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Porter v. Board of Review


January 27, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 201,568.

Per curiam.


Submitted December 15, 2009

Before Judges Lihotz and Ashrafi.

Claimant Latashia M. Porter appeals from a final decision of the Board of Review (Board) finding her disqualified from unemployment compensation benefits because she left work voluntarily without good cause attributable to the work, as provided in N.J.S.A 43:21-5(a). We affirm.

Claimant worked as a part-time school bus driver for Jordan Transportation from December 3, 2007 through August 16, 2008, and also for New Jersey Transit Bus Operations from August 2007 through September 7, 2008. A prerequisite of claimant's employment as a bus driver was to maintain a valid Commercial Driver's License (CDL) with an "S" stamp endorsement.

Sometime before August 2008, claimant was arrested following an altercation with another woman. As a result of the pending criminal charges, both the "S" endorsement and claimant's CDL were suspended. The inability to maintain her license resulted in termination of her employment with both employers, as no other work with the companies was available. The criminal matter has not been resolved. Claimant admits she participated in a fight and struck the other party with a metal car club. However, she maintains her innocence of any criminal conduct.

Claimant applied for unemployment benefits on August 17, 2008. In separate determinations, a Deputy Director for the Division of Unemployment Insurance concluded claimant was disqualified from receiving benefits because the license suspension, which caused claimant's separation from employment following the filing of criminal charges, resulted from voluntary conduct. N.J.A.C. 12:17-9.10(a).

The two matters were consolidated on appeal. Following a telephonic hearing held on November 13, 2008, the Appeal Tribunal affirmed the decisions of the Deputy, concluding N.J.S.A. 43:21-5(a) imposed a disqualification for benefits as a result of claimant's voluntary act resulting in the loss of employment. The Board affirmed that determination and this appeal ensued.

On appeal, claimant argues her actions were in self-defense and, therefore, cannot be considered "voluntary." We are not persuaded by claimant's arguments.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion and the determination by the administrative agency carries a presumption of correctness. Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Board of Educ. v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 31 (1996). Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations and citations omitted). We overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester County Welfare Bd., supra, 93 N.J. at 391); Campbell, supra, 39 N.J. at 562.

Whether an employee should be denied unemployment compensation benefits is based on the circumstances of each individual case. Self v. Bd. of Review, 91 N.J. 453, 459-60. (1982). Applying these principles to this matter, we conclude the Board's decision denying claimant benefits is supported by substantial credible evidence in the record.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). "The basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374. The governing statute, N.J.S.A. 43:21- 5(a), provides that an individual is disqualified for unemployment compensation benefits where that "individual has left work voluntarily without good cause attributable to such work." In order to avoid disqualification, the claimant has the burden to establish that he left work for good cause attributable to the work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "Good cause means 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,' and the reasons for terminating employment 'must meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal citations omitted).

When a license is a condition of employment, the loss of licensure is treated as a voluntary separation from employment. Yardville Supply, supra, 114 N.J. at 377. "Where it is reasonably foreseeable that an employee's voluntary conduct will render h[er] unemployable, and h[er] actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a)." Ibid. See also Mullarney v. Bd. of Review, 343 N.J. Super. 401, 407 (App. Div. 2001) (holding employee's surrender of his nursing license and subsequent termination from employment made him ineligible for benefits under the statute).

Yardville Supply's holding was codified by the Board in its regulation, N.J.A.C. 12:17-9.10(a), which provides:

If an individual is discharged due to the loss of a prerequisite license which is necessary to perform the duties of his or her employment, such discharge shall subject the individual to disqualification for benefits for voluntarily leaving work if he or she engaged in an act which resulted in the loss of the license.

Here, claimant argues she was fired, entitling her to benefits. She also asserts her actions taken in self-defense defeat application of N.J.A.C. 12:17-9.10(a). We disagree with these arguments.

The undisputed series of events leading to claimant's separation from employment showed that she engaged in a physical altercation with another resulting in her arrest. During the Tribunal hearing, claimant stated she was suspended "Because I got into a fight with a girl and she hit me with a bottle and my (inaudible) was cut and I filed charges on her, but she filed charges against me so I hit her with a car club which is a metal object. So I had to go to court for that matter. And they suspended my CDL for that." The license suspension made her unable to perform the responsibilities of her employment. It was reasonably foreseeable that claimant's participation in a physical altercation, striking another with a metal car club, would jeopardize her licensure and employment. Claimant's "unemployment [wa]s traceable directly to conduct for which [s]he [wa]s responsible," made despite her understanding that she risked license suspension and endangered her livelihood as a school bus driver. Yardville Supply, supra, 114 N.J. at 376.

The Board's decision, rendered after a hearing that comported with due process, Malady v. Bd. of Review, 166 N.J. Super. 523, 528 (App. Div. 1979), is supported by substantial credible evidence in the record as a whole. Barry, supra, 100 N.J. at 71. We discern no basis to disturb the Board's determination.



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