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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...