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Gonzalez v. Board of Review

August 15, 2007

ERNESTO R. GONZALEZ, CLAIMANT-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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