TOMMY CAO v. BOARD OF REVIEW et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2815-04T52815-04T5

TOMMY CAO,

Claimant-Appellant,

v.

BOARD OF REVIEW and

BALLY'S PARK PLACE, INC.,

Respondents-Respondents.

 

Submitted: November 16, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the final administrative decision of the Board of Review, Docket Number 46,966.

Tommy Cao, appellant, pro se.

Peter C. Harvey, Attorney General, attorney for respondent Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

No brief was filed by respondent Bally's Park Place, Inc.

PER CURIAM

Claimant Tommy Cao appeals from a final administrative decision issued by respondent Board of Review on January 13, 2005, denying his application for unemployment compensation benefits. We affirm.

Claimant was employed by Caesar's Atlantic City from July 23, 2001, where he began full-time in the promotions department and then eventually became a part-time dealer. His last day of work with Caesar's was on February 27, 2004, when he was informed there was no further work available. Claimant also worked for respondent Bally's Park Place, Inc. from December 1, 2003, as a part-time casino cage/parimutuel cashier on the graveyard shift. He last worked for Bally's on March 1, 2004, and then failed to report on his scheduled work days of March 3, March 4, and March 5, 2004; he was terminated by letter dated March 17, 2004, for failure to report to work.

On February 29, 2004, claimant filed a claim for unemployment compensation benefits based on his termination by Caesar's; payments began. On September 2, 2004, a Deputy Director of the Division of Unemployment Insurance issued a notice of determination finding claimant disqualified for benefits from February 29, 2004, pursuant to N.J.S.A. 43:21-5(a), on the basis that he had not been "unemployed" at the time he applied for benefits, and had left his job with Bally's voluntarily without good cause attributable to his employment. Claimant was also notified that he was liable to repay $5,802 in benefits that he had collected.

Claimant appealed that determination, contending that he had left his job with Caesar's because his employer had reduced his status from full-time to part-time work due to lack of work and was thereby eligible for benefits. A hearing was conducted before the Appeal Tribunal on November 24, 2004.

Claimant testified that he began working with Caesar's on July 23, 2001, where he started as a promotional representative. Eventually he was promoted to the position of dealer. Claimant stated he initially worked as a full-time dealer, and then was transferred to part-time status because of lack of work. He explained that he stopped working at Caesar's on February 27, 2004, because "they told me that . . . I had to leave because they didn't have any more work for me." He testified that it was "management" who told him that, although he was unable to recall the name of the person who so informed him. After leaving Caesar's, claimant obtained a part-time job with Greyhound Bus Lines. However, at the time of his termination with Caesar's, claimant was still employed by Bally's.

Lynn Carrington, a Shift Supervisor for Bally's testified that claimant began his employment with Bally's on December 1, 2003, and last worked on March 1, 2004. Carrington explained that Caesar's and Bally's are owned by Caesar's Entertainment, and that claimant had a part-time job with each division. Carrington stated that even though he was scheduled to work, claimant did not report for work at Bally's on three consecutive days from March 3 through March 5, 2004. Carrington testified that Bally's considered claimant's failure to report to work to be an abandonment of his position, and a termination of employment letter was sent to him on March 17, 2004.

On November 29, 2004, the Appeal Tribunal issued its decision, finding claimant disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) as of February 29, 2004, on the basis that he was not unemployed at the time Caesar's terminated him, and he had left work with Bally's voluntarily without good cause attributable to such work. The Appeal Tribunal also determined that claimant was liable to refund the sum of $5,802 in benefits paid during the disqualification period. In so concluding, the Appeal Tribunal made the following factual findings:

The claimant was last employed with [Bally's] as a casino cage person and dealer from 12/01/2003 through 02/27/2004.

Although the claimant was scheduled to work on 03/03/2004 through 03/05/2004 on the graveyard shift, he did not report for work or call the employer on those days. Since the employer did not hear from the claimant, a termination letter was sent on 03/17/2004.

The claimant left work because he no longer wished to work the graveyard shift. Although he believed it was adversely affecting his health, the claimant did not consult a doctor.

On administrative appeal to the Board of Review, claimant contended that his "unemployment compensation came from Caesars in Atlantic City and not with Bally's Park Place." The Board issued a final decision on January 13, 2005, adopting the findings and conclusions of the Appeal Tribunal.

On appeal, claimant argues that he was not eligible for unemployment benefits from Bally's because he did not have at least twenty base weeks with that employer, and that his unemployment claim and benefits should thereby be based on his employment with Caesar's, where he had been a full-time dealer, had been reduced to working as a part-time dealer, and then had left work because he was told by Caesar's management that there was no more work for dealers. Stated differently, claimant contends that the hearing before the Appeal Tribunal improperly focused on his employment with Bally's, when it should have centered on his employment with Caesar's.

After analyzing the record in the light of the arguments advanced by the parties, we conclude that the issues presented by claimant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3e(1)(D) and (E).

Assuming claimant was involuntarily terminated from his part-time dealer job with Caesar's on or about February 27, 2004, at that point he was still employed by Bally's as a cashier; therefore, he was not "unemployed" when he filed his claim for benefits on February 29, 2004. Thereafter, claimant failed to report to his job at Bally's for three consecutive days from March 3, through March 5, 2004 and was terminated. Therefore, the Board of Review properly focused on claimant's voluntarily leaving his employment with Bally's, and correctly disqualified him from unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a). Brady v. Board of Review, 152 N.J. 197, 218 (1997).

Claimant failed to establish that he had left his employment with Bally's for good cause. Although he complained that his health had been adversely affected by working during the graveyard shift, claimant produced no evidence to substantiate that contention. See Domenico v. Board of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (noting that good cause for leaving employment "must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones").

Claimant is also liable for repayment of benefits incorrectly paid. N.J.S.A. 43:21-16(d); see also Bannan v. Board of Review, 299 N.J. Super. 671, 674-75 (App. Div. 1997).

 
Affirmed.

The record on appeal discloses that the "graveyard shift" runs from 1:00 a.m. until 9:00 a.m.

Although not material to our resolution of this appeal, we note that the referenced February 27 dated is apparently incorrect, as Carrington testified that claimant last worked for Bally's on March 1, 2004.

(continued)

(continued)

7

A-2815-04T5

December 19, 2005