DAMIR KADIRIC v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAMIR KADIRIC,

Plaintiff-Appellant,

v.

BOARD OF REVIEW and

PRECISE COLLISION

AND RESTORATION, LLC,

Defendants-Respondents.

_______________________________________

July 31, 2015

Submitted April 20, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 428,202.

Brian D. O'Neill, attorney for appellant (Lisa M. Curry, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeffrey S. Widmayer, Deputy Attorney General, on the brief).

Respondent Precise Collision and Restoration, LLC has not filed a brief.

PER CURIAM

Claimant Damir Kadiric appeals the decision of the Board of Review (Board) reversing the Appeal Tribunal (Tribunal) and finding him ineligible for unemployment benefits. We affirm.

I.

Claimant worked for three and a half years as a collision technician at Precise Collision and Restoration, LLC. His supervisor, George Morrison, was the owner. On April 12, 2013, claimant left work early, did not return until April 15, 2013, and did not work there again.

Claimant subsequently filed for unemployment benefits. The Deputy of the Director of the Division of Unemployment Insurance found claimant was disqualified for benefits because he voluntarily walked off the job without good cause.

Claimant appealed to the Tribunal, which held a telephonic hearing. It heard testimony from claimant, Morrison, and Morrison's employees John T. Hayes, Jr., and Joseph Cahill. The Tribunal reversed the Deputy's determination, finding as follows. On April 12, claimant was having issues with a co-worker because claimant thought he was going to be replaced. Claimant became upset and cursed as he was walking out to go to a medical appointment. On April 15, claimant reported to work with a note from his doctor, but was told by his employer that he no longer had a job because he had walked out on April 12. The Tribunal found claimant left work early on April 12 because he was upset with a coworker and because he had a medical appointment. However, it also concluded this did not constitute leaving the job voluntarily because claimant left "in a huff."

The employer appealed to the Board, which reversed the Tribunal's decision. The Board affirmed the Tribunal's findings of fact, but found four additional facts. As a result, the Board concluded claimant left work voluntarily without good cause, rather than "in a huff." Claimant appeals the Board's December 6, 2013 order.1

II.

We must hew to our limited standard of review. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the 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. (citation omitted). Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009).

As noted above, the Board reached different findings and conclusions than the Tribunal. We have explained that the Board is "the highest decision-making entity in the agency," and is authorized "to engage in a plenary, de novo review of the evidentiary record," to "make findings independent of those made on the Appeal Tribunal level," and "to make different credibility assessments where the record is open to competing interpretations." Messick v. Bd. of Review, 420 N.J. Super. 321, 325-26, 330 (App. Div. 2011). "Because we are required to defer to [the Board's] technical expertise, its superior knowledge of its subject matter area, and its fact-finding role, 'if [its] factual findings are supported by sufficient credible evidence, courts are obliged to accept them.'" Id. at 325 (citations omitted) (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

Claimant asserts the four additional facts found by the Board were not supported by the record. However, "[a]fter a consideration of the entire record, including the testimony and the reasonable inferences to be drawn therefrom, we are satisfied that the Board's factual findings were substantially supported[.]" Pedalino v. Bd. of Review, 83 N.J. Super. 449, 454 (App. Div.), certif. denied, 43 N.J. 129 (1964); see also Mullarney v. Bd. of Review, 343 N.J. Super. 401, 407 (App. Div. 2001).

First, the Board found on April 12, claimant stated he was quitting as he was leaving work. Claimant denied saying that. However, claimant did testify that he said "I can't work like this anymore," and "I'm leaving." Morrison testified claimant said "I'm the f*ck out of here" and "I'm F'ing done. And I'm done with this place. I don't need to be here anymore." Morrison also testified claimant then cursed at him, threw his work keys on Morrison's desk, and stormed out. Likewise, Hayes testified that claimant saw him working on a car, said "F this. I'm no longer needed here, I'm outta here. I F'ing quit." Cahill testified claimant saw Hayes working on a car, and said, "That's it. I've had enough. F this shit and I'm outta here." Accordingly, the Board reasonably found claimant "verbalized his intention to quit prior to leaving the premises."

Second, the Board found that claimant on April 12 did not make his employer aware he was leaving to see a doctor. Claimant testified he told Morrison he had a doctor's appointment, and asked for time off. However, Morrison and Cahill testified claimant did not say that he had a medical appointment. The Board could rely on their testimony.

Third, the Board found that on April 13, claimant did not report to work as scheduled, and did not call to report his absence. Morrison testified claimant was supposed to work April 13, but did not return to work until April 15. As neither claimant nor Morrison testified claimant called to say he would be out on April 13, the Board could reasonably infer he did not call.

Fourth, the Board found the employer did not replace or discharge claimant. Claimant testified when he returned on April 15, he provided a doctor's note that he was unable to do any lifting. Morrison responded "[y]ou don't have a job here anymore," and fired him. Morrison testified he had not replaced claimant with Hayes, and never fired him or said he was fired. Indeed, Morrison testified that, had claimant calmed down and returned on April 12, Morrison would have let him go back to work. Morrison further testified that when claimant came in April 15, he was not wearing his work clothes, and just came to hand in a doctor's note. The Board could reasonably conclude claimant was neither replaced nor discharged, and that he severed the employment relationship himself.

Courts give "'due regard to the opportunity of the one who heard the witnesses to judge [] their credibility.'" Makutoff v. Bd. of Review, 427 N.J. Super. 218, 223 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 656 (1999)). Here, the Tribunal found claimant's testimony was "more credible than the employer" because the employer's witnesses gave testimony that "was almost identical, like the witnesses were coached prior to the hearing as to what to say." However, the testimony of the employer's witnesses was not identical on the key issue of what claimant said on April 12. Moreover, it is not necessarily suspicious that witnesses to the same event testify similarly. Further, the Tribunal believed some of the employer's witnesses' testimony, specifically that claimant became upset and cursed, and was having issues with Hayes because he thought Hayes was taking his job. In those circumstances, we cannot say the Board acted arbitrarily, capriciously, or unreasonably in making different credibility assessments than the Tribunal, or in finding the four additional facts based on the testimony of the employer's witnesses.

III.

Based on these facts, we uphold the Board's conclusion that claimant is disqualified from receiving unemployment benefits. The Unemployment Compensation Law, N.J.S.A. 43:21 1 to 24.30, provides that "[a]n individual shall be disqualified for benefits" if "the individual has left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21 5(a).2 If claimant resigned "for 'good cause attributable to [the] work,' he is eligible for benefits, but if he left for personal reasons, however compelling, he is disqualified under the statute." Utley v. Bd. of Review, 194 N.J. 534, 544 (2008) (quoting N.J.S.A. 43:21 5(a)).

By contrast, if claimant was discharged by his employer for unsatisfactory work performance, he is eligible for benefits. N.J.A.C. 12:17-10.6. Even if he was discharged for simple misconduct, such as unauthorized absences or insubordination, he is eligible for benefits after eight weeks of unemployment. N.J.S.A. 43:21-5(b); N.J.A.C. 12:17-10.1(a), -10.2, -10.5.

Here, claimant claims there was no evidence he voluntarily resigned. He admits he left work early on April 12, but claims that because "he was angry and left in a huff," this case is on all fours with Savastano v. Bd. of Review, 99 N.J. Super. 397 (App. Div. 1968).

In Savastano, an employee argued with a coworker, left work early, returned the next day, and found he had been replaced. Id. at 399. We observed

Employees frequently leave work temporarily for some fleeting physical or mental irritation, or "in a huff" occasioned by one or more of the frustrations attending commercial life, without intending to quit. Although such an individual may be said to have left work voluntarily and without good cause attributable to the work, thus engaging in conduct which might justify a discharge by the employer, nevertheless such a party may not be said to have "left work" in the meaning of having severed his employment relationship with an intent not to return.

[Id. at 400.]

We ruled that whether an employee quit or was fired "depends upon the facts of each particular case" and "is to be determined by the Board upon an analysis of the evidence and specific findings of fact supportive of its conclusion." Id. at 400-01. We remanded to the Board to determine "the critical questions," including "what, if anything, did [claimant] say when he left"; "was he prepared to resume work when he returned the following day"; "did the employer sever the employment relationship by the hiring of a permanent replacement," and "did claimant quit or was he discharged?" Id. at 400.

Here, the Board answered those critical questions. The Board found claimant "verbalized his intention to quit prior to leaving the premises" on April 12, and "failed to report or call the following day." The testimony also indicated claimant was unprepared to resume work on April 15. The Board further found the "employer did not replace or discharge the claimant," and "it was claimant who severed the employment relationship" by quitting. Thus, Savastano is distinguishable.3

Claimant references the regulation governing "[d]ischarge or suspension for unauthorized absence," which provides that "[a]n unauthorized absence for five or more consecutive work days may constitute job abandonment[.]" N.J.A.C. 12:17-10.2(c) (citing N.J.A.C. 12:17-9.11). However, "[i]t is important to distinguish between the kind of absence from work that justifies firing by an employer and the kind that demonstrates an employee's intention to quit." Garcia v. Bd. of Review, 191 N.J. Super. 602, 608 (App. Div. 1983) (citing Savastano, supra, 99 N.J. Super. at 400-01). Here, the Board properly found claimant verbalized his intention to quit when he stormed out, so an absence of five days was not required. Cf. id. at 609 (finding the "claimant's failure to communicate with her employer does not necessarily reflect an intention to quit her job").

IV.

Claimant now contends it violates public policy, the Law Against Discrimination, and N.J.A.C. 12:17-9.3 to deny unemployment benefits to an employee who left work to seek medical care for a covered disability. However, there is no indication claimant raised those arguments before the Tribunal or the Board.

"'Our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither is the case here. Thus, so claimant's new arguments are "properly dismissed." Zaman v. Felton, 219 N.J. 199, 226 (2014).

Affirmed.

1 Subsequently, the Tribunal affirmed the Director's determination that claimant was required to refund $19,602 in benefits he received.

2 "'[G]ood cause attributable to such work' means a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17 9.1(b). "'[M]ere dissatisfaction with working conditions'" is insufficient. Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (1983).

3 Claimant also cites Evaul v. Bd. of Educ., 35 N.J. 244 (1961), but that case did not involve unemployment benefits. Id. at 249.