August 15, 2007
ERNESTO R. GONZALEZ, CLAIMANT-APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND O'NEIL AUTOMOTIVE TECHNOLOGIES, INC., RESPONDENTS-RESPONDENTS.
On appeal from the Final Decision of the Board of Review, Department of Labor, 108,165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 7, 2007
Before Judges Sabatino and Baxter.
Ernesto R. Gonzalez appeals from the denial of unemployment compensation benefits, contending that the Board of Review's (Board) conclusion that he resigned from his job was erroneous.
He further argues that even if this court were to determine that he did resign, he is nonetheless entitled to unemployment compensation benefits because his employer's bad temper and use of an ethnic slur constituted good cause for him to resign. We affirm.
Gonzalez was employed as an automotive repair technician by O'Neil Automotive Technologies, Inc. from January 5, 2004 through February 23, 2006. On February 23, Gonzalez had a dispute with his employer, Les O'Neil, about Gonzalez's work on a car that had been returned for service after initial attempts by Gonzalez to fix an oil leak were unsuccessful. As a result of O'Neil's angry comments, Gonzalez left. Gonzalez contends that when he returned to work the next day, O'Neil told him that because he had voluntarily left the day before, he was not welcome to return. O'Neil, in contrast, argues that plaintiff stormed away angrily on February 23, 2006, and never returned.
At a hearing on his claim, Gonzales testified that O'Neil acted "racial towards [him]" when he said "you and your people are stupid." He also testified to O'Neil's bad temper and O'Neil having angrily kicked a box that morning.
The record also contains a May 20, 2006 notarized letter from Gonzalez's former co-worker Johnnie Alsiva. Alsiva stated in the letter that he "worked for Mr. O'Neil for one year. The reason I left was because I couldn't put up with the verbal and racial abuse. [O'Neil] has yelled and downgraded me once too many times in front of the other employees and even worst [sic] in front of the customers . . . . Mr. O'Neil used to yell and throw things on the floor and downgrade [Gonzalez] as well."
O'Neil testified, and denied that he ever used ethnic or racial slurs. He acknowledged becoming upset or angry when any of his employees did "blantant[ly] dangerous things or silly things or mindless things," but denied firing Gonzalez and insisted that after Gonzalez said "I don't need this," he walked out the door and never returned.
On March 17, 2006, a deputy claims examiner determined that Gonzalez had quit his job voluntarily and without good cause attributable to the work. The deputy notified Gonzalez that he was accordingly ineligible for unemployment compensation benefits, pursuant to N.J.S.A. 43:21-5(a).
Gonzalez filed a timely appeal. After conducting the hearing we have described, the Appeal Tribunal on May 24, 2006 affirmed the claims examiner's denial of benefits, finding that although "the employer has a tendency to lose his temper . . . [and] may very well have acted in an improper manner in addressing the claimant . . . we conclude that there was insufficient justification for the claimant to voluntarily leave work."
The Appeal Tribunal specifically found that O'Neil did not utter any ethnic or racial slurs. It further concluded that "although the employer did not act in the best way possible" when he lost his temper, being subjected to a reprimand by one's employer, even when the reprimand was improper and humiliating, did not constitute good cause for leaving one's employment. Accordingly, the Appeal Tribunal concluded that Gonzalez had "voluntarily left work without good cause attributable to such work" and was accordingly disqualified for benefits.
Thereafter, Gonzalez filed an appeal of that decision with the Board, which on July 21, 2006, adopted the findings of fact made by the Appeal Tribunal and affirmed its conclusion that Gonzalez was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a).
On appeal, Gonzalez claims that, contrary to the Board's finding, he did not leave his employment, but instead simply asked to leave at one o'clock in the afternoon on February 23, 2006, because of O'Neil's angry attitude. He contends that O'Neil fired him in response to that request. He further argues that even if we were to determine that he did indeed leave his employment voluntarily, his employer's "racially biased remarks" and "threats of violence" provided good cause.
The issue presented in this appeal is whether, as the Board determined in its decision of July 21, 2006, Gonzalez should be disqualified for benefits pursuant to N.J.S.A. 43:21-5(a).
N.J.S.A. 43:21-5(a) provides that a claimant is disqualified for benefits:
[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 four weeks in employment . . . and has earned at least six times the individual's weekly benefit rate .
[N.J.S.A. 43:21-5 (emphasis added).]
While the statute does not define "good cause," it has been construed to require more than vague and unsubstantiated allegations that an employee was forced to quit:
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 v. Bd. of Review, 192 N.J. Super. 284, 288 (App. Div. 1983) (citations omitted).]
The employee bears the burden of demonstrating that he terminated his employment for reasons that are sufficient to constitute good cause attributable to such work through "adequate competent evidence." Brown v. Bd. of Review, 117 N.J. Super. 399, 404 (App. Div. 1971).
In Gerber v. Board of Review, 313 N.J. Super. 37, 40 (App. Div. 1998), we held that being subjected to an unpleasant reprimand by one's employer does not constitute good cause for leaving employment. In particular, we reasoned that "on-the-job reprimands administered to claimant by her supervisor, . . . while public and arguably improper and humiliating, were not so burdensome as to justify claimant's departure from the job." Ibid.
The Board's determination 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 decision is supported by substantial credible evidence, the reviewing court is obliged to accord deference to the administrative agency's expertise. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974). We review this case in accordance with that scope of review. Ibid.
We agree with the Board's argument on appeal that O'Neil was entitled to reprimand Gonzalez for what O'Neil considered to be inadequate work performance, and even if Gonzalez found such reprimands to be unpleasant or unnecessarily angry in tone, such conduct by O'Neil did not provide good cause for Gonzalez to leave his employment. Gerber, supra, 313 N.J. Super. at 40. The Board concluded that Gonzalez terminated his employment; was not discharged by his employer; that his employer did not use ethnic or racial slurs; and that angry reprimands did not constitute good cause for Gonzalez to have left his employment. These conclusions were not arbitrary, capricious or unreasonable and find ample support in the record.
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