ALAN G. ROCHE v. BOARD OF REVIEW, DEPARTMENT OF LABOR, AND FEDERAL EXPRESS CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2414-08T32414-08T3

ALAN G. ROCHE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, AND FEDERAL EXPRESS

CORPORATION,

Respondents.

_________________________________

 

Submitted December 16, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 194,715.

Alan G. Roche, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review, New Jersey Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Alan G. Roche appeals the denial of unemployment benefits by respondent Division of Unemployment and Disability Benefits (Division). We affirm.

We glean the following facts from the record, including the transcript of the hearing before the appeal examiner. Roche was an employee of respondent Federal Express Corporation (FedEx) from August 2000 to June 14, 2008. In February 2008, he was primarily a delivery driver, working part-time on weekdays, with occasional weekend overtime. Shortly after midnight on February 9, 2008, Roche was stopped by the police in the Borough of Princeton. He was issued four summonses for traffic offenses, one of which was driving under the influence (DUI), contrary to N.J.S.A. 39:4-50. He was not working at the time, having finished his shift the previous evening.

Pursuant to FedEx policy, of which Roche had been aware since his employment began, Roche was removed from road duty because of the pending DUI charge. After four days of paid suspension, FedEx put Roche on an unpaid leave of absence for ninety days. He was informed that he would be terminated at the end of the ninety days unless he either (1) satisfactorily resolved the DUI charges or (2) obtained other employment within FedEx that did not require driving.

On May 22, 2008, FedEx informed Roche that he would be terminated as of June 14, 2008 because the DUI charge remained unresolved, and he had not obtained other employment within FedEx.

Roche filed for unemployment benefits. On July 16, 2008, the Deputy Director determined that Roche was disqualified under N.J.S.A. 43:21-5(a) because he "left work voluntarily without good cause attributable to the work." Roche appealed that decision to the Appeal Tribunal. The hearing was held on September 30, 2008. The Appeal Tribunal affirmed the Deputy Director's decision, relying on the Supreme Court's decision in Yardville Supply Co. v. Board of Review, 114 N.J. 371, 377 (1989). Roche then appealed to the Board of Review, which affirmed the decision of the Appeal Tribunal. This appeal followed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if the agency's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville, supra, 114 N.J. at 375 (quotation omitted). Although the Act is remedial in nature, it is the claimant who bears the burden of proving entitlement to benefits. Brady, supra, 152 N.J. at 218. And, "[t]he basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J. at 374.

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

An individual shall be disqualified for benefits:

 
(a) For 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, as determined in each case.

The Supreme Court interpreted this provision in Yardville under similar factual circumstances. There, the claimant, a truck driver, lost his license as a result of a non-work-related drunk driving conviction. Id. at 373. When he informed his employer, he was terminated because no other work was available. Ibid. Although his initial claim was approved, and affirmed by us on appeal, the Supreme Court reversed, concluding that the claimant was not entitled to unemployment benefits pursuant to the statute. Id. at 373-75. "Where it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a)." Id. at 377. See also Mullarney v. Bd. of Review, 343 N.J. Super. 401, 407 (App. Div. 2001) (holding employee's surrender of his nursing license and subsequent termination from employment made him ineligible for benefits under the statute).

Yardville's holding was codified by the Board in its regulation, N.J.A.C. 12:17-9.10(a), which provides

[i]f an individual is discharged due to the loss of a prerequisite license which is necessary to perform the duties of his or her employment, such discharge shall subject the individual to disqualification for benefits for voluntarily leaving work if he or she engaged in an act which resulted in the loss of the license.

Roche seeks to distinguish Yardville. He argues that he was not immediately terminated on the basis of the DUI charge, but only placed on unpaid leave. He contends that he was terminated because he was unable to find other employment within FedEx, which he argues was not a voluntary act on his part. We disagree.

The series of events that led to Roche's termination started with the DUI charge. Rather than provide for immediate termination, FedEx had adopted a policy that gave such employees ninety days to resolve the DUI charge or find other employment within FedEx. Roche was unable to do either. Had it not been for the DUI charge, however, he would not have found himself subject to termination. The fact that FedEx allowed Roche an opportunity to retain his employment does not change the fact that the DUI charge was the primary proximate cause of his termination.

Consequently, the Division's decision was not "arbitrary, capricious, or unreasonable." It will not be disturbed on appeal. Brady, supra, 152 N.J. at 210.

Affirmed.

 

Roche subsequently pled guilty to the DUI charge. His driving privileges were suspended for three months as part of his sentence.

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A-2414-08T3

January 6, 2010