through June 30, 2007. If he worked for either or
both Rothstein, Ottrando or McGladrey during that time, he
should obtain letters from each of them specifically listing how
many weeks he worked and what his earnings were, and should also
provide to the Division direct deposits of any payments from
those employers during the base period.
Remanded. We do not retain jurisdiction.
A-1719-08T3
4
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