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McKenna v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 11, 2010

FRANCIS MICHAEL MCKENNA, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND RSM MCGLADREY, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 197,371.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 24, 2010

Before Judges Axelrad and Sapp-Peterson.

Francis McKenna filed a claim for unemployment benefits on November 11, 2007, following termination from his employment at RSM McGladrey, Inc. He received benefits that were exhausted as of February 9, 2008. McKenna thereafter filed a claim for emergency unemployment compensation (EUC08) benefits under the Emergency Unemployment Compensation Act (Act), Pub. L. No. 110-252, § 4001, Title IV, 122 Stat. 2323, 2353-57 (2008).*fn1 On August 4, 2008, the EUC Processing Unit mailed a notice of benefit determination to McKenna holding him ineligible for EUC08 benefits on the ground that during the base year period of July 1, 2006 to June 30, 2007, he did not establish twenty base weeks or earn forty times the weekly benefit rate (40 x $535 = $21,440) as required by the Act. See § 4001(d)(2), 122 Stat. at 2354; Federal-State Extended Unemployment Compensation Act of 1970, § 202(a)(5), 26 U.S.C.A. 3304 note. According to the Division records, during the base year period McKenna only worked twelve weeks from April through June, and earned $12,333.34 in wages from his sole employer, McGladrey.

McKenna participated in a telephone hearing with Claims Examiner, Karen Jackson, on Friday, September l9, 2008. Jackson explained to him what the Division records demonstrated. McKenna appeared to be slightly confused during the discussion, stating that he had worked for "seven months - 26 weeks" and had earned "$80,000" in 2007 so he "qualified for the weeks and the money." It is difficult to ascertain from the transcript the exact time frame to which McKenna was referring. He also appeared to intimate that he had other employers during the base term. In response to McKenna's request for additional time to research the matter, the claims examiner allowed him until Monday afternoon, September 22 to submit evidence.

On September 26, 2008, the Appeal Tribunal affirmed the decision of the deputy, holding McKenna disqualified for EUC08 benefits because he did not establish twenty base weeks or establish forty times the weekly benefit rate during the base period according to the aforestated Division records. The appeals examiner noted that "[t]he claimant did not submit evidence that he had additional employment during the base year period" and "[t]he claimant's assertion that he had additional employers [during the base year] is not supported by documentation." On November 6, 2008, the Board of Review affirmed the decision of the Appeal Tribunal without explanation. This appeal ensued.

On appeal, McKenna advises that he submitted documentation to Karen Jackson immediately after the hearing and confirmed that it was received in her office on September 22, 2008. The only submissions that are potentially relevant are a 2006 W-2 wage and tax statement and an earnings summary from Rothstein, Kass & Company, P.C. and a 1099-B statement from Lou Ottrando, L.L.C., and three W-2 wage and tax statements (NJ, CA, MD) from McGladrey. We also note that McKenna submitted a variety of bank statements that are not relevant because they are outside the pertinent base period from July 1, 2006 through June 30, 2007. Based on the appeal examiner's ambiguous statements in her determination, we cannot tell whether she did not receive McKenna's submissions, and thus rendered her decision based on lack of proof by the claimant who has the burden of proof for entitlement to benefits, Brady v. Bd. of Review, 152 N.J. 197, 218 (1997), or whether she reviewed McKenna's submissions and found them wanting because there were no direct deposits, pay checks, or statements from the employers for the relevant period.

Accordingly, we remand for a further hearing in this matter. We remind McKenna that he has the burden of proof to establish by competent credible evidence that he worked at least twenty weeks and earned more than $21,440 for the period from July l, 2006 through June 30, 2007. If he worked for either or both Rothstein, Ottrando or McGladrey during that time, he should obtain letters from each of them specifically listing how many weeks he worked and what his earnings were, and should also provide to the Division direct deposits of any payments from those employers during the base period.

Remanded. We do not retain jurisdiction.


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