WILLIAM MARTINEZ 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NOT FOR PUBLICATION WITHOUT THE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-1243-12T4

WILLIAM MARTINEZ,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR AND PROFESSIONAL FURNITURE

SERVICES,

Respondents.

_______________________________

July 28, 2015

 

Submitted February 9, 2015 Decided

Before Judges St. John and Rothstadt.

On appeal from Board of Review, Department of Labor, Docket No. 205,033.

Devero Taus LLC, attorneys for appellant (Gregory A. Devero, on the brief).

John J. Hoffman, Acting Attorney General, attorneyfor respondent(Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

William Martinez appeals from a final decision of the Board of Review (Board), disqualifying him from receiving unemployment benefits, in accordance with N.J.S.A. 43:21-5(a), because he left his employment with Professional Furniture Services (PFS) voluntarily, without good cause attributable to the work. Martinez argues he should not be disqualified from receiving benefits because he did not "voluntarily quit" as he was "constructively discharged." He also argues reversal is warranted because PFS withdrew its opposition to his claim and he "was not afforded the opportunity to adequately present his case." The Board responds by arguing that it correctly determined that Martinez was disqualified.

We have considered these arguments in light of our review of the record and applicable principles of law. We remand this matter for reconsideration by the Board.

We recite the facts derived from the record and the matter's lengthy procedural history as necessary to give context to our reasoning.

Martinez began his employment with PFS as a furniture installer in 2005, and separated from his employment on August 24, 2008. He earned fourteen dollars per hour and his hours varied depending on PFS's requirements. Sometimes he worked more than forty hours in a week, sometimes less. He filed for unemployment benefits and was notified in October 2008 he was eligible for those benefits. PFS appealed that determination. A telephonic hearing was scheduled before an Appeals Examiner on September 29, 2008. Only Martinez participated.

During the hearing, Martinez testified as to the reasons he stopped working. He stated he left work because of "discrimination, name calling," which had "been going on for over two years." On his last day, one of his "bosses went off on" him and he then "walked off the job." He described how one of his bosses, Jim Langston, one of the two partners who owned PFS, fired him on that date

[H]e called me a scumbag, he[] called me a spic, Puerto Rican, and then he fired me . . . . [H]e went off on me for no reason. And then he fired me in front of . . . two witnesses. . . . When he fired me he sa[id] "Go home. You're a scumbag. You're fired. I'm tired of your shit."

After Martinez left PFS's building, he received a call from Pete Kunkel, the other owner of the company. According to Martinez, Kunkel stated "You know what? Try to collect unemployment because you just abandoned your job."

The Appeals Examiner attempted to have Martinez clarify whether he left work or was fired. Martinez stated he "left because of the abuse" and when he left he had "tears in [his] eyes" and he was "angry." When asked why his bosses were yelling at him, Martinez made reference to "some texts that [one of the bosses] was receiving from . . . some other co-workers." He did not specify, however, what the texts were about.

Martinez testified there were never any problems in the past with his employment, but that he had been the victim of name calling for two years. However, he explained that he got into "physical fights at work" on at least three occasions with co-workers who called him names. As a result of those fights, he was "fired and rehired by them." He told his employers to talk to the co-workers to make "them stop calling [him] names." He explained his co-workers believed it was acceptable to do so because they heard the bosses calling him names as well. The bosses, however, refused to stop doing so and took no action with other employees.

After Martinez completed his testimony, the Appeals Examiner called PFS and left a message on an answering machine asking PFS for more "specific information regarding [Martinez's] leaving work." He then advised Martinez that if PFS did not return the call, he would only have Martinez's information to rely upon but, if they did, he would contact Martinez the next morning.

The Appeals Examiner wrote to the parties on October 1, 2008, with a determination Martinez was eligible for benefits. In response, on October 21, PFS wrote to the Appeals Examiner who conducted the hearing. The letter was treated as an appeal from the October 1 determination and, as a result, a new hearing was scheduled for January 20, 2009.1 The hearing was held on that date before a different Appeals Examiner. At the second hearing, Kunkel and Langston testified. Martinez did not appear.

Kunkel testified Martinez "left [work] on his own the day he had an argument with [Langston] in the warehouse. He just got up and left." He explained that PFS uses an "on call" system in which its employees called in every night to determine if they were needed the next day. He was not aware of how many hours Martinez worked on an average basis. When asked why Martinez left work on his last day, Kunkel stated "[H]e had a fight with [Langston] . . . that morning, and was asked to return something that he was lent from the warehouse, and his response was [un]ethical." Kunkel was unaware if Martinez ever called in again to find out if he was scheduled to work, but he knew "he never showed back up ever again. He left that morning . . . within the first hour of work. He never completed his day. He just walked out."

The Appeals Examiner then spoke with Langston over Kunkel's cell phone's speaker. Langston explained Martinez left after he attempted to speak with Martinez about a television "that was missing from the warehouse." When Langston approached Martinez, "he got angry, violent and left." The television belonged to an ex-employee and friend who asked to store his television in PFS's warehouse. According to Langston, he told Martinez "I don't want me to argue with you, but you have it, we need it back." Martinez began "screaming at [Langston], threatening [him] and then [Martinez] left." When Martinez left he told Langston he was never coming back, which he stated in "very violent and obscene words."

Langston never heard from Martinez again. Langston stated that Kunkel subsequently left an assignment on the "machine" once for Martinez after he left work. According to both Langston and Kunkel, Martinez did not respond. There were no further assignments for Martinez.

When the Appeals Examiner raised the subject of Martinez's complaint about being called derogatory names, Langston explained

[Martinez] has called us names . . . if not worse. And . . . it was a . . . regular thing with him. So, I mean, we would just . . . defend ourselves or something. And most of the times it was joking . . . . [Martinez is] using that now because he wants to use it to his benefit.

. . . .

I[ am] sure we can get people that . . . said that he has called them names. And . . . in a fun way or in a bad way, we've had arguments with him, . . . we've had great times with [him] and me . . . . We just joke around with him.

Langston denied that Martinez ever came to him "in a serious manner" complaining about co-workers calling Martinez names. He said co-workers calling each other names was not unusual. He stated

[H]e called co-worker[s] name[s]. It was back and forth . . . . Sometimes it's fun and sometimes when they get into arguments about . . . his job [being] hard and . . . somebody is doing something wrong. It might be . . . something . . . while working . . . . But most of the times it was just fun loving stuff. And . . . [Martinez] was part of it . . . . He [called] me or [Kunkel] . . . cracker or whatever . . . we wouldn't care about that.

The Appeals Examiner issued a written decision the day after the hearing finding Martinez was disqualified from receiving benefits "as he left work voluntarily without good cause attributable to [the] work." In his decision, the Appeals Examiner made one finding of fact related to Martinez's departure from PFS. He stated: "The claimant was scheduled to work on [August 27, 2008] but did not report as scheduled and has not contacted the employer since that time." The written decision did not mention any of Martinez's claimed reasons for leaving work.

The Appeals Examiner's decision ignited a three-year procedural imbroglio that culminated in the Board's decision under appeal, which it made without the benefit of additional information it determined necessary to the process. On February 6, 2009, Martinez appealed the Appeals Examiner's determination. On March 31, after considering the appeal, the Board issued a decision remanding the matter back to the Appeal Tribunal because there was a "need for additional testimony from [Martinez], who did not participate in the Appeal Tribunal hearing, and the employer regarding the reason for [Martinez's] separation from employment" (emphasis added).

On May 28, the Appeal Tribunal sent notice scheduling a telephone hearing for June 4, 2009. On the date of the hearing, neither party appeared and the Appeals Examiner issued a new decision, which first noted that PFS participated in the January hearing and that Martinez failed to appear then or on June 4. The decision did not make any reference to Martinez's appearance and PFS's failure to appear at the September 2008 hearing. However, the decision also noted that Martinez's "attorney contacted the Appeal Tribunal on [June 3, 2009] and indicated that he was unable to establish contact with the claimant." The decision concluded by noting that because there were "no additional facts," the Appeal Tribunal adopted its January 2009 decision without amendment.

The next week, Martinez's attorney filed an appeal of the Appeal Tribunal's decision. In counsel's June 11, 2009 letter to the Board, he explained that Martinez and he were in fact in contact, Martinez and he both spoke to the Appeals Examiner on June 4, counsel had initially asked that the matter be adjourned but then advised the Appeals Examiner his client would be self-represented. Despite those events, the matter was neither rescheduled nor was Martinez allowed to participate in the hearing as scheduled, even though he called in at 8:30 a.m. to participate. Accordingly, on June 22, 2009, the Board issued a decision finding Martinez had "failed to participate for reasons which constitute good cause" and ordered the matter remanded again to the Appeal Tribunal for a hearing.

On July 31, 2009, the Appeal Tribunal issued a new notice scheduling the matter before a third Appeals Examiner on August 11, 2009. Neither party participated in the hearing on the scheduled date. The Appeals Examiner issued a decision dismissing PFS's appeal and restoring the Deputy Director's original determination finding Martinez eligible for benefits. The Appeals Examiner did so because she understood the Board remanded the matter for "rehearing and a new decision." The Appeals Examiner concluded

As all previous Appeals Tribunal decisions were set aside" and "[n]o new testimony was taken as the appellant employer did not participate in the duly scheduled hearing on [August 11, 2009] . . . . [T]here was no new evidence presented to upset the findings of the Deputy [to warrant disturbing the original determination].

The Board, however, "on its own motion" reviewed the Appeal Tribunal's determination, vacated it, reinstated the June 4, 2009 determination that Martinez was disqualified, and again ordered that a new hearing be held. It did so because it found that the Appeals Examiner incorrectly believed that the Appeal Tribunal's earlier decisions disqualifying Martinez had been vacated because the Board remanded the matter for additional testimony. Accordingly, the Appeals Examiner's dismissal of PFS's appeal was "improper."

In accordance with the Board's decision, the Appeal Tribunal issued a new notice of hearing before the second Appeals Examiner for April 21, 2010. The hearing date was later adjourned to November 29, because of Martinez's counsel's unavailability. Once again, however, neither party participated in the hearing and the Appeals Examiner issued a new opinion on December 1, 2010, again relying on the January 21, 2009 opinion finding Martinez disqualified.

Martinez appealed to the Board, which determined that "proper notice of the [November 29, 2010] hearing was not received." The Board ordered another hearing, which the Appeal Tribunal scheduled for October 19, 2011, and which it later adjourned to April 4, 2012 and again to August 23, 2012, due to Martinez's attorney's schedule. It was scheduled to be heard by a third Appeals Examiner.

On the scheduled date, neither party appeared, no testimony was taken, and the Appeals Examiner issued a decision, dated August 24, 2012, once again adopting the January 21 and June 4, 2009 decisions reversing the Deputy Director and finding Martinez disqualified for benefits. In her written decision, the Appeals Examiner again noted that the employer appeared on January 20, 2009, but she too made no mention of Martinez's appearance in September 2008.

Martinez appealed again to the Board, which affirmed the Appeal Tribunal's decision on October 12, 2009, because Martinez failed to appear for the scheduled hearing and there was no showing of good cause for his failure or any request for an adjournment. As a result, the Board determined "there [was] no valid ground for a further hearing."

Martinez filed his appeal from the Board's decision in November 2012. In February 2013, PFS advised us that it "does not intend to oppose" Martinez's appeal, it "withdraws [its] opposition to [his] application for . . . benefits [and] . . . withdraws from the appeal process."

We begin our review of the Board's October 12, 2012 final agency decision by acknowledging the settled principles that guide us. Our review of "administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not disturb the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid. "If the Board's factual findings are supported by sufficient credible evidence, courts are obliged to accept them." Ibid. (citation and internal quotation marks mitted). "We [also] defer to an agency's interpretation of its own regulations unless 'plainly unreasonable.'" Frazier v. Bd. of Review, 439 N.J. Super. 130, 134 (App. Div. 2015) (quoting In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). "[W]hen [the] agency's decision is plainly mistaken, however, it is entitled to no such deference and must be reversed in the interests of justice." Ibid. (alterations in original) (citation and internal quotation marks omitted).

We perform our appellate function cognizant of the unique role of the Board in the process for adjudicating disputes about unemployment benefits. As we have previously observed

The procedures governing hearings of claims for unemployment compensation, as conducted by the Deputies, the Appeal Tribunal, and the Board of Review are exempt from many of the Administrative Procedure Act's requirements and the rules adopted pursuant thereto for adjudicating contested cases, N.J.A.C. 1:1-1 to -21. See [Unemployed-Employed Council, Inc. v. Horn, 85 N.J. 646, 662 (1981)].

The regulations governing the internal appeals process in unemployment compensation proceedings clearly establish the Board of Review's authority to engage in a plenary, de novo review of the evidentiary record; i.e., to make findings independent of those made on the Appeal Tribunal level, and to conduct further evidentiary hearings. See N.J.A.C. 12:20 (Appendix, 1:12-14.3); Horn, supra, 85 N.J. at 653-54.

It is a regime markedly different from agency-head reviews of decisions rendered in contested cases by administrative law judges assigned by the Office of Administrative Law.

[Messick v. Bd. of Review, 420 N.J. Super. 321, 325-26 (App. Div. 2011).]

As noted in its decision in this case, the Board adopted the finding of the Appeal Tribunal in reliance upon N.J.S.A. 43:21-5(a), a section of "New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, [which] 'provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment.'" Frazier, supra, 439 N.J. Super. at 134 (quoting Utley v. Bd. of Review, 194 N.J. 534, 543 (2008)). The Act disqualifies a person from benefits

[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment . . . and has earned in employment at least ten times the individual's weekly benefit rate . . . .

[N.J.S.A. 43:21-5(a).]

A claimant seeking unemployment compensation benefits has the burden of establishing that he or she left work for good cause attributable to such work and not voluntarily. N.J.A.C. 12:17-9.1(c). "'[G]ood cause attributable to such work'" requires "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). Thus, an employee who quits a job without a sufficient work-related reason is disqualified for benefits under N.J.S.A. 43:21-5(a). See Self v. Bd. of Review, 91 N.J. 453, 457 (1982).

"'Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (quoting Medwick v. Review Bd., 69 N.J. Super. 338, 345 (App. Div. 1961)). An employee's "decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Ibid.

Applying these standards, we cannot perform our appellate function because we are at a loss as to whether the Board ever considered Martinez's September 2008 testimony or how it determined from the Appeal Tribunal's January or June 2009 findings whether Martinez left work because of ethnic-based discriminatory harassment or if he was fired. The ultimate issue for the Board was whether Martinez had good cause attributable to his work for quitting. As noted, mere dissatisfaction with the conditions of employment does not suffice, Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997), but if such conditions were unlawful, it would. Sanchez v. Bd. of Review, 206 N.J. Super. 617, 621 (App. Div. 1986). Ethnic based harassment, if it occurred, may qualify as good cause, but it must be sufficiently severe to justify a person's abandonment of their employment. "Intentional harassment of an employee . . . is an abnormal working condition and constitutes good cause for leaving work voluntarily." Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 587 (App. Div. 1974) (affirming award of benefits where supervisor continuously harassed and mistreated the claimant, and frequently called her at home to scold her). We have approved benefits where a claimant was subject to sexual harassment and racially prejudicial and gender-biased comments. Doering v. Bd. of Review, 203 N.J. Super. 241, 246 (App. Div. 1985). On the other hand, "on-the-job reprimands" even if "public and arguably improper and humiliating," do not justify a voluntary quit. Gerber v. Bd. of Review, 313 N.J. Super. 37, 40 (App. Div. 1998).

Despite the unique role of the Board in these matters, we are constrained to remand to the Board for more specific findings regarding the critical factual disputes in this case. See, e.g., In re Issuance of Permit by Dep't of Envt'l Prot. to Civa-Geigy Corp., 120 N.J. 164, 173 (1990) ("When an agency's decision is not accompanied by the necessary findings of fact, the usual remedy is to remand the matter to the agency to correct the deficiency."). As we are remanding the matter, the Board should reconsider its conclusion in light of Martinez's September 29, 2008 testimony and PFS's withdrawal of its opposition to Martinez being deemed eligible for benefits.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 In contravention of Rules 2:6-1 and 2:6-3, neither party included either letter in their appendix or a copy of the Deputy Director's initial determination. Also, despite the appeal being filed past the ten day deadline for appeals, the second Appeals Examiner ultimately accepted PFS's explanation that it was confused by the fact that a wage and hour audit was being conducted by the Division of Unemployment Benefits, which delayed PFS's filing of the appeal.