FERNANDO RODRIGUEZ v. BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0815-05T10815-05T1

FERNANDO RODRIGUEZ,

Claimant-Appellant,

v.

BOARD OF REVIEW, NEW JERSEY

DEPARTMENT OF LABOR,

Respondent-Respondent,

and

WASTE MANAGEMENT OF NEW

JERSEY, INC.,

Respondent.

_______________________________________

 

Submitted August 30, 2006 - Decided September 6, 2006

Before Judges Yannotti and Seltzer.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 71,906.

South Jersey Legal Services, Inc., attorney for appellant (Lazlo J. G. Beh, of counsel and on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Fernando Rodriguez (Rodriguez) appeals from a final determination of the Board of Review (Board) dated September 6, 2005 finding that Rodriguez was disqualified for unemployment compensation benefits. We affirm.

Rodriguez applied for unemployment compensation benefits on March 13, 2005. A deputy claims examiner issued a decision on April 15, 2005 finding that Rodriguez was disqualified for benefits under N.J.S.A. 43:21-5(a) because he left his job voluntarily, without good cause attributable to the work. Rodriguez appealed the deputy's determination and a hearing was held before the Appeal Tribunal on May 6, 2005. The Appeal Tribunal issued a decision upholding the deputy's determination on May 9, 2005. Rodriguez appealed to the Board, which remanded the matter to the Appeal Tribunal for the taking of additional testimony. Another hearing was held on July 25, 2005.

The evidence presented at the July 25, 2005 hearing revealed that Rodriguez was employed as a trash collector by Waste Management of New Jersey, Inc. (Waste Management) beginning on April 26, 2004. Initially, Rodriguez was hired as a temporary employee and he was paid $6.50 per hour. When Waste Management hired Rodriguez to work on a permanent basis, his salary was increased to $8.50 an hour. Rodriguez testified that when he became a permanent employee, a supervisor named Jim told him that he would receive a $.50 an hour raise after 90 days of employment.

Rodriguez asserted that the Waste Management job application form indicated that he would receive this salary increase but he conceded that the form was in English, he did not speak English and the form had not been translated into Spanish for him. However, Rodriguez testified that Jim had assured him the application stated that he would receive the raise. Rodriguez did not present a copy of the application at the hearing.

Rodriguez also said that, before and after working 90 days for Waste Management, he spoke to his supervisor about the salary increase. The supervisor said that after 90 days, Rodriguez would receive the $.50 increase. Rodriguez said he never received the increase in pay. He stated he knew that Waste Management did not always give its employees a raise after 90 days of employment. His co-workers told him that some of them had received the raise and others did not. Some co-workers said they had to ask repeatedly for the raise before they received one.

Rodriguez stated that when he asked Jim about the raise, Jim said he had to speak with another supervisor. According to Rodriguez, Jim also said Rodriguez should not leave the job and Rodriguez would get the raise if he continued working. Rodriguez decided that, after several months of asking for the raise, and not receiving it, he "couldn't take it anymore." On March 11, 2005, Rodriguez advised the dispatcher he was leaving the job. Rodriguez found another job in July 2005 and he was paid $6.50 per hour.

The Appeal Tribunal found that Rodriguez left his job at Waste Management because he did not receive the $.50 increase in his hourly wage that he requested. The Appeal Tribunal found that these were personal reasons for leaving employment and did not constitute good cause attributable to the work. Therefore, the Appeal Tribunal determined that Rodriguez was disqualified for benefits from March 6, 2005. Rodriguez appealed to the Board and on September 6, 2005, the Board affirmed the decision of the Appeal Tribunal. This appeal followed.

Rodriguez contends the uncontested evidence presented at the hearing established that Waste Management made an oral agreement to raise his salary by $.50 after he worked 90 days as a permanent employee of the company. Rodriguez argues he had good cause to leave his job at Waste Management because his employer breached a contractual obligation to give him a raise. The scope of our review in an appeal from a final decision of an administrative agency is narrow. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). We may not set aside an agency's final determination unless it is shown to be arbitrary, capricious or unreasonable. Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). Moreover, we are required to defer to the findings of fact by an administrative agency when the findings are supported by sufficient, credible and competent evidence. Clowes v. Terminex Int'l, Inc., 109 N.J. 575, 587 (1988) (citing Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981)). Applying these well established principles of appellate review, we are convinced that the agency's decision in this matter must be affirmed.

The New Jersey Unemployment Compensation Law provides that a claimant shall be disqualified from the receipt of unemployment benefits:

[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .

[N.J.S.A. 43:21-5(a).]

Although the statute does not define the term "good cause," we have construed that phrase to mean "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Review Bd., 158 N.J. Super. 172, 174 (App. Div. 1978)). "The decision to leave employment must be compelled by real, substantial and reasonable circumstance not imaginary, trifling and whimsical ones." Id. at 288. The employee has a responsibility "to do what is necessary and reasonable in order to remain employed." Ibid.

Here, the Board upheld the finding by the Appeal Tribunal that Rodriguez left his job because he failed to receive a requested increase in compensation. Although Rodriguez insisted his supervisors at the company made an oral promise to raise his salary, the Board rejected Rodriguez's contention that his supervisors made a definite promise to increase his wages. Although Rodriguez asserted that his job application included a written commitment by the company that his wages would be increased by $.50 per hour after the initial 90 days of permanent employment, Rodriguez did not present that document as evidence. Rodriguez also claimed that a person named Jim had assured him that he would get a salary increase after 90 days of permanent employment but Rodriguez could not even identify this person's last name and provided no evidence that Jim had authority to make that commitment.

In fact, as Rodriguez testified, when he asked Jim about the raise, Jim said he had to speak to another supervisor about the raise. From this testimony, it may be inferred that Jim did not have authority to commit Waste Management to any salary increase. There is no evidence that any other supervisor with such authority ever promised Rodriguez his salary would be increased. Furthermore, Rodriguez admitted at the hearing that some Waste Management employees received increases and some did not. There is no credible evidence that Waste Management had a general corporate policy to raise the salaries of all workers after the initial 90 days of permanent employment.

Thus, this is not a case where an employee left his job because his employer failed to give him a promised raise. Rather, as the Board found, this is a case where the employee did not receive a raise that he requested. In that respect, the case is substantially similar to DeSantis v. Bd. of Review, 149 N.J. Super. 35 (App. Div. 1977). There, the employee left her job "primarily because of her disappointment in not receiving a hoped-for raise." Id. at 38. The employee's supervisors promised to recommend an increase in salary but "those recommendations apparently were either not made or not implemented." Ibid. We held that, in the absence of a contractual obligation on the part of the employer with respect to employee increments, "an employee's frustration caused by not receiving an expected pay raise does not constitute good cause within the statutory intendment." Ibid. See also Nicholas v. Bd. of Review, 171 N.J. Super. 36, 37 (App. Div. 1979) (noting that when an employee who quits work because of dissatisfaction with his wages, the employee has left work voluntarily without good cause attributable to the work).

The same conclusion applies in this case. Here, Rodriguez left work because he was frustrated by his employer's refusal to give him the salary increase that he requested. The Board rejected Rodriguez's claim that his employer promised to increase his salary. As the Board correctly found, Rodriguez left his job for personal reasons, specifically his dissatisfaction with the amount he was being paid, and he was disqualified from the receipt of unemployment benefits under N.J.S.A. 43:21-5(a).

Rodriguez argues that our decision in Gilbert v. Durant Glass Mfg. Co., 258 N.J. Super. 320 (App. Div. 1992), warrants reversal of the Board's decision in this case. We disagree. In Gilbert, plaintiff sued her employer for wrongful termination, alleging that the employee had "a generally applicable and consistently applied policy" that employee would not be terminated without verbal and written warnings. Id. at 326. We held that, although the plaintiff was an at-will employee, she could assert a claim for breach of an expressed or implied employment policy provided it was definitive and company-wide. Id. at 330. We determined that the plaintiff had presented a prima facie case of wrongful discharge because she presented sufficient evidence to establish that the employees reasonably believed that a warnings policy existed. Ibid.

Clearly, Rodriguez's reliance upon our decision in Gilbert is misplaced. This case involves a claim for unemployment compensation benefits, not a claim based on wrongful discharge. Rodriguez's entitlement to benefits is governed by statute, not the general principles that apply in wrongful termination cases. Furthermore, as we have pointed out, Rodriguez did not present sufficient evidence to establish a definitive, company-wide policy that all permanent employees would receive salary increases after the initial 90 days of their employment. Thus, Gilbert has no bearing whatsoever on this case.

Rodriguez also cites Shebar v. Sanyo Bus. Sys. Corp., 218 N.J. Super. 111 (App. Div. 1987), aff'd, 111 N.J. 276 (1988). In that matter, the plaintiff also asserted a claim for wrongful termination. The plaintiff alleged that the employer made an oral commitment not to terminate company managers except for cause. Id. at 118. We held that in order to prevail on such a claim, the plaintiff had the burden of proving the existence of a company-wide policy regarding the termination of managerial employees. Id. at 121. We added that the plaintiff could rely upon statements of his supervisors concerning the policy but "only if [the] plaintiff is able to prove that [his supervisors'] statements constituted an accurate representation of policy which they were authorized to make." Ibid.

The Shebar case also does not involve a claim for unemployment benefits. Moreover, in this case, there is no evidence that the oral statements attributed to Rodriguez's supervisors regarding the raise were an "accurate representation" of corporate policy regarding salary increases. Ibid. If anything, Rodriguez's testimony shows that there was no consistent, definitive company policy regarding salary increases. There also is no evidence that Rodriguez's supervisors were authorized to make binding statements of the company's policy regarding salary increases for its employees. Therefore, Rodriguez's reliance upon Shebar is unavailing.

Rodriguez additionally argues that he was prejudiced because he was unable to obtain relevant information from Waste Management prior to the hearing. Rodriguez argues that he should not be penalized for his inability to produce evidence to corroborate his claims. However, the record shows that the Appeal Tribunal did not issue subpoenas to the employer in this case because Rodriguez was unable to provide the names and titles of persons whose testimony he wanted to present. In addition, Rodriguez did not seek an adjournment so that he could ascertain the names and titles of these individuals. The agency can hardly be faulted for failing to issue subpoenas when the claimant is unable to identify the persons who might have relevant evidence.

 
Affirmed.

(continued)

(continued)

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A-0815-05T1

September 6, 2006