Opinion
DOCKET NO. A-3945-10T3
06-13-2012
DENNIS FRIDMANN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, GEVITY HR III, L.P., TRINET ACQUISITION CORP., and MERCEDES BENZ OF CHERRY HILL, Respondents.
John M. Chomko, attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief). Respondents Gevity HR III, L.P., Trinet Acquisition Corp. and Mercedes Benz of Cherry Hill have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Board of Review, Department of Labor, Docket No. 283,913.
John M. Chomko, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).
Respondents Gevity HR III, L.P., Trinet Acquisition Corp. and Mercedes Benz of Cherry Hill have not filed briefs. PER CURIAM
Dennis Fridmann appeals from the February 22, 2011 decision by the Board of Review affirming the decision of the Appeal Tribunal, which denied him unemployment benefits because he "left work voluntarily without good cause attributable to the work." After reviewing the record in light of the contentions advanced on appeal, we affirm.
Fridmann, a high-earning car salesman, was employed by Mercedes Benz of Cherry Hill (Mercedes Benz) from June 2006 to April 23, 2010. At the hearing before the Appeals Examiner, Fridmann and the General Manager of Mercedes Benz, Edward Albertas, presented differing versions of why Fridmann left the company.
Fridmann testified that April 16, 2010 was his last day of work, although the employer testifed he was paid through April 23, 2010.
Fridmann testified that Albertas became angry and fired him after Fridmann made an approved purchase of a 2002 Dodge Intrepid for $2000 for the use of his son.
Albertas testified that a Baltimore Mercedes Benz dealer told him that Fridmann had contacted the other dealer in an attempt to "curb cars." Albertas stated he warned Fridmann that if he learned of any other instances of curbing cars, it would be a problem. Albertas testified that Fridmann responded by saying that he "might as well leave now," then packed up his desk and left work permanently. Albertas testified that Fridmann was a successful salesman and his job was not in jeopardy by the report of an attempt to curb cars.
"Curbing cars" was defined by Albertas at the hearing as a salesman brokering a higher commission by selling a car obtained through another dealer without the knowledge of the employer.
Albertas also denied he was concerned about Fridmann's purchase of the $2000 used car, but acknowledged he was annoyed about Fridmann's outstanding $900 bill for service to his personal vehicles.
Fridmann countered that the dealership's owner had promised him that his service bill would be forgiven if he sold $400,000 in cars for the Porsche Audi dealership managed by the owner's daughter. Fridmann testified that although he was given a "token," he was "never compensated for the extra money that [the owner] told me he was going to take care of . . . ." Fridmann later admitted he had received a commission from the Porsche Audi dealer, but claimed the owner had promised him payment in addition to the commission.
The Appeals Examiner found Albertas to be more credible than Fridmann, at least in part, because she determined Fridmann's testimony with regard to his compensation from the Porsche Audi dealership to be inconsistent. She concluded that Fridmann voluntarily left work without good cause attributable to the work, which was accepted by the Board "on the basis of the record below."
On appeal, Fridmann argues that (1) the Examiner misunderstood his testimony, which led her to discount its veracity, (2) the inaudible portions of the transcript require a remand for a new hearing, and (3) the examiner erred when she precluded evidence of Fridmann's age. He also maintains that the Examiner erred when she failed to evaluate Fridmann's good cause for leaving employment.
Fridmann claims he is sixty-five-years-old and his advanced age makes it unlikely that he would voluntarily leave employment. He also claims on appeal that he was not allowed to present evidence that other, older salesmen had been terminated in the previous two years.
We review Fridmann's contentions in accordance with our established standard of review. The Board's determination that Fridmann was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable," or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).
"We may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Futterman v. Bd. of Review, Dep't of Labor, 421 N.J. Super. 281, 287 (App. Div. 2011) (quoting Brady, supra, 152 N.J. at 210). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, they must be upheld. Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (citing In re Taylor, 158 N.J. 644, 657 (1999)).
The burden of proof rests on Fridmann to establish his right to unemployment compensation. Mullarney v. Bd. of Review, 343 N.J. Super. 401, 408 (App. Div. 2001) (citing Brady, supra, 152 N.J. at 218). At the time Fridmann's claim was denied, a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant is disqualified for benefits:
The statute has since been amended to require the claimant to work for eight weeks in employment and earn at least ten times the individual's weekly benefit rate. L. 2010, c. 37 (effective July 1, 2010). Those changes are not germane to this appeal.
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[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 for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . .
[N.J.S.A. 43:21-5(a) (emphasis added).]
While "good cause" is not statutorily defined, "New Jersey courts have construed the phrase to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Brady, supra, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). We have previously clarified that the statute requires more than mere dissatisfaction with working conditions:
In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. 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. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.
[Domenico, supra, 192 N.J. Super. at 288 (internal quotation marks and citations omitted).]
The New Jersey Administrative Code further specifies that "good cause" 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) (explaining that "a departure not attributable to work . . . will disqualify the employee from receiving unemployment benefits").
Fridmann maintains that the record is deficient and points to one inaudible answer as being crucial to the proceedings. In fact, however, the inaudible portion is merely the employer saying, "Can I say what (inaudible)?" to which the Examiner responds, "Go ahead." After this exchange, the employer proceeds to relate the contents of the call from the Baltimore dealer. Clearly the inaudible portion was merely a question from the witness as to whether he could testify as to this telephone conversation.
The Examiner's credibility assessment is fully supported by the record. She had the opportunity to hear live testimony and explained her findings in her decision. We must therefore give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997) (citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)); see also State v. Locurto, 157 N.J. 463, 474 (1999).
Fridmann argues that if he is found to have left voluntarily, he had a valid reason for doing so. This argument is unconvincing. Moreover, his contention that he was not paid the promised compensation by his employer for selling cars for another dealership is not grounded in the record. He testified that he did not file a complaint with the Division of Wage and Hour Compliance. He testified further that he did not know how much he should have been paid, but was promised only that his $900 service bill would be forgiven. Fridmann's vague, unsupported complaint about compensation is not sufficient to constitute "good cause attributable to work," nor did Fridmann make such a claim before the Examiner.
Finally, Fridmann argues that the Examiner abused her discretion by not allowing him to testify as to his age and, consequently, to mount an age discrimination claim. N.J.A.C. 1:1-15.1(c) provides that an ALJ "may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either: (1) [n]ecessitate undue consumption of time; or (2) [c]reate substantial danger of undue prejudice or confusion.As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion.'" Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009) (quoting Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991)). Fridmann presents no logical explanation for why his former employer would terminate a highly productive salesman merely due to his age. Thus, the Examiner did not abuse her discretion in prohibiting this line of inquiry.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION