EDWIN CRUZ VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3318-16T3
EDWIN CRUZ,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR and PERSA CONSTRUCTION,
INC.,
Respondents.
___________________________________
Submitted May 3, 2018 – Decided July 9, 2018
Before Judges Haas and Gooden Brown.
On appeal from the Board of Review, Department
of Labor, Docket No. 099,273.
Edwin Cruz, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Aaron J. Creuz, Deputy Attorney
General, on the brief).
Respondent Persa Construction, Inc., has not
filed a brief.
PER CURIAM
Appellant Edwin Cruz appeals from a January 25, 2017 decision
of the Board of Review (Board). The Board affirmed the decision
of the Appeal Tribunal (Tribunal), denying him unemployment
benefits, pursuant to N.J.S.A. 43:21-5(a), on the ground that he
left work voluntarily without good cause attributable to the work.
We affirm.
Appellant was a foreman for a construction company for nearly
six years. On July 11, 2016, he left the job voluntarily and
relocated to Puerto Rico to care for his ailing parents and attend
to other personal matters. Subsequently, he filed a claim for
unemployment benefits. On September 6, 2016, a Deputy Director
of Unemployment Insurance determined that appellant was ineligible
for benefits because he left work voluntarily without good cause
attributable to the work. Appellant appealed but failed to
participate in the scheduled telephonic hearing, resulting in the
dismissal of his appeal without prejudice. Subsequently and "[f]or
good cause shown," the Tribunal reopened the matter, and appellant
participated in a telephonic hearing on December 15, 2016.
During the hearing, appellant testified that he initially
went to Puerto Rico because he had "a problem with [his] wife,"
but when he arrived, he discovered that his father and mother were
"very sick." Appellant decided to stay in Puerto Rico and "tr[y]
to find [a] job [t]here" because his parents needed him and
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"because [his] marriage created problems" and he had "nothing to
go back to." However, despite his efforts, he had been unable to
find a job because "construction . . . in Puerto Rico
[was] . . . different than in New Jersey." Appellant admitted
that were it not for his personal problems, he would have stayed
at his job in New Jersey because he "like[d] [his] job" and the
company "helped [him] a lot."
The Tribunal affirmed the determination of the Deputy,
finding that appellant voluntarily resigned "for personal reasons
not attributable to the work." Relying on N.J.A.C. 12:17-9.1(e)(6)
where "[r]elocating to another area for personal reasons" is a
disqualifying event under N.J.S.A. 43:21-5(a), the Tribunal
determined that appellant "left the job to relocate to care for
his parents and attend to personal matters." While the Tribunal
"sympathize[d] with [appellant's] circumstances" and noted that
"his reasons for leaving the work were certainly compelling," he
was "disqualified for benefits under N.J.S.A. 43:21-5(a) . . . as
he left work voluntarily without good cause attributable to such
work." Finding that appellant "was given a full and impartial
hearing and a complete opportunity to offer any and all evidence,"
the Board affirmed on the record below, and this appeal followed.
Our review of administrative agency decisions is limited.
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "If the Board's
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factual findings are supported 'by sufficient credible evidence,
courts are obliged to accept them.'" Ibid. (quoting Self v. Bd.
of Review, 91 N.J. 453, 459 (1982)). Further, "[a]lthough we are
'[not] bound by an agency's interpretation of a statute or its
determination of a strictly legal issue[,]' the agency's views are
entitled to substantial deference because of its duty to administer
the subject matter agreeably with the legislative design." Bustard
v. Bd. of Review, 401 N.J. Super. 383, 390 (App. Div. 2008) (second
and third alteration in original) (citation omitted) (quoting
Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
Thus, we will not disturb the Board's action unless it is
"arbitrary, capricious, or unreasonable," Brady, 152 N.J. at 210,
and "[t]he burden of demonstrating that the agency's action was
arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div. 2006).
N.J.S.A. 43:21-5(a) provides that a person is ineligible for
unemployment benefits if he or she leaves work voluntarily and not
for good cause attributable to the work. An employee who leaves
work for "personal reasons, however compelling, . . . is
disqualified under the statute." Utley v. Bd. of Review, 194 N.J.
534, 544 (2008). Leaving work to relocate to another area for
personal reasons is considered leaving work voluntarily without
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good cause attributable to such work. N.J.A.C. 12:17-9.1(e)(6).
Here, it is undisputed that appellant voluntarily left work and
relocated to Puerto Rico for personal reasons, a situation which
disqualifies him from receiving unemployment benefits under
N.J.S.A. 43:21-5(a).
On appeal, appellant claims for the first time that he was
denied "a full and impartial hearing." Relying on Alicea v. Board
of Review, 432 N.J. Super. 347 (App. Div. 2013), appellant asserts
he was denied due process at the hearing because he was not
afforded "an interpreter" or "translated documents" advising him
to request one, and his limited English proficiency "created
extreme anxiety" and "limit[ed] his ability to fully express his
thoughts regarding the facts of the case."
Appellant's reliance on Alicea is misplaced, as that case
addressed the issue of proper notice, rather than a challenge to
the proceeding itself. See Alicea, 432 N.J. Super. at 353 (holding
that not translating the underlying substantive decision into
Spanish to ensure comprehension by the affected party was
inadequate notice that violated the due process rights of an
individual who spoke and wrote only Spanish, resided in a rural
part of Puerto Rico, and was poorly educated); see also Rivera v.
Board of Review, 127 N.J. 578, 588 (1992) (holding "that the notice
periods and practices applied by the Department . . . were
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inadequate to protect [the claimant's] due-process rights" where
the Department sent "English-only notices" to migrant farm
workers' "off-season address during the farm-work season").
Here, appellant received proper notice, filed the appropriate
paperwork to appeal, and fully participated in the telephonic
hearing, during which he indicated that he understood the
procedure, had no questions about the procedure, and answered all
the hearing officer's questions without any difficulty. Moreover,
his case was adjudicated on the merits, rather than a procedural
deficiency. The record amply supports the Board's determination,
and appellant has made no showing that the Board's decision was
arbitrary, capricious, or unreasonable. See Russo v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011).
Affirmed.
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