Opinion
DOCKET NO. A-0903-14T4
05-18-2016
MARZINNO C. LEMBO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and KELLOGGS SALES COMPANY, Respondents.
Marzinno C. Lembo, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent, Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul D. Nieves, Deputy Attorney General, on the brief). Kelloggs Sales Company has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Board of Review, Department of Labor, Docket No. 20,259. Marzinno C. Lembo, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent, Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul D. Nieves, Deputy Attorney General, on the brief). Kelloggs Sales Company has not filed a brief. PER CURIAM
Appellant Marzinno C. Lembo appeals pro se from the final decision of respondent Board of Review (Board), which affirmed the decision of the Appeal Tribunal (Tribunal) that appellant was disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a) because he left his employment at respondent Kelloggs Sales Company (Kelloggs) without good cause attributable to the work. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.
The record reveals that appellant began employment as a truck driver at Kelloggs in January 2011. Sometime in January 2014, appellant was given a week's vacation to get his car repaired. However, following the vacation, appellant did not return to work. Recognizing that appellant had some "financial issues," Kelloggs communicated with appellant on several occasions throughout the next two months, via telephone and in-person, to arrange for him to report to work — even offering him a vehicle to commute to work — but appellant never appeared. On March 14, 2014, Kelloggs notified appellant that he was being terminated effective that day. Kelloggs later sent appellant a formal letter confirming his termination for violation of company policy concerning excessive absenteeism.
On March 23, appellant applied for unemployment benefits and was found eligible by the Deputy Director. Kelloggs challenged the decision to the Tribunal, but appellant did not participate in the telephonic appeal hearing. In its decision, the Tribunal ruled appellant ineligible for benefits, finding that appellant "made no attempt to preserve his job" and "initiated the severing of the employee/employer relationship" when he voluntarily failed to return to work after his vacation.
On July 10, appellant appealed the Tribunal's decision to the Board but failed to appear at the scheduled hearing. On September 30, the Board mailed its undated decision to the parties affirming the Tribunal's findings. The Board reasoned "[s]ince the appellant was given the opportunity to appear at the Tribunal hearing and as good cause for failing to appear or request an adjournment has not been presented, there is no valid ground for a further hearing." This appeal followed.
Before us, appellant contends he was entitled to unemployment benefits pursuant to N.J.S.A. 43:21-5 because he left his job for good cause. He argues he could not commute to work due to mechanical issues with his car. In addition, he argues he was incapable of renewing his medical examiners certificate as required by 49 C.F.R. § 391.43 to perform his job as an interstate commerce truck driver due to his diabetic condition.
Appellant incorrectly cites the federal regulation as "F.M.C.S.R. 391.43." --------
The scope of appellate review of an administrative agency's final determination is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Agency decisions are given a strong presumption of reasonableness, and we will not reverse such a decision unless it was arbitrary, capricious, or unreasonable, or not supported by evidence in the record. Thurber v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div. 2006) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)), aff'd, 191 N.J. 487, 502 (2007); see also In re Herrmann, 192 N.J. 19, 27-28 (2007). We defer to fact-findings if reasonably based on the proofs. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "'[T]he 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.'" Ibid. (quoting Charatan, supra, 200 N.J. Super. at 79). Thus, the issue is whether the factual findings are supported by sufficient credible evidence. Ibid. (citing Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). In making that determination, we also give due regard to the agency's credibility determinations. 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)). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady, supra, 152 N.J. at 210), certif. denied, 176 N.J. 281 (2003). That said, we do not simply act as a "rubber stamp" of the agency's decision. In re Berwick Ice, Inc., 231 N.J. Super. 391, 397 (App. Div. 1989) (quoting N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 575 (1978)); see also Henry, supra, 81 N.J. at 579-80.
A claimant is not entitled to unemployment benefits unless he meets the statutory conditions of eligibility, and is not otherwise disqualified. Bocchino v. Bd. of Review, 202 N.J. Super. 469, 473 (App. Div. 1985) (citing Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 454-55 (1953)). Usually, the burden is on the claimant to demonstrate his or her eligibility for unemployment benefits. Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 51 (App. Div. 1964)).
As noted, the statute in question here, N.J.S.A. 43:21-5(a) provides that a person is disqualified from receiving unemployment benefits when he or she leaves work voluntarily without good cause attributable to the work. An employee's "'decision to leave employment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Shuster v. Bd. of Review, 396 N.J. Super. 240, 244-45 (App. Div. 2007) (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)); see also In re N.J.A.C. 12:17-9.6 ex. rel. State Dep't of Labor, 395 N.J. Super. 394, 399-400 (App. Div. 2007). Moreover, an employee has the obligation "to do what is necessary and reasonable in order to remain employed." Domenico v. Bd of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citing Condo v. Bd. of Review, 158 N.J. Super. 172, 175 (App. Div. 1978)); see also Zielenski, supra, 85 N.J. Super at 53-54. Thus, employees who quit their jobs after failing to find transportation to their place of employment do not have good cause attributable to work and are disqualified from collecting unemployment benefits. Self, supra, 91 N.J. at 460.
Applying these standards, we discern no basis to disturb the Board's decision. The determination that appellant was disqualified for benefits under N.J.S.A. 43:21-5(a) because he voluntarily left his employment without good cause was based upon credible evidence in the record that appellant was terminated because he failed to report to work. Like the employees in Self, appellant's claim that he did not have transportation to get to work is not good cause for leaving attributable to work. Moreover, appellant's rejection of Kelloggs' efforts to assist him in getting to work undermined appellant's claim that his failure to report to work was involuntary.
We further conclude that since appellant failed to appear before the Board and did not argue he could not work because he did not have a medical examiner's certificate to secure a license to perform his job, appellant may not raise his argument now. State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)) (noting that unless a claim addresses a matter of public interest or jurisdiction a claim not presented below should not be considered). Even so, the argument has no merit. There is no proof that appellant reported to work and was told that he could not work because he did not have a medical examiner's certificate. Also, there is no proof that appellant's failure to obtain the certificate in a timely manner was beyond his control.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION