FRANK A. BREECE, JR v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANK A. BREECE, JR.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and LOWE'S HOME

CENTER, INC.,

Respondents.

________________________________________________________________

February 10, 2014

Submitted January 7, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from the Board of Review, Department of Labor, Docket No. 343,764.

Frank A. Breece, Jr., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

Respondent, Lowe's Home Center, Inc., has not filed a brief.

PER CURIAM

Plaintiff appeals from a final decision of the Board of Review that denied his application for unemployment benefits. Plaintiff was a full-time employee of Lowe's Home Center (Lowe's) from January 25, 2010 until September 3, 2010. Plaintiff filed a claim for unemployment benefits on September 5, 2010. The Deputy Director of the Division of Unemployment Insurance (the Division) determined that he was eligible for benefits without disqualification from September 5, 2010. Lowe's appealed, and a hearing was conducted by telephone before the Appeal Tribunal. The facts elicited at the hearing include the following.

On August 17, 2010, plaintiff sent a letter to Barbara Vandermiller, Human Resources Manager, which stated in part:

Barb: After discussing all possible situations for child care with my wife, we found the best and most affordable solution was for me to stay at home. Included please find enclosed a copy of my new availability as of September 1, 2010. I understand this may require Lowe's to make me a part time employee. I look forward to continuing working at Lowe's and hope we can come to some type of agreement. I will be away until August 24, 2010, but can be reached via cell phone at . . . . Thank you.

Plaintiff listed his availability as "open close" for Saturday and Sunday and "5PM close" for Monday through Friday.

Vandermiller testified she told plaintiff they would try to find a part-time position for him when he submitted the letter but "at no point guaranteed that that part time position would be guaranteed." She stated the only person who could decide to give plaintiff a part-time position was the store manager, Ted Knox. Lowe's did not have a part-time position available at the time and, therefore, plaintiff's employment was terminated. Vandermiller testified further that plaintiff could have retained his employment as a full-time Plumbing Pro "if he had been able to fulfill his time requirements."

Plaintiff testified that Vandermiller informed him on August 25 that his request had been granted. He testified further that when he provided the August 17 letter to his employer, he did not intend to leave his employment to care for his child; he was just looking to work different hours.

Plaintiff admitted that he was aware of the corporate rotation for the Plumbing Pro. He explained that the Plumbing Pros have a four-week schedule in which their shifts are set for four weeks, with the scheduled hours rotating and different each week. In addition, employees had different days off each week according to the rotating schedule. Plaintiff stated that this policy applied to all full-time associates in the building.

The Appeal Tribunal determined that plaintiff was disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(a), which directs that an individual "shall be disqualified for benefits . . . [when he or she] has left work voluntarily without good cause attributable to such work."1 Addressing plaintiff's contention that he did not leave his employment voluntarily, the Appeal Tribunal stated:

The claimant's contentions that he did not leave work is [sic] rejected, as he initiated the separation when he submitted a letter to the employer along with his available hours effective 09/01/10, telling the employer that he could no longer work full-time hours because it was most affordable for him to stay at home due to child care. The claimant's contentions that the employer approved his request to work part-time is [sic] rejected, as the human resource manager told him that she would try and find part-time work for him and at no time did the employer approve the claimant's request to work part-time. In this case, the claimant gave the employer notice that he could no longer work full-time hours as hired by a certain date. The employer did not have any part-time work available for the claimant and acted upon the notice the claimant provided and ended the claimant's employment. Therefore, the claimant left work voluntarily due to a lack of child care. This was a personal reason and was not attributable to the work. Therefore, the claimant is disqualified for benefits as of 08/29/10, in accordance with N.J.S.A. 43:21-5(a), as the claimant left work voluntarily without good cause attributable to such work.

Plaintiff appealed. The Board of Review affirmed the decision of the Appeal Tribunal.

In this appeal, plaintiff argues that he should not have been disqualified for benefits because his employment was terminated after he requested and was granted part-time employment. We disagree.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Ibid.

Furthermore, an appellate court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). We are bound to defer to the Board's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 313 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Campbell, supra, 169 N.J. at 587 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

A critical question here was whether plaintiff left his employment voluntarily or not. The Appeals Examiner heard the conflicting testimony of both plaintiff and Vandermiller and resolved that issue by determining that plaintiff left his employment voluntarily. We are constrained to conclude that this determination had adequate support in the record to withstand appellate scrutiny. As the Appeals Examiner noted, plaintiff was aware that the position he held was full-time and required a rotating schedule that was inconsistent with his stated availability. Although his letter invited further discussion regarding his employment in the hope that an agreement could be reached, it also stated that he had made a personal decision to stay at home to attend to his childcare needs, provided his "new availability" for employment, and acknowledged that his availability was incompatible with full-time employment.

There is, therefore, "fair support in the record" for the determination that plaintiff left his employment voluntarily and without good cause attributable to the work. It follows that the Board's decision to affirm the Appeal Tribunal's decision was not arbitrary, capricious, or unreasonable.

1 Although "good cause" is not defined by the statute, N.J.A.C. 12:17-9.1(e) states in pertinent part, "An individual's separation from employment shall be reviewed as a voluntarily leaving work issue where the separation was for . . . [c]are of children or other relatives[.]"