June 29, 2012
KENNETH W. REDHEFFER, APPELLANT,
BOARD OF REVIEW AND LAIDLAW TRANSIT MANAGEMENT, RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 279,549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 12, 2012
Before Judges Axelrad and Parrillo.
Claimant Kenneth W. Redheffer appeals from a final decision of the Board of Review finding him disqualified for unemployment benefits under N.J.S.A. 43:21-5(a) for having left work voluntarily without good cause attributable to the work. We affirm.
Claimant was hired by respondent Laidlaw Transit Management (Laidlaw) as a school bus driver in January 2000, a position that required he possess a Class B driver's license. He lost his job on March 16, 2010, after his Class B driver's license was suspended due to a then pending indictment charging him with third-degree theft by deception, N.J.S.A. 2C:20-4, and fourth-degree unsworn falsification to authorities, N.J.S.A. 2C:28-3a, based on allegations that claimant collected $29,669 in unemployment benefits between December 29, 2001 and June 19, 2004 while employed by Laidlaw.*fn1
Claimant filed a claim for unemployment benefits, which was denied by the deputy director of the Division of Unemployment and Disability Insurance, who reasoned:
You left work voluntarily on 3/16/10. You were employed in a position which required a valid driver's license as a prerequisite of employment. Your position was solely dependent on possession of this license. employment ended when you lost this license for committing a voluntary act. You were aware that your actions could jeopardize your license. Therefore, your separation is considered to be a voluntary quit without good cause attributable to the work. You are disqualified for benefits.
Claimant appealed to the Appeal Tribunal, which, after a hearing on May 18, 2010, affirmed the deputy's determination, relying on Yardville Supply Company v. Board of Review, Department of Labor, 114 N.J. 371 (1989). Claimant then appealed to the Board of Review (Board), which affirmed the Tribunal's decision. Claimant now challenges the Board's decision as erroneous.
Our scope of review of an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). 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 Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will 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); Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).
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, supra, 152 N.J. at 218. Good cause means "cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed[,]" id. at 214 (internal quotation marks and citations omitted), 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 quotation marks and citation omitted).
In Yardville, supra, the Court held that a truck driver, who lost his job because his driver's license was suspended for six months following his conviction on a non-work related charge of driving while intoxicated, left work without good cause pursuant to N.J.S.A. 43:21-5(a), and was therefore disqualified for unemployment benefits. 114 N.J. at 374-75. In rejecting the claim, the Yardville Court, citing its prior decision in Self v. Board of Review, 91 N.J. 453 (1982) held:
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 (footnote omitted).]
Consistent with the Yardville holding, N.J.A.C. 12:17-9.10(a) defines what constitutes a voluntary quit under N.J.S.A. 43:21-5(a) under such circumstances:
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 engaged in a "voluntary" act, which resulted in criminal charges and caused his driver's license to be suspended. This, in turn, rendered him "unemployable" in his position as a school bus driver, for which he had been hired by Laidlaw, and therefore disqualified from unemployment benefits under N.J.S.A. 43:21-5(a).
Claimant's argument that Laidlaw could have continued his employment in some other capacity necessarily fails. The record is devoid of any proof that claimant could have performed work for Laidlaw other than what he was hired to do, which was driving a school bus and transporting children. Indeed, claimant testified before the Appeal Tribunal that once his license was "suspended by the [S]tate," "the company had no other position for me . . . [and they] could not use me anywhere's [sic]." Further, and as noted, once claimant's Class B license was suspended, the DOE notified him that he was no longer "eligible for employment in a school or educational facility under the supervision of the Department."
In sum, the Board's decision finding claimant disqualified from unemployment benefits was "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.