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Kaplan v. Board of Review

Superior Court of New Jersey, Appellate Division

August 9, 2013

MORRIS KAPLAN, Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, and D.M.S. SECURITY SYSTEMS, INC., Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 18, 2012

On appeal from the Board of Review, Department of Labor, 345-085.

Morris Kaplan, appellant, pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

Respondent D.M.S. Security Systems, Inc., has not filed a brief.

Before Judges Parrillo and Messano.

PER CURIAM

Morris Kaplan appeals from the final decision of the Board of Review (the Board) that affirmed the decision of the Appeal Tribunal (the Tribunal) and denied Kaplan's application for unemployment benefits. We affirm.

The record discloses that Kaplan was employed as a security guard by D.M.S. Systems, Inc. (DMS), from November 2010 until May 2011. He applied for unemployment benefits, and the Deputy determined Kaplan was eligible for benefits without disqualification from June 12, 2011. DMS appealed, and the matter was heard by the Tribunal via telephonic argument on October 24, 2011.

Kaplan asserted that he left his employment because he was "verbally abused" by his immediate supervisor, Deretta McCarthy. Wanda Bennett, the president of DMS, testified that Kaplan "resigned on his own." McCarthy also testified that she never verbally abused Kaplan, DMS offered him a position with another client which he refused and Kaplan was "welcome to come back."

The Tribunal determined Kaplan was disqualified pursuant to N.J.S.A. 43:21-5, which provides in relevant part that an employee is ineligible for benefits if he "left work voluntarily without good cause attributable to such work . . . ." Kaplan appealed, and, on April 5, 2012, the Board issued its final decision, affirming the Tribunal's decision. This appeal ensued.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported by sufficient credible evidence, [we] are obliged to accept them." Brady, supra, 152 N.J. at 210 (quotations and citations omitted); Bustard v. Bd. of Review, 401 N.J.Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

Before us, Kaplan asserts that he left the employ of DMS "[a]s a result of the verbal abuse and health concerns." He includes in his appendix a letter from Dr. Suzanne Kabis, dated November 18, 2011, indicating Kaplan was advised against accepting the transfer to another position, at the Middlesex County Sewage Authority treatment plant, because of "the risk of potentially toxic bacteria." Kabis further explained that Kaplan's wife was receiving chemotherapy treatment for cancer, ...


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