ANTHONY DEFILIPPO 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NOT FOR PUBLICATION WITHOUT THE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

ANTHONY DEFILIPPO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and DAVANTI DIGITAL MEDIA,

LLC,

Respondents.

__________________________________

October 14, 2015

Submitted February 3, 2015 Decided

Before Judges Messano and Sumners.

On appeal from the Board of Review, Department of Labor, Docket No. 403,061.

Anthony DeFilippo, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Nicole M. DeMuro, Deputy Attorney General, on the statement in lieu of brief).

Christopher Pisacane (Sichenzia Ross Friedman Ference, LLP), attorney for respondent Davanti Digital Media, LLC (Mr. Pisacane, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Anthony DeFilippo appeals from an August 6, 2013, Board of Review (Board) final decision, which disqualified him from receiving unemployment benefits because he left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a). We affirm.

The record reveals that DeFilippo began working at Davanti Digital Media, LLC, a social media marketing firm, as a sales representative on February 1, 2011. He received an initial base annual salary of $30,000, plus a twenty-five percent commission on all of his personal sales. Sometime in May 2001, he was promoted to sales manager, and his base annual salary increased to $40,000, with a commission increase to forty percent on his personal sales. In addition, he received a five percent commission, or "override" on all sales made by his department.

Almost a year later, on June 1, 2012, DeFilippo was returned to his sales representative position because the company decided it was not necessary to have a manager position due to a decrease in the number of sales representatives employed. DeFilippo's base salary and commission on personal sales remained the same. However, his five percent override commission was discontinued, replaced with a five percent commission on the setup of newly contracted sales accountsand five percent commission on the first month of any deal he assisted another sales representative in closing. DeFilippo also contended that he was losing commission income due to chargebacks, which are the cancellation of contracts or the failure to bring contracts to final execution, caused by the company's downturn and loss of sales representatives. Lastly, DeFilippo was also required to work on Saturdays, as when he was initially hired as a sales representative. As a sales manager he only worked when necessary.

On or about August 9, 2012, DeFilippo advised Davanti that he was resigning from employment. While DeFilippo believes his last day was August 10, Davanti's records provide that August 17 was his last day at work. DeFilippo did not have another job after his resignation, and filed for unemployment benefits on August 19.

The Deputy Director, Division of Unemployment Insurance, determined on September 18 that DeFilippo was eligible for benefits. The Appeals Tribunal rejected Davanti's appeal and upheld the Determination of the Deputy on June 20, 2013; finding that DeFilippo was not disqualified for benefits under N.J.S.A. 43:21-5(c) because his resignation was for good cause as his new position's compensation and hours were substantially different than his original position. The Board agreed with the Appeal Tribunal's determination that DeFilippo was not disqualified under N.J.S.A. 43:21-5(c) but for a different reason. The Board determined that the sales representative position that DeFilippo resigned from was similar to the sales representative position that he was originally hired for, and thus, he did not refuse an offer of new work. Even so, the Board considered DeFilippo's claim under N.J.S.A. 43:21-5(a), which denies benefits where a person "has left work voluntarily without good cause attributable to" his work, and determined he was disqualified from receiving benefits. Specifically, the Board determined that there was no credible evidence to support DeFilippo's decision to leave Davanti on the assumption that he would incur a major financial setback due to the loss of his five percent override commission and requirement to work on Saturdays. The Board also found that the policy of reducing commissions due to chargebacks was not new and had been in effect when DeFilippo was initially hired.

On appeal, DeFilippo cites Johns-Manville Products Corp. v. Board of Review, 122 N.J. Super. 366 (App. Div. 1973), to support his contention that the Board erred because the facts demonstrate his compensation was substantially reduced through his commission structure change and having to work on Saturdays. He further contends that the Board's decision fails to refer to the evidence relied upon to reach its findings.

In opposition, the Board and Davanti argue that the Board's decision to deny benefits is amply supported by credible evidence in the record. More specifically, Davanti points out that DeFilippo's $5736 average monthly gross earnings for the three months when he returned to the sales representative position was slightly higher than his $5488 average monthly gross earnings for his prior year as sales manager. In the alternative, Davanti contends DeFilippo is also disqualified from receiving benefits under N.J.S.A. 43:21-5(c).

We exercise a limited role in reviewing agency decisions involving unemployment benefits. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Thus, the issue is whether the factual findings are supported by sufficient credible evidence. Ibid. In making that determination, we also give due regard to the agency's credibility determinations. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).

We also afford some deference to, although we are not bound by, an agency's interpretation of its governing statute and its own regulations. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady, supra, 152 N.J. at 210), certif. denied, 176 N.J. 281 (2003). That aside, we do not simply act as a rubber stamp of the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We may intervene when the agency's action is arbitrary, capricious, or unreasonable, or "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

A claimant is not entitled to unemployment benefits unless he meets the statutory conditions of eligibility, and is not otherwise disqualified. Bocchino v. Bd. of Review, 202 N.J. Super. 469, 473 (App. Div. 1985) (citing Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 454-55 (1953)). Usually, the burden is on the claimant to demonstrate his or her eligibility for unemployment benefits. Brady, supra, 152 N.J. at 218. As noted, the statue in question here, N.J.S.A. 43:21-5(a), provides that a person is disqualified from receiving unemployment benefits when he or she leaves work voluntarily without good cause attributable to the work.

Applying these standards, we discern no basis to disturb the Board's decision to deny DeFilippo unemployment benefits. We disagree with DeFilippo's contentions and his reliance upon Johns-Manville. In that case, we determined that the claimant's down-graded position reducing his hourly wage by twenty-five percent constituted good cause for leaving work under N.J.S.A. 43:21-5(a). Johns-Manville, supra, 122 N.J. Super. at 369-70. Here, DeFilippo does not demonstrate he resigned because of good cause related to the work because he failed to prove he suffered a wage loss due to a job reassignment. The Board's determination that DeFilippo is disqualified for benefits under N.J.S.A. 43:21-5(a) because he voluntarily left his employment without good cause is based upon credible evidence in the record that his earnings did not suffer by his return to the sales representative position. Given this conclusion, we need not address Davanti's contention that DeFilippo is also disqualified for benefits under N.J.S.A. 43:21-5(c).