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Cummings v. Board of Review

June 25, 2008

RANDALE L. CUMMINGS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, STATE OF NEW JERSEY, AND CLASS A TRANSPORTATION LLC.*FN1 , RESPONDENTS.



On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 127,559.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 30, 2008

Before Judges Axelrad and Payne.

Claimant Randale Cummings appeals from a final decision of the Board of Review finding him ineligible for unemployment benefits because he left his former employment voluntarily, without good cause for doing so. N.J.S.A. 43:21-5(a).

The record discloses that, following the conclusion of his employment by respondent, Class A Transportation LLC, Cummings sought unemployment compensation under the provisions of New Jersey's Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.4. Finding that Cummings was discharged for misconduct connected with his work, the Deputy imposed a disqualification from receipt of benefits from August 13, 2006 through September 23, 2006 pursuant to N.J.S.A. 43:21-5(b).

Cummings appealed, pro se, and a telephonic hearing was conducted before an Appeal Tribunal examiner at which testimony was provided by Cummings, his employer's principal, James Witt, and a co-employee, John DiLasso, called to testify by Witt. The transcript of the hearing discloses that Cummings was a van driver for Class A, a limousine service. While transporting a customer, a deer hit the back of Cummings's van, causing minor damage. Cummings did not immediately report the collision, but instead continued on his route, reporting the accident to Witt only when he returned to his employer's garage. Upon making his report, Witt asked why Cummings had not called to report the accident when it occurred. Cummings responded that he did not know he was required to do so. When the two men then went outside the office to view the damage, or at some point prior thereto, a dispute arose, and voices were raised.

According to Witt:

The phone rang. I [Witt] picked up the phone. I took a reservation. He [Cummings] had walked outside. I walked outside to meet him. He was in front of the vehicle and . . . started to rant and rave. He started to [conduct] what I call a "fit." "I don't need this." This is "f --- ing bs" yada yada. So then he ran back into the office yelling and screaming. He was cursing and screaming. I tried to calm him down but I didn't have any success in it. He said, "he didn't need this bs and f ---this and f --- that." He quit.

He went in and out of the buildings screaming, ranting and raving. He doesn't need this. He doesn't need the aggravation blah, blah, blah back and forth. So I said to him if you quit, hand in your keys. I'll give you your paycheck. End of story. He went out to his car. I don't need this, blah, blah, blah back and forth and raced out of the parking lot. Fifteen to 20 minutes later he returned. He had his keys in his hand. He handed me those keys. I handed him his paycheck. He proceeded on this way.

Witt additionally testified that he would not have discharged Cummings for being hit by a deer or for his failure to timely report the accident. However, Cummings would have been terminated for his angry outburst (reportedly, not the first) if he had not already determined to leave voluntarily. The testimony of co-employee DiLasso essentially corroborated the facts set forth by Witt.

In contrast, Cummings testified:

I walked into the office. Mr. Witt was in the office. I told him [he] had to come out I had to show him something. He went outside. Walked around the van. He seen it. He said what happened. I told him a deer hit the van and he said why didn't you call in? And my response to him was I didn't know. He kept going on and on and on. He walked back into the office. I followed him back inside. Then he tells me why didn't you call? I said I didn't know. I never been in an accident with you before. Then he starts using profanity. Then he said to give him the keys. I gave him his keys to the front gate, the main gate and the back door. At that point in time, I told him I'm not going to take it anymore. I'm going to get an attorney and I'm going to see you in court. Then he started calling me the "f" word.

Cummings testified that this was not the first time that he had been cursed at by Witt in front of co-workers, and that at the conclusion of this incident, he thought he had been fired, because Witt requested Cummings's keys. According to Cummings, "[w]hen I left, I got in my car and I went to call my attorney. ...


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