ARTHUR KRUK v. BOARD OF REVIEW DEPARTMENT OF LABOR and GEVITY HR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2288-08T3

ARTHUR KRUK,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

GEVITY HR,

Respondents.

______________________________

 

Submitted August 17, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Board of Review, Department of Labor, Docket No. 195,946.

Nash Law Firm, LLC, attorneys for appellant (Alan A. Reuter, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

Respondent Gevity HR has not filed a brief.

PER CURIAM

Claimant Arthur Kruk appeals from a final decision of the Board of Review (Board) finding him disqualified from unemployment compensation benefits because he left work voluntarily without good cause attributable to the work, as provided in N.J.S.A 43:21-5(a). We affirm.

Claimant was hired by Gevity HR, d/b/a Penn Capital Management (Penn), as an equity trader on January 27, 2008 where he worked until June 11, 2008. Penn's managing partner Scott Schumacher, Chief Financial Officer Gerald McBride and Senior Trader Scott Cohen testified for the employer. Schumacher testified that, sometime in May 2008, claimant came to his office and "basically gave [] two weeks notice" that he was leaving to assist his parents in the management and operation of their business which was expanding. Claimant's parents owned one hotel in Wildwood and were purchasing a second. Claimant suggested he would "help out a little longer to get [Penn] through the transition." Schumacher began advertising for claimant's replacement. Thereafter, claimant utilized his accumulated "personal time off," exhausting his benefits by June 8, 2008. He did not report to work on June 9, 10 or 11. On June 11, Cohen left a message for claimant that he had exhausted all his compensatory time and that his employment had ended. Claimant admits he told Schumacher his parents were acquiring a second hotel and his assistance in the business was necessary, but denies giving two weeks notice of his intent to terminate his employment.

Claimant applied for unemployment benefits on July 6, 2008. In separate, inconsistent August 4, 2008 determinations, the same Deputy Director for the Division of Unemployment Insurance determined claimant was (1) qualified for benefits as his discharge was for excessive absenteeism, however, his conduct did not qualify as misconduct precluding receipt of unemployment benefits, pursuant to N.J.S.A. 43:21-5(b); and (2) disqualified from receiving benefits because he had voluntarily left his job to accept other employment on July 27, 2008. N.J.S.A 43:21-5(a). Claimant sent a letter to the Appeals Tribunal questioning these inconsistent determinations, which was considered a timely appeal.

Following a telephonic hearing held on October 7, 2008, the Appeals Tribunal concluded claimant had voluntarily resigned his employment and thus N.J.S.A. 43:21-5(a) imposed a disqualification for benefits. Claimant appealed, challenging the factual determinations of the appeals examiner. The Board affirmed the Tribunal's determination and this appeal ensued.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion as the administrative agency's determination carries a presumption of correctness. Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). Whether an employee should be denied unemployment compensation benefits is based on the circumstances of each individual case. Self v. Bd. of Review, 91 N.J. 453, 459-60. (1982).

"We are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations and citations omitted). We overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Gloucester County Welfare Bd., supra, 93 N.J. at 391; Campbell, supra, 39 N.J. at 562. We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). "The basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374.

The governing statute, N.J.S.A. 43:21-5(a), provides that an individual is disqualified for unemployment compensation benefits where he or she "has left work voluntarily without good cause attributable to such work." In order to avoid disqualification, the claimant has the burden of establishing that he left work for good cause attributable to the work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "Good cause means cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed, and the reasons for terminating employment must meet the test of ordinary common sense and prudence." Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal quotations omitted). "Good cause" is defined by regulation as "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).

On appeal, claimant makes sweeping statements challenging the factual determination that he voluntarily terminated his employment. Arguing the Tribunal's findings were mere "assumptions," he asserts entitlement to unemployment benefits because he was fired. Also, citing Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 525 (2006), claimant suggests he was denied proper procedural due process as the matter was not "fully and fairly litigated." Finally, he maintains the employer's failure to appeal the Deputy's determination of eligibility precludes a challenge to an award of benefits. Following our review of these arguments, in light of the record and the principles that guide our review, we are in accord with the Board's decision denying claimant benefits.

First, although claimant alludes to due process deficiencies, he specifies no act or omission that impeded his opportunity to be heard. He suggests the appeals examiner's findings should have been disregarded by the Board because they were biased in favor of the employer. He also contends he did not fully explain his position because he was nervous. These generalities do not support alleged constitutional infirmities. All testimony provided by claimant and the employer was made under oath and subject to cross-examination. N.J.A.C. 1:12-14.2(b). The examination was recorded, ibid., and each party was permitted to present any evidence in support of the position advanced. Further, the appeals examiner allowed claimant to explain his position and question his employer's assertions.

Claimant's reliance on Olivieri is misplaced. In Olivieri, supra, the Court determined the Board's conclusion that plaintiff voluntarily left her employment could not be used by the employer to defeat plaintiff's Law Division action alleging wrongful termination in violation of the New Jersey Conscientious Employees Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. 186 N.J. at 513. Recognizing the procedural limitations of unemployment compensation hearings, the Court concluded that "unemployment compensation proceedings do not afford litigants a full and fair opportunity to litigate factual issues sufficient to warrant collateral estoppel effect." Id. at 529. This statement was not, as plaintiff suggests, an indictment of deficiencies in the procedural due process provided during such proceedings, but a recognition of the informality of administrative proceedings because their specific purpose is to provide speedy and inexpensive determination of unemployment benefit claims. Id. at 526-27.

Also, we are not persuaded by claimant's arguments that the Board's determination was against the weight of the evidence. Our review of the record discerns the Board's finding that claimant was disqualified from unemployment benefits because he voluntarily left his employment was "supported by substantial credible evidence in the record as a whole." Gloucester County Welfare Bd., supra, 93 N.J. at 391 (quotations citation). Cohen and Schumacher testified to a similar line of events: in May, claimant expressed his plans to work for his family business and, in June, exhausted his compensable leave and sick days. Claimant acknowledges raising the issue of his need to work for his family once their business expanded. However, claimant insists he never disclosed his departure was imminent, as he could have continued working at Penn for another year and one-half. The appeals examiner's rejection of claimant's explanation in favor of the assertions of the employer was a credibility determination to which we defer. Thus, we discern no basis to disturb the Board's determination.

 
Affirmed.

(continued)

(continued)

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A-2288-08T3

 

August 27, 2010