WALTER CORTADO v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WALTER CORTADO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND WORKFORCE DEVELOPMENT

and PROFULGENT TECHNOLOGY, LLC,

Respondents.

_________________________________

October 16, 2014

Submitted September 22, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 383,998.

Walter Cortado, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Nicole M. DeMuro, Deputy Attorney General, on the brief).

Profulgent Technology, LLC, respondent pro se.

PER CURIAM

Pro se claimant Walter Cortado appeals the Board of Review's final agency decision of January 9, 2013, concluding that he is not entitled to unemployment benefits because his employer, Profulgent Technology, LLC ("Profulgent") discharged him for severe misconduct within the meaning of N.J.S.A. 43:21-5(b). We affirm.

The Board ratified the determination of the Appeal Tribunal, which found that Cortado had been justifiably fired for excessive absenteeism and tardiness, after repeated warnings from his supervisor. There is substantial credible evidence in the record to support that finding, including e-mails between Cortado and his superior. Cortado's repeated violations of the employer's policies satisfy the revised statute's intermediate standard of severe misconduct, as interpreted by our court in Silver v. Bd. of Review, 430 N.J. Super. 44 (App. Div. 2013).

We held in Silver that severe misconduct requires, at a minimum, proof of the same state of mind on the part of the claimant needed to show simple misconduct. Silver, supra, 430 N.J. Super. at 55-56. Specifically, it must first be shown that the claimant's actions that resulted in his discharge were "improper, intentional, connected with the work, malicious, and within the employee's control." Id. at 53 (emphasis omitted); see also N.J.A.C. 12:17-10.2 (defining misconduct). Second, the conduct must "also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Silver, supra, 430 N.J. Super. at 53; see also N.J.A.C. 12:17-10.2. The record abundantly supports the agency's determination that these elements were established here.

Although Cortado contends that he missed work for medical reasons (hypertension and a bad knee) on the date of his discharge, he provided no documentation from his physician to justify his absence. Cortado argues that the notices sent to him by his employer warning him to correct his behavior were deficient because they did not attach the company's policy concerning tardiness and absenteeism. He relies on excerpts from a website known as "legalzoom.com," recommending methods in which employers may convey such company policies and warnings. The contents of that website unquestionably are not competent legal authority, and, in any event, comprise mere recommendations.

We owe deference to the hearing examiner's findings of fact and credibility assessments, which were thereafter adopted by the Board. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)); see also Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981).

Furthermore, we owe deference to the Board of Review's expertise in unemployment cases and its repeated construction and application of the standards of Title 43. See, e.g., Brady, supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). Unless the Board of Review's action "was arbitrary, capricious, or unreasonable, [its] ruling should not be disturbed." Brady, supra, 152 N.J. at 210.

Applying this well-established limited scope of review, we sustain the agency's denial of benefits, which plainly comports with the governing law and the examiner's factual findings based on the evidence.

Affirmed.