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Gordon v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 27, 2010

CAROL L. GORDON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND JOE E. STRAUSS, ESQ., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 169,090.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2009

Before Judges Lisa and Alvarez.

Carol Gordon (claimant or Gordon) appeals from an April 22, 2008 determination by the Board of Review affirming a decision of the Appeal Tribunal issued on March 28, 2008, in which it concluded that her claim for unemployment was valid and that, pursuant to N.J.S.A. 43:21-4(e) and N.J.S.A. 43:21-3(c), she was entitled to "a weekly benefit rate of $521.00 and a maximum benefit amount of $9,899.00." We affirm.

Gordon's contentions on appeal are, even when viewed in the best light possible, not clear:

CLAIMANT RELIED ON EMPLOYER TO PAY ALL TAXES AND TO REPORT ALL EARNINGS FOR THE YEAR 2006.

CLAIMANT MADE DEMAND TO EMPLOYER, JOE E. STRAUSS, ESQ., TO CORRECT W-2 FOR 2006 TO REPORT ALL EARNINGS, PAY ALL TAXES AND TO REIMBURSE SOCIAL SECURITY UNAUTHORIZED WITHDRAWAL OF CLAIMANT'S FUNDS.

CLAIMANT FILED PROPER 2006 TAX EARNINGS.

CLAIMANT SHOULD NOT BE PENALIZED FOR EMPLOYER'S FAILURE OF REPORTING OR LACK OF BOOKKEEPING.

CLAIMANT ALSO RELIED ON THE STATE OF NEW JERSEY, BOARD OF APPEAL TO DILIGENTLY CORRECT NUMEROUS ERRORS THROUGHOUT THE UNEMPLOYMENT PROCESS AND APPEAL.

CLAIMANT RELIED ON UNEMPLOYMENT TO DELIVER MONIES DUE AND OWING AS THE MONETARY AMOUNTS WERE INCREMENTLY INCREASED.

CLAIMANT MADE A DEMAND FOR IMMEDIATE RELEASE OF SAID FUNDS AND WAS UNJUSTLY DENIED $2,068.00 WHICH IS HELD IN NEW JERSEY STATE UNEMPLOYMENT MONETARY UNIT FUNDS AND REPORTED IN NJDOL-LOOPS PAYMENT SUMMARY TO DATE.

CLAIMANT IS STILL OWED FROM SHORT TERM DISABILITY $344.00 WHICH IS HELD IN THEIR FUNDS AND REPORTED IN NJDOL-LOOPS PAYMENT SUMMARY TO DATE. CLAIMANT WAS ENTITLED TO 23 WEEKS UNEMPLOYMENT NOT NINETEEN (19) WEEKS.

CLAIMANT WAS ENTITLED TO THE DIFFERENCE FROM BEING PAID $418 TO $508 FOR THOSE 23 WEEKS.

CLAIMANT WAS ENTITLED TO THE DIFFERENCE FROM BEING PAID $508 TO $521 FOR FOUR (4) MORE ADDITIONAL WEEKS.

CLAIMANT IS ENTITLED TO $2,068.00 BEING THE TOTAL SUM OF MONIES OWED HER BY THE "REGULAR" UNEMPLOYMENT.

THE TOTAL SUM OF MONIES ARE BEING UNJUSTLY WITHHELD BY THE STATE OF NEW JERSEY UNEMPLOYMENT DIVISION.

THE BOARD OF APPEAL FAILED IN ITS DUTY TO DIRECT AND CORRECT THE MONETARY FUND TO RELEASE CLAIMANT'S MONIES THAT ARE BEING UNJUSTLY WITHHELD.

FUNDS ARE READILY SEEN STILL IN CLAIMANT'S REGULAR UNEMPLOYMENT ACCOUNT AS REPORTED AS BEING HELD IN THEIR MONETARY UNIT FUNDS REPORT AS $2,068.00.

FUNDS WERE NOT FORWARDED FROM THE SHORT TERM DISABILITY DURING UNEMPLOYMENT AS REQUIRED AND AN AMOUNT OF $344 IS STILL OWED.

CLAIMANT ALSO RELIED ON THE STATE OF NEW JERSEY, BOARD OF APPEAL TO DILIGENTLY CORRECT NUMEROUS ERRORS THROUGHOUT THE UNEMPLOYMENT PROCESS AND APPEAL.

CLAIMANT RELIED ON UNEMPLOYMENT TO DELIVER MONIES DUE AND OWING AS THE MONETARY AMOUNTS WERE INCREMENTLY INCREASED.

CLAIMANT MADE A DEMAND FOR IMMEDIATE RELEASE OF SAID FUNDS AND WAS UNJUSTLY DENIED $2,068.00 WHICH IS HELD IN NEW JERSEY STATE UNEMPLOYMENT MONETARY UNIT FUNDS AND REPORTED IN NJDOL-LOOPS PAYMENT SUMMARY TO DATE.

CLAIMANT IS STILL OWED FROM SHORT TERM DISABILITY $344.00 WHICH IS HELD IN THEIR FUNDS AND REPORTED IN NJDOL-LOOPS PAYMENT SUMMARY TO DATE.

JOE STRAUSS HAS NOT REPORTED ALL WAGES.

JOE STRAUSS HAS NOT PAID ALL TAXES.

JOE STRAUSS HAS NOT CORRECTED HIS W-2 AS PER 5 DAY DEMAND.

JOE STRAUSS REMOVED MONIES FROM CLAIMANT WITHOUT REIMBURSING CLAIMANT FOR THE MAY 12, 2006 PAYROLL, GROSS OF $1,210, NET $872.35 (INCLUDED REGULAR 40 HOURS $800 AND OVERTIME AT (1 TIME RATE) $310 (INSTEAD OF 1 1/2 ) THAT WAS DEPOSITED INTO CLAIMANT'S BANK AND THEN WITHDRAWN. ANOTHER PAYROLL CHECK WAS SUBSTITUTED THAT DID NOT INCLUDE THE OVERTIME. JOE STRAUSS OWES CLAIMANT $310.

JOE STRAUSS HAS REMOVED SOCIAL SECURITY MONIES FROM CLAIMANT WITHOUT REPLACING STOLEN FUNDS.

JOE STRAUSS HAS PAID CLAIMANT ATTORNEY GENERAL ACCOUNT CHECKS AT NET RATE AND NET CASH AND HAS NOT PAID TAXES.

JOE STRAUSS HAS FAILED TO PAY FEDERAL TAX ON LABOR CHECK MARCH 2007.

JOE STRAUSS TOOK OUT IMPROPER FEDERAL WITHHOLDING ON ATTORNEY GENERAL ACCOUNT CHECK NO. REPORTED IN DECEMBER 2006 LABOR INVESTIGATIVE FINDINGS.

In Gordon's letter brief pursuant to Rule 2:6-5, she adds the following:

NO PAYOUT HAS BEEN RECEIVED FROM UNEMPLOYMENT FOR THE DIFFERENCE OF $418 TO $506 FOR 23 WEEKS.

NO PAYOUT HAS BEEN RECEIVED FROM UNEMPLOYMENT FOR THE DIFFERENCE OF $506 TO $521 FOR THE DIFFERENCE OF BEING SHORTED 4 WEEKS TO MAKE 23 WEEKS NOT THE 19 WEEKS THEY PAID.

NO PAYOUT HAS BEEN RECEIVED FROM SHORT TERM DISABILITY FOR THE DIFFERENCE OF $489 TO $506 FOR 19 WEEKS.

STATE OF NEW JERSEY HAS ACTED CAPRICIOUSLY, WANTONLY, EVEN WHEN GIVEN THE FACTS OF MONIES BEING HELD IN MY ACCOUNT THAT ARE PLAINLY VISIBLE TO THIS COURT IN THE MONETARY DETERMINATIONS AND THE DOL INQUIRIES OF $2,084.

We employ a highly deferential standard of review of an administrative decision in this case as we do in every other.

Overall, on judicial review "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). See also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006) (citation omitted). The agency decision must be supported by substantial credible evidence in the record as a whole. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). It must not offend either the state or federal constitution and must be in accord with the agency's legislative mandate. Ibid. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006) (citations omitted). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987) (citations omitted).

The appeal issues as Gordon frames them make no distinction between her unemployment benefits challenge, an appeal from prior rulings by the New Jersey Labor Board, disagreement with the payments she received pursuant to temporary disability, and the unfairness of Joseph E. Strauss, Esquire's employee compensation practices. It is undisputed, however, that claimant filed for unemployment benefits on October 22, 2006.

She was initially found to have a valid claim at a benefit rate of $506 weekly and a maximum rate of $9614 as of October 31, 2007. She thereafter filed an appeal of that determination with the Appeal Tribunal and hearings were conducted on January 8, 2008, and March 11, 2008.

On March 28, 2008, the Appeal Tribunal determined that Gordon established a valid claim for unemployment benefits and that she was entitled to "a weekly benefit rate of $521.00 and a maximum benefit amount of $9899.00" pursuant to N.J.S.A. 43:21- 4(e) and N.J.S.A. 43:21-3(c). Gordon thereafter filed an appeal of the decision of the Appeal Tribunal with the Board of Review, which affirmed the Appeal Tribunal's decision on April 22, 2008.

This appeal is only from the Board of Review decision.

Claimant's dispute with Strauss, for whom she worked as a paralegal from March 17, 2006, through October 6, 2006, is in part the source of the confusion. She challenged his payment of wages to her with the Department of Labor, Division of Wage and Hour, and prevailed, receiving $3516 in additional wages. Of that sum, $2037 was for wages occurring in her unemployment base year, July 1, 2005, through June 30, 2006. No appeal was taken from that decision. Because of the additional wages paid to Gordon in accord with the Division of Wage and Hour award, the Appeal Tribunal modified the original determination of the deputy claims examiner and found her eligible at the higher but maximum weekly benefit rate of $521, and therefore eligible for a maximum benefit amount of $9899. Some of the issues she raises relate to her employment with Strauss and not to unemployment benefits per se.

Despite Gordon's extensive points on appeal, we simply cannot discern the specific claim of error, or any support in the record substantiating her claims. She may be asserting that unemployment owes her the difference between $418 and $506 for twenty-three weeks, as she alleges she only received the difference between $506 and $521 for nineteen weeks. Nothing in the record supports that assertion, however. Unfortunately, claimant established only nineteen base weeks of employment in the base year with earnings in excess of $123. Some of the weeks for which she established a higher rate may have occurred after the June 30, 2006 base year.

Gordon received the maximum weekly benefit for which an individual would be eligible for the year. 37 N.J.R. 5045(a) (Dec. 19, 2005). Having received the maximum weekly benefit rate, her maximum annual benefit amount of $9899 was also correct. Nineteen base weeks of employment multiplied by Gordon's weekly benefit rate of $521 equals $9899 as calculated in accord with N.J.S.A. 43:21-3(d)(1)(B)(i). Any alleged overtime or cash wages which Gordon believes were wrongfully withheld by her former employer, if not proven, do not increase either her weekly benefit or her maximum annual benefit.

We are satisfied that Gordon has not met her burden of proving that the agency's decision was arbitrary, capricious or unreasonable, or that it was not supported by substantial credible evidence in the record as a whole.

Affirmed.

20100127

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