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Moody v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 16, 2008

ROBERT N. MOODY, JR., APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND MAINLAND TRANSPORTATION, RESPONDENTS.

On appeal the Board of Review, Department of Labor, Docket No. 126,225.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2008

Before Judges Parker and R. B. Coleman.

Claimant Robert N. Moody, Jr. appeals pro se from a January 5, 2007 Final Decision of the Board of Review (the Board), finding that Moody was disqualified from receiving unemployment benefits as of August 6, 2006 in accordance with N.J.S.A. 43:21- 5(a) because he voluntarily left work. The Board further found that Moody was liable for benefits he received during the period of disqualification. After reviewing the record in light of the contentions advanced on appeal and applicable law, we affirm.

Moody was an employee of Mainland Transportation, LLC (Mainland) for several years. On August 11, 2006, Paul Phillippy, the owner of Mainland, called Moody into his office to discuss Moody's pay sheet. This meeting resulted in an argument that prompted Moody to leave work for the day. There was no contact between the parties until August 18, 2006, when Moody appeared at the Mainland office to pick up a paycheck. Thereafter, Moody did not return to work, believing that he had been terminated as a result of the argument he had with Phillippy.

Proceeding as though Phillippy had terminated his employment, Moody filed for unemployment compensation benefits. On August 29, 2006, a Division of Unemployment Insurance Deputy determined that Moody was "ELIGIBLE FOR BENEFITS FROM 08/06/06." Mainland appealed the Deputy's decision, contending that Moody was discharged for misconduct connected with his work, rendering him disqualified from receiving unemployment benefits. On October 31, 2006, the Appeal Tribunal conducted a telephone hearing with both Moody and Phillippy appearing.*fn1 The Appeals Examiner elicited the following pertinent testimony. Phillippy stated that on August 11, 2007, "I was going over his pay sheet and it was just totally distorted and . . . when he came in I ask [sic] him about it and . . . I started questioning him he became insulted . . . and he became very loud and disruptive, you know telling me I was, you know stealing from him . . . ." Phillippy further stated that:

I told him to go ahead and get out of [the] building and then it went from get out the building and stop screaming to, you know just go for the day[.] [J]ust go home [.] And then he started trying to turn it into, you know you fire me for good[,] you want me to leave for good[.] I said, "no Bob it's for the day[,] get out."

Phillippy testified that he placed a letter in the envelope with Moody's paycheck, which Moody picked up on August 18, 2006, that reads as follows:*fn2

ROBERT, YOU ARE ELIGIBLE TO RETURN TO WORK ON 8/29/2006 UNDER THE FOLLOWING CONDITIONS.

1. LETTER OF APOLOGY IN REGARDS TO CALLING PAUL [PHILLIPPY] A THIEF IN REGARDS TO PAYING EMPLOYEE'S [SIC].

2. HANDING IN UNCOMPLETED DRUG TESTS AND ACCIDENT REPORTS FOR ACPD.

Phillippy maintained that Moody did not respond to the letter and that he attempted to reach him by phone but Moody did not return his phone calls. Phillippy indicated that he never discharged Moody.

Moody testified that on the day of the argument that he was not yelling and screaming. Moody claimed that Phillippy told him to "get the F out of my office[,]" prompting him to leave the premises. Moody acknowledged that Phillippy told him to just go home for the day but stated that later Phillippy screamed at him and said "I tell you what[,] get the F off my property and don't ever come back . . . ." Moody stated that when he picked up his check, the envelope did not contain a letter from Phillippy concerning Moody's return to work; rather, in addition to the paycheck, the envelope contained a letter pertaining to employee uniforms.

After considering the testimony elicited at the telephone hearing, the Appeals Examiner issued her decision, which reads in pertinent part:

FINDINGS OF FACT

On 8/8/2006, the claimant was questioned about his pay sheet, which the employer thought reflected distorted figures. The claimant became insulted and became loud, disruptive, and made accusations against an employee by calling them a thief.

On 8/16/2006, in with the claimant's paycheck was a letter from the employer listing the conditions under which he could return to work.

The claimant did not comply with the directive because he assumed he had been terminated on 8/8/2006, when the employer told him to leave the building.

The claimant was not discharged by the employer.

DECISION

No disqualification applies under N.J.S.A. 43:21-5(b), as the claimant was not discharged for misconduct connected with the work.

The claimant is disqualified for benefits under N.J.S.A. 43:21-5(a) as of 8/13/2006, as he left work voluntarily without good cause attributable to such work.

The matter of claimant's potential liability for refund of benefits received is remanded to the Director . . . .

The determination of the Deputy is reversed. Moody appealed the decision of the Appeal Tribunal to the Board. After considering the entire record, including a recording of the telephone hearing, the Board substantially agreed with the Appeal Tribunal's decision:

On the basis of the record below, we agree with the decision reached, except the employer appealed the Deputy's determination on September 8, 2006, and the claimant's pay check was issued on August 18, 2006. Additionally, the claimant was suspended on August 11, 2006, and his failure to return to work thereafter constitutes voluntary leaving as of August 6, 2006, in accordance with N.J.S.A. 43:21-5(a).

The claimant is disqualified for benefits as of August 6, 2006, in accordance with N.J.S.A. 43:21-5.

As the claimant may have received benefits during the period of disqualification, the matter of the claimant's potential liability for refund of benefits will be determined by the Director . . . .

Moody then filed a Notice of Appeal. On appeal, he presents the following arguments for our consideration:

POINT 1: THE AGENCY ERRED IN ACCEPTING LETTER FROM DEFENDANT, NO PROOF THAT LETTER WAS THERE HERE SAY [SIC] EVIDENCE.

POINT 2: VOLUNTARY WALKING OFF JOB.

POINT 3: SPOKE WITH EMPLOYER DURING SAID WEEK.

POINT 4: BETTER REASON TO LEAVE JOB.

POINT 5: EMPLOYER NEVER CONTACTED ME FOR SEVEN (7) DAYS WHICH INITIATED USE OF EMPLOYEE HANDBOOK OR VERBAL CONTRACT SEVEN NO CALL - NO SHOWS - TERMINATED.

POINT 6: AGENCY ERRED IN ITS JUDGMENT, WITH SO MUCH HEARSAY EVIDENCE, NOT TO EXTEND PERIOD OF DISCOVERY PURSUANT TO N.J.S.A. 52:14B-10-1.

POINT 7: USE OF EVIDENCE CREATED UNDO [sic] PREJUDICE.

Our review of a final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). The scope of review of an administrative decision "is the same as that [for] an appeal in any non-jury case, i.e. 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The appellate court may not "engage in an independent assessment of the evidence as if it were the court of first instance." Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "The choice of accepting or rejecting testimony of witnesses rests with the administrative agency, and where such choice is reasonably made it is conclusive on appeal." In re Application of Howard Savs. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976). In light of this standard of review, we are mindful that we are not in a better position than the Appeals Examiner or the Board to make a determination as to which party's statements were more credible. Our review of the parties' testimony leads us to conclude that the Appeals Examiner's determination and the Board's corresponding adoption of that determination, that Moody was not discharged by his employer, were supported by the evidence. Moody's arguments on appeal are factual in nature. Due to our affirmation of the Appeals Examiner's and the Board's findings, Moody's factually based arguments, which are not adequately developed, do not warrant written consideration. R. 2:11-3(e)(1)(E).

Affirmed.


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