RYAN HAKIM v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4579-15T1


RYAN HAKIM,

        Appellant,

v.

BOARD OF REVIEW and TWO
GUYS CATERING, LLC,

     Respondents.
_______________________________

              Submitted December 13, 2017 – Decided December 29, 2017

              Before Judges Nugent and Geiger.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 079,991.

              Bell, Shivas & Fasolo, PC, attorneys for
              appellant (Joseph J. Bell and Brian C.
              Laskiewicz, on the briefs).

              Christopher S. Porrino, Attorney General,
              attorney for respondent Board of Review
              (Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Emily M. Bisnauth, Deputy
              Attorney General, on the brief).

              Respondent Two Guys Catering, LLC, has not
              filed a brief.

PER CURIAM
     Appellant Ryan Hakim (claimant) appeals from the Board of

Review's April 26, 2016 final agency decision rejecting his claim

for unemployment benefits.         The Board upheld the Appeal Tribunal's

decision that claimant was ineligible for unemployment benefits

because he voluntarily left his job without good cause attributable

to his work.      We affirm.

     Two Guys Catering, LLC, trading as The Pantry, employed

claimant as its manager from October 5, 2014 through October 3,

2015.1 When his employment with The Pantry ended, claimant applied

for unemployment benefits.          The Deputy Director denied his claim,

finding that he left work voluntarily when he walked out following

an argument with the owner.

     Claimant      filed    an    administrative        appeal.     Following      a

hearing,    the    Appeals    Examiner        also    determined   claimant     was

ineligible for unemployment benefits because he voluntarily left

his job without good cause attributable to his work.                      Claimant

appealed    to    the   Board,    which    affirmed     the   Appeal   Tribunal's

decision.     This appeal followed.

     During      the    hearing   before      the    Appeal   Tribunal,   claimant

explained the reason he left work:

            We had a staff meeting. Me, [the owner] and
            another employee and we were going over some

1
  The record contains various dates for claimant ranging from
October 2 through October 5, 2015.

                                          2                                A-4579-15T1
             things we had some concerns about and [the
             owner] didn't like me to have a say regarding
             the business, the hours changing and certain
             other things of the business. He told me to
             get out. He told me I was no longer welcome
             there and I left.

     Claimant also testified that he had received no written or

verbal warnings during the course of his employment.      He gave no

other testimony about his reason for leaving, and he called no

other witnesses.

     The owner testified to a different version of what took place

at the meeting and the reason claimant left work:

             Because we called him out on some of his
             laziness and he didn't like that and he ripped
             his shirt off and walked out the door.       I
             texted him and asked [if he] was coming back
             to work. I got no response. Two days later
             he came in and he told me he wasn't happy
             working here.

     After hearing the owner testify, claimant testified again.

He denied walking out and reiterated that the owner told him to

get out, he was no longer welcome there.       Claimant acknowledged

the owner sent him a text message the next day and further

acknowledged he returned two days later and said he was not happy.

Claimant explained that he returned "after [being] attacked for

[his] laziness."     Claimant reiterated the owner told him not to

come back.    He added, "I wouldn't want to go back to a place where

I wasn't welcome to."


                                   3                          A-4579-15T1
     In reply, the owner denied ever telling claimant not to come

back.     The owner testified, "[h]is job was here.            He informed me

he wasn't happy working here."        The Appeals Examiner resolved the

disputed testimony against claimant.          The Appeals Examiner found

"claimant voluntarily left his job when he became upset because

the owner mentioned his laziness.         The owner['s] intention was not

to terminate employment.        The claimant chose to walk out."            The

Appeals    Examiner   further    determined     there    was    no    evidence

presented in the case that claimant's termination was imminent,

and the owner's discussing claimant's laziness "was not so severe

to cause him to leave employment to become unemployed."

     The Appeals Examiner concluded:

            The burden of proof is on the claimant to
            establish good cause attributable to the work
            for leaving.    The reason for leaving must
            relate directly to his employment, which was
            so compelling as to give him no choice but to
            leave his employment.    That burden has not
            been met.

     The central theme of claimant's appeal is "[t]he Appeal

Tribunal and Board of Review failed to give appropriate weight to

[claimant's]    testimony   clearly       establishing   that    he   did   not

voluntarily leave employment, which directly contradicts any claim

by the [e]mployer to the contrary."          Relying on this assertion as

a   factual    predicate,   claimant      reasons   that   "[s]ince      [his]

departure from . . . employment was involuntarily based upon

                                      4                                A-4579-15T1
circumstances where he was clearly not welcome on the premises,

and directly attributable to the actions of the [e]mployer, the

decisions    .   .   .   to   disqualify    [claimant]   from   receiving

unemployment benefits are erroneous and should be reversed."

     Alternatively, claimant argues this matter should be remanded

because the hearing was incomplete.        Claimant cites the references

in the record to another witness and an email and asserts that

neither the Appeals Tribunal nor the Board "made a request or

demand for the production of such evidence."

     The scope of our review of the Board's final decision is

limited.    See In re Stallworth, 
208 N.J. 182, 194 (2011).        We will

not disturb the Board's ruling unless it is arbitrary, capricious,

or unreasonable. Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997).

We accord a "strong presumption of reasonableness" to the agency's

exercise of its statutorily delegated responsibilities.           City of

Newark v. Nat. Res. Council, 
82 N.J. 530, 539, (1980).          The burden

of showing that the agency's action was arbitrary, unreasonable,

or capricious rests upon the appellant.          See Barone v. Dep't of

Human Servs., 
210 N.J. Super. 276, 285 (App. Div. 1986), aff'd,


107 N.J. 355 (1987).

     When we "review[] the factual findings made in an unemployment

compensation proceeding, the test is not whether [we] would come

to the same conclusion if the original determination was [ours]

                                    5                              A-4579-15T1
to make, but rather whether the factfinder could reasonably so

conclude upon the proofs."      Brady, 
152 N.J. at 210 (quoting

Charatan v. Bd. of Review, 
200 N.J. Super. 74, 79 (App. Div.

1985)).   We "must . . . give due regard to the opportunity of the

one who heard the witnesses to judge their credibility."       Logan

v. Bd. of Review, 
299 N.J. Super. 346, 348 (App. Div. 1997)

(citation omitted).   For these reasons, "[i]f the factual findings

of an administrative agency are supported by sufficient credible

evidence, [we] are obliged to accept them."   Self v. Bd. of Review,


91 N.J. 453, 459 (1982) (citation omitted).   For the same reasons,

we also give due regard to the agency's credibility determinations.

Logan, 
299 N.J. Super. at 348 (citing Jackson v. Concord Co., 
54 N.J. 113, 117 (1969)).

     A claimant is disqualified for unemployment benefits if he

or she left work "voluntarily without good cause attributable to

such work[.]"    
N.J.S.A. 43:21-5(a).   Personal reasons, no matter

how compelling they may be, do not establish "good cause."     Utley

v. Bd. of Review, 
194 N.J. 534, 544 (2008).     A claimant has the

burden of proving such good cause attributable to the work. Brady,


152 N.J. at 218.

     In the case before us, claimant and his employer presented

contrasting versions of the circumstances that caused claimant to

leave his job.   The disputed facts and credibility determinations

                                 6                           A-4579-15T1
were resolved in favor of the employer.     Had they been determined

to be in a state of equipoise, claimant would have nonetheless

failed to sustain his burden of proving that he left work as the

result of good cause attributable to the work.

     Claimant's argument that the case should be remanded is

unpersuasive.    He has offered no explanation as to why he did not

present at the hearing the evidence he now seeks to present.         He

certainly has not suggested that he was somehow prevented from

presenting such evidence.

     Claimant's remaining arguments are without sufficient merit

to warrant further discussion.      R. 2:11-3(e)(1)(E).   The Board's

decision is supported by sufficient credible evidence on the record

as a whole.   R. 2:11-3(e)(1)(D).

     Affirmed.




                                  7                           A-4579-15T1