ANIBAL MORALES, JR. VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3142-17T3
ANIBAL MORALES, JR.,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and CERVINI'S, INC.,
Respondents.
Submitted January 30, 2019 – Decided April 2, 2019
Before Judges Koblitz and Currier.
On appeal from the Board of Review, Department of
Labor, Docket No. 135,416.
Anibal Morales, Jr., appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Jana R.
DiCosmo, Deputy Attorney General, on the brief).
Respondent Cervini's, Inc., has not filed a brief.
PER CURIAM
Claimant Anibal Morales, Jr. appeals from the February 6, 2018 decision
of the Board of Review (Board) finding him ineligible for unemployment
benefits pursuant to N.J.S.A. 43:21-5(a). After a review of the contentions in
light of the record and applicable principles of law, we affirm.
We derive the facts from the telephonic hearing before the Appeal
Tribunal. Claimant was employed as a floater by defendant Cervini's, Inc., an
auto body design retailer. On October 13, 2017, claimant stated he was called
into the director of operation's office and informed that other employees had
accused him of stealing body shop tools. In the course of the discussion,
claimant stated he placed his keys on the director's desk and left, explaining his
wife was ill, and he could not deal with the accusations. Claimant contacted the
director two weeks later inquiring about the unemployment process. He advised
he did not intend to return to work.
The director testified that he called two groups of employees into his
office on October 13, to discuss the morale in the shop and the tension among
the employees. Several employees accused claimant of trying to sabotage the
operation, by purposely slowly it down, and stealing tools to use on body shop
work done at his house. An employee also stated that claimant was "slandering
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the company's name" and "slandering [the director] personally." The employee
further accused claimant of "going up to employees, handing them business
cards, and [saying], 'Here, call this number, you know, this job is . . . hiring if
you don't want to work here.'"
When the director asked claimant about the accusations, he denied them.
The director stated: "[Claimant] took his keys off his key ring, placed them down
on my desk and simply stated, 'You know, I . . . have too much on my mind. I
can't handle this. I got to go,' . . . and [claimant] walked out." The director
advised he did not intend to fire claimant during that meeting.
Claimant submitted a claim for unemployment benefits. The Deputy
Director of Unemployment Insurance (Deputy) determined that claimant had left
work voluntarily, disqualifying him for benefits.
Following claimant's appeal of the determination, a telephonic hearing
was conducted before the Appeal Tribunal. The appeals examiner noted:
claimant resigned without affording the employer an
opportunity to investigate the accusations, which were
subsequently found to be based on hearsay. The
claimant made no attempt to substantiate his complaints
about the other workers, or to preserve his [twenty]-
year work history. Therefore, the claimant left work
voluntarily without good cause attributable to the work,
and is disqualified for benefits . . . in accordance with
N.J.S.A. 43:21-5(a).
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The Board affirmed the Appeal Tribunal's decision.
On appeal, claimant contends he left his job due to a hostile work
environment, and the Appeal Tribunal and Board failed to undertake thorough
investigations.
We are mindful that our review of administrative agency decisions is
limited. We will not disturb an agency's action unless it was clearly "arbitrary,
capricious, or unreasonable." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
N.J.S.A. 43:21-5(a) provides that an employee who "has left work
voluntarily without good cause attributable to such work" is disqualified for
unemployment compensation benefits. "Under this section, the threshold
question is whether an applicant for unemployment compensation benefits left
his job 'voluntarily.'" Lord v. Bd. of Review, 425 N.J. Super. 187, 190-91 (App.
Div. 2012). An employee has left work "voluntarily" within the meaning of the
statute "only if 'the decision whether to go or to stay lay at the time with the
worker alone.'" Id. at 191 (quoting Campbell Soup Co. v. Bd. of Review, 13
N.J. 431, 435 (1953)). If the applicant leaves voluntarily "[he or she] is eligible
for unemployment compensation benefits only if that separation was for 'good
cause attributable to [the] work.'" Ibid. (quoting N.J.S.A. 43:21-5(a)); see also
Utley v. Bd. of Review, 194 N.J. 534, 544 (2008).
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Here, claimant did not present any evidence before the Appeal Tribunal
that demonstrated continued incidents of physical or verbal abuse or harassment
by his employer to satisfy good cause for voluntarily leaving the work.
Mullarney v. Bd. of Review, 343 N.J. Super. 401 (App. Div. 2001) (explaining
it was the claimant's burden to provide the requisite proof); see also Domenico
v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) ("[I]t is the
employee's responsibility to do what is necessary and reasonable in order to
remain employed.").
In the midst of a meeting with the director and other employees, claimant
made a decision to leave the job. He advised that he could not "deal" with the
accusations made by other employees because he had personal issues on his
mind. In laying his keys on the desk and telling his employer he couldn't "handle
it anymore," claimant voluntarily left the job. He did not return to the workplace
or contact his employer until two weeks later when he inquired about
unemployment benefits. Even then, claimant advised he did not intend to return
to work. See Fennell v. Bd. of Review, 297 N.J. Super. 319, 322 (App. Div.
1997) ("Causes personal to the claimant and not attributable to the work come
within the disqualification language of the statute.").
Affirmed.
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