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Troy Florexil v. Board of Review and Acs Transportation Solutions

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 14, 2011

TROY FLOREXIL, APPELLANT,
v.
BOARD OF REVIEW AND ACS TRANSPORTATION SOLUTIONS, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 240,226.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 3, 2011

Before Judges Cuff and Simonelli.

Claimant Troy Florexil appeals from a final decision of the Board of Review (Board) denying his claim for unemployment benefits. The Board affirmed the decision of the Appeal Tribunal, which found that claimant's driver's license was suspended and possession of a valid driver's license was a requirement of his employment. Therefore, the termination of claimant's employment was considered voluntary and without good cause attributable to his work. We affirm.

The ability of an appellate tribunal to review final decisions of administrative agencies is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We review factual findings to determine whether there is sufficient credible evidence in the record to support the findings of fact. Ibid. We also review the decision to determine whether it is consistent with governing statutes and rules. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

In Yardville Supply Co. v. Board of Review, 114 N.J. 371, 372 (1989), the Court held that a truck driver who lost his job due to the suspension of his driver's license left his job voluntarily without good cause attributable to his work. The Court explained the rule as follows:

Where it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his 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). A driver's license is a prerequisite of employment for those, such as Sparks, who drive for a living. Nevertheless, Sparks jeopardized his license by engaging in a foolish, voluntary act. As such, he cannot claim to be the sort of "involuntarily unemployed" individual that the Unemployment Compensation Act is designed to protect. [Id. at 377.]

See also N.J.A.C. 12:17-9.10(a).

N.J.S.A. 43:21-5(a) provides that an individual who leaves work voluntarily without good cause attributable to the work is disqualified from receipt of unemployment benefits. The burden is on the claimant to prove his right to benefits. Brady, supra, 152 N.J. at 218. Here, claimant had the burden to prove that a driver's license was not a prerequisite for his job.

Accepting the findings of fact of the Appeal Tribunal, the Board found that claimant was employed as a field technician and had been assigned a company vehicle. He was driving the company vehicle at the time of the accident, and had received a citation for driving while intoxicated. Although some field technicians could use public transportation, claimant's route required use of a vehicle. In addition, the Appeal Tribunal found that the employer did not have open positions that required no driving for the duration of the suspension. These findings are supported by sufficient credible evidence in the record.

The finding that the loss of claimant's employment was a voluntary act is consistent with the law. In Yardville, the claimant testified that he occasionally worked in the yard. 114 N.J. at 378. He was also told that an effort would be made to assign him to non-driving duties, if his license was suspended. Id. at 373. When his license was suspended and he was told there was no work in a non-driving capacity, his termination was considered a voluntary quit. Ibid. Here, the facts are remarkably similar to the facts in Yardville where the Court upheld the denial of benefits.

Finally, the record also does not support claimant's position that a language barrier prevented him from fully developing the record before the hearing examiner. Our review of the record reveals that claimant argued that a driver's license was not a prerequisite of employment, that the policy advanced by the employer is an after-the-fact invention, that he was informed a non-driving position would be found for him, and that non-driving positions existed when he was terminated. The employer, however, presented evidence to the contrary. The Appeal Tribunal accepted the employer's evidence, there is sufficient credible evidence in the record to support the Appeal

Tribunal's findings accepted by the Board, and we are obliged to affirm the agency decision.

Accordingly, we affirm the April 15, 2010 final decision of the Board.

Affirmed.

20110214

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