July 15, 2013
CORNELIUS M. ALLEN, Appellant,
BOARD OF REVIEW, DEPARTMENT OF LABOR, and EGG HARBOR LUBRICATION, L.L.C., Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2013
On appeal from the Board of Review, Department of Labor, Docket No. 317, 131.
Cornelius M. Allen, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
Respondent Egg Harbor Lubrication, L.L.C, has not filed a brief.
Before Judges Ashrafi and Guadagno.
Cornelius M. Allen appeals from the October 31, 2011 final determination of the Board of Review (Board) affirming the decision of the Appeal Tribunal which reversed an earlier determination by the Division of Unemployment that Allen was eligible for unemployment benefits. The Appeal Tribunal found that Allen left work voluntarily, without good cause, and was therefore disqualified for benefits.
The following facts are gleaned from the record developed before the Appeal Tribunal. Allen was hired by Egg Harbor Lubrication, L.L.C., t/a Jiffy Lube (Jiffy Lube) in 2002. He was promoted to assistant manager in 2009 and worked at Jiffy Lube's Egg Harbor location.
On October 20, 2010, Allen was in the top garage area working with other technicians assigned to the lower bay. One of the lower bay technicians that day was PJ Pattison. After Pattison completed his work on a vehicle, he called up to Allen to start the vehicle's engine. Allen ignored several requests from Pattison to start the engine. Allen testified that he ignored Pattison after Pattison yelled at him to "start the fucking car." Jiffy Lube General Manager, Theresa Beck, testified that Allen ignored Pattison's repeated requests to start the vehicle. When Pattison, who is white, asked again, Beck testified that Allen, who is African-American, knelt down to the grate separating the upper and lower bays, stared at Pattison and said "I don't jump for no white boy." Allen denied making this statement but another Jiffy Lube employee, Dana Thomas, corroborated Beck's testimony that Allen made the statement.
Pattison then walked up from the lower bay and confronted Allen, asking him what he had said. According to Beck, Allen pushed Pattison backwards. Pattison then punched Allen in the face and they began to fight. After the fight was broken up, Pattison was escorted off the premises. Allen called the police and was taken to the hospital for treatment of cuts and bruises. Thomas confirmed Beck's testimony that Allen instigated the fight.
When Allen returned from the hospital, he got into a verbal altercation with Beck. Allen was told that he would be suspended pending an investigation. According to Beck, Allen then called her "stupid, dumb" and "white trash." After Beck told him she was calling the police to have him removed, Allen left.
Regional Manager William Nelson investigated the incident and issued final written warnings to Allen and Pattison. They were both told they would not be terminated and would be allowed to return to work as long as they signed the warnings acknowledging the factual findings of Nelson. Allen refused to sign the document because he claimed the findings were false. Allen asked for some time to think it over and was given a few weeks to decide.
Allen then informed Nelson that he would not sign the form unless it was altered to contain a "truthful" statement. Nelson and Allen then communicated via e-mail regarding Allen's future with the company. In an e-mail, Allen wrote to Nelson:
I am not resigning. I am simply telling you that I will not sign a false report. I will go back to work, but I refuse to put my signature on a falsified report. I can offer changes to the report that will represent a more accurate version. Please speak to the other employees regarding the incident to ensure my safety . . . in the workplace. I do not feel safe working in a hostile environment. Let me know when I can return to work.
Nelson responded that he conducted a full investigation, which included interviews of employees and customers who were present, and that Allen's version of the incident did not "hold up." Specifically, Nelson wrote that Allen's "statement isn't true [and] lacked details to what happened before and after the altercation as though you found it irrelevant or hiding the truth."
Because Allen refused to sign the corrective action plan/final written warning, Nelson informed him that he considered his previous email as his "resignation" and concluded that Allen abandoned his job. Nelson directed Allen to turn in his keys and uniforms.
After the police responded on October 20, 2011, a report was filed concluding that there was probable cause to charge Pattison with simple assault. Pattison was tried in municipal court on December 9, 2010, and convicted of simple assault against Allen, N.J.S.A. 2C:12-1(a).
On November 14, 2010, Allen filed a claim for unemployment benefits. The initial determination of the Director of the Division of Unemployment Insurance (Director) was that Allen was eligible for benefits because his discharge "was not for simple misconduct connected with the work[, ]" and he had shown "good cause for refusing to sign the writeup."
Jiffy Lube appealed. The Appeal Tribunal conducted a hearing on April 5, 2011, and heard the testimony of Allen, Nelson, Beck, Thomas and Jodie Kirschner. The Appeal tribunal reversed the decision of the Director, finding:
The witness testimony clearly indicated that the claimant initiated the physical altercation. The employer was within its right to issue the claimant a warning. Since the purpose of the warning is to establish a record that the claimant was advised that his behavior was unacceptable and further violations of company policy would result in immediate termination, the claimant's contention that he refused to sign because he disagreed with it is without merit. Accordingly, the claimant's refusal to sign the warning was unreasonable. The claimant had the choice to remain employed. He initiated the separation by not returning to the job.
The claimant's dissatisfaction with the contents of a final warning is not considered a cause sufficient enough to justify one leaving the ranks of the employed to join the ranks of the unemployed. The claimant left work voluntarily without good cause attributable to such work. Therefore, he is disqualified for benefits as of 11/07/2010 in accordance with N.J.S.A. 43:21-5(a).
The Board of Review approved the findings of the Appeal Tribunal and determined that claimant "was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing."
On appeal, Allen challenges the findings of the Appeal Tribunal. He claims that he left his job out of concern for his safety after being attacked by Pattison. He also urges that the doctrines of res judicata and collateral estoppel precluded the Appeal Tribunal from "re-litigating" the assault and were bound by the findings of the municipal judge that Pattison assaulted Allen.
Appellate courts have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. In re Distribution of Liquid Assets, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Board of Review, 152 N.J. 197, 210-11 (1997). The scope of our review of an administrative decision is limited to determining "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole, ' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). We must uphold the finding of an administrative agency if that finding is supported by sufficient or substantial credible evidence in the record. In re Suspension of License of Silberman, 169 N.J.Super. 243, 255-56 (App. Div. 1979), aff'd, 84 N.J. 303 (1980); In re Grossman, 127 N.J.Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974).
At the conclusion of the hearing, the Appeal Tribunal found Allen disqualified for unemployment benefits pursuant to N.J.S.A. 48:21-5(a). That statute provides "[a]n individual shall be disqualified for [unemployment] benefits: For the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." Good cause is defined as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b). "The burden of proof is on the claimant to establish good cause attributable to such work for leaving." N.J.A.C. 12:17-9.1(c).
In Domenico v. Board of Review, 192 N.J.Super. 284, 288 (App. Div. 1983), we identified that the factors to be considered when determining the existence of good cause:
In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily. The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones . . . [I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.
In Domenico, an employee quit after being assaulted twice in a closed ward at a state psychiatric hospital. Id. at 287. In Condo v. Board of Review, 158 N.J.Super. 172, 173 (App. Div. 1978), an employee left work after repeatedly being threatened. In both cases, good cause was found based on the reasonable likelihood that the employees were in danger of being harmed. Id. at 174; Domenico, supra, 192 N.J.Super. at 288.
We find both cases distinguishable from the present case. Here, the appeals examiner found that Allen instigated the confrontation with Pattison. This finding is firmly supported in the record through the testimony of witnesses to the altercation and is entitled to our deference. In addition, there is no evidence of any other incidents at the workplace which resulted in injury to Allen. We also note that in Allen's e-mails, he stated his reason for not returning to work was due to his refusal to sign the written final warning statement because he claimed it was false. While he did mention his fear of being harmed in one of the e-mails, it was clear that his primary concern was signing his name to what he felt was a false statement. The "imminent danger" which existed in Domenico and Condo simply was not present here. Both Nelson and Beck testified that Pattison had never shown dangerous propensities on any prior occasions.
The employee must also "do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J.Super. at 288. In this case, claimant was given several opportunities to return to work if he signed the written warning. His refusal to sign the warning precluded his resumption of employment. The appeals examiner found that "dissatisfaction with the contents of a final warning is not considered a cause sufficient . . . to justify one leaving the ranks of the employed to join the ranks of the unemployed."
Allen next claims that the doctrines of res judicata and collateral estoppel require the Board and the Appeals Tribunal to accept the determination of the municipal court that Pattison was guilty of simple assault. We disagree.
The doctrine of res judicata bars "relitigation of claims or issues that have already been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). It provides that "a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." Ibid.
For the doctrine of res judicata to bar an action, there must be "substantially similar or identical causes of action and issues, parties, and relief sought" between the two actions, and a final judgment must have been entered in the earlier action by a court of competent jurisdiction. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). Neither of these criteria has been met here.
The issue before the municipal court was whether the State proved that Pattison was guilty of simple assault. The Board was not a party to the municipal proceeding. Moreover, the issue before the Appellate Tribunal was not whether Pattison assaulted Allen, but whether Allen left work voluntarily without good cause.
For collateral estoppel to apply, a party must establish that: (1) the issue to be precluded is identical to the issue previously decided; (2) the issue was actually litigated in the prior suit and the party had a full and fair opportunity to litigate it; (3) there was a final judgment on the merits in the prior action; (4) the determination of the issue sought to be precluded was essential to the prior judgment; and (5) the party against whom preclusion is asserted was a party to or in privity with a party to the earlier proceeding. In re Estate of Dawson, 136 N.J. 1, 20-21 (1994).
We reject Allen's argument that the Appeals Tribunal acted arbitrarily capriciously and unreasonably in ignoring the municipal court's findings and find it without sufficient merit to warrant extensive discussion in a written opinion R 2:11-3(e)(1)(E)