DAVID R. GARRETT VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0091-17T4

DAVID R. GARRETT,

Appellant,

v.

BOARD OF REVIEW and THE
TOWNSHIP OF MOUNT LAUREL,

Respondents.
_____________________________

Submitted August 14, 2018 – Decided August 21, 2018

Before Judges Messano and Geiger.

On appeal from the Board of Review, Department
of Labor, Docket No. 116,143.

David R. Garrett, appellant pro se.

Shareef M. Omar, Deputy Attorney General,
argued the cause for respondent Board of
Review (Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Shareef M. Omar,
on the brief).

Lauren E. Tedesco argued the cause for
respondent Township of Mount Laurel (Capehart
& Scatchard, PA, attorneys; Joseph F. Betley,
of counsel; Lauren E. Tedesco, on the brief).
PER CURIAM

David R. Garrett appeals from a June 30, 2017 final decision

by the Board of Review, which found he was disqualified from

receiving unemployment benefits, pursuant to N.J.S.A. 43:21-5(a),

on the grounds that he left work voluntarily without good cause

attributable to the work. We affirm.

The facts derived from the record are summarized as follows.

Garrett was employed by respondent Township of Mount Laurel as an

electrical inspector from March 28, 2016 through February 22,

2017, when he voluntarily left work. On February 22, 2017, Garrett

was instructed by the Township's Acting Manager, Meredith Tomcxyk,

and Construction Official, George Dittmar, that he could no longer

continue in the position of electrical inspector because his work

was not acceptable. Garrett was offered a lateral transfer to a

position as a housing inspector, with the same hours and rate of

pay. During the meeting with Tomcxyk and Dittmar, Garrett informed

them that he did not possess a hotel and multiple dwelling

inspector's license which was required to perform State

inspections, but not local inspections. Garrett believed he could

not legally accept the housing inspector position. Tomcxyk

discussed the possibility of Garrett obtaining the necessary

license to perform State inspections at a later date. At the

conclusion of the meeting, it was agreed Garrett would have until

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February 24, 2017, to decide whether he would accept the lateral

transfer.

The next day, Garrett sent an email to Dittmar requesting to

return on February 24, 2017, to pick up his belongings and return

the coats and shirts the Township had issued to him. Dittmar

responded, stating: "I'm assuming this is your letter of

resignation in writing." Dittmar asked Garrett when he would be

dropping off the uniform clothing and picking up his belongings.

Garrett responded: "Okay, I'll come tomorrow around noon. Please

make sure my vehicle is there. I have several things in it."

Garrett never returned to work after February 22, 2017, and

did not advise the Township he was not resigning until April 26,

2017, when he sent an email to Tomcxyk and Dittmar, stating his

February 23, 2017 email was not a letter of resignation. Instead,

Garrett applied for unemployment benefits on February 19, 2017.

His application was denied by Deputy Director K. Schofield on

April 5, 2017. The Notice of Determination stated:

You are disqualified for benefits from
02/19/17 and will continue to be disqualified
until you have worked eight or more weeks in
employment and have earned at least ten times
your weekly benefit rate.

You left work voluntarily on 02/23/17.

You were not laid off by your employer
as you stated. Evidence indicates you
voluntarily quit your job after being asked

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 to transfer to a position you felt you were
not licensed for. There is insufficient
evidence your employer terminated your
position.

Therefore, your reason for leaving does
not constitute good cause attributable to the
work. You are disqualified for benefits.

On April 11, 2017, Garrett appealed from the determination

of the Deputy. The Appeal Tribunal conducted a telephonic hearing

on May 5, 2017, and issued a written decision on May 11, 2017,

affirming the determination of the Deputy Director. In its

decision, the Appeal Tribunal stated:

In this case, the claimant voluntary left
work. The claimant contended that he was
being immediately removed from his current
title and the new job offer was a role on the
state level that required an additional
license, for which he did not have. The
claimant further supported his assertion by
providing the job requirement for the job he
believed the employer's offer was for.
However, the employer also provided supporting
documentation of the job that was offered, for
which the claimant was qualified for on the
local level of employment. The employer also
provided factual information regarding the
governance of state employees by the Civil
Service Commission, with regards to the
promotion, demotion, and reassignment of
employees. Accordingly, the claimant's
contention is rejected.

The employer's offer of possible new work
was indicative of the employer's willingness
to preserve the employer-employee
relationship. The claimant was not in
immediate threat of being discharged and
continued work was available for him in his

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 current work had he not voluntarily left the
job. The claimant contended that he did not
voluntary leave his job as the email does not
state it was a letter of resignation. However
it was implied in the email chain and the
claimant actions thereafter with regards to
his response and actions to collect his things
are indicative of voluntarily leaving the job.
Resultantly this contention is also rejected.

Ultimately, the appeal Tribunal
considers the employer's testimony to be more
credible than that of the claimant's, and does
not view the claimant's reason for voluntarily
leaving work to constitute good cause.
Consequently, the claimant is disqualified for
benefits as of 02/19/17, under N.J.S.A. 43:21-
5(a), as the claimant left work voluntarily
without good cause attributable to such work.

Garrett appealed the Appeal Tribunal's decision to the Board

of Review. On June 30, 2017, the Board of Review affirmed the

Appeal Tribunal's decision. This appeal followed.

On appeal, Garrett repeats the arguments he raised before the

tribunal. He contends that he was not legally permitted to perform

housing inspections because only inspectors licensed by the State

may perform inspections of tenement houses, public housing,

hotels, and multiple dwellings. He further contends that contrary

to the Board of Review's decision, he demonstrated that he left

work for good cause directly attributable to the work.

Our review of final decisions by the Board of Review is

strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210

(1997). The Board's decision may not be disturbed unless shown

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to be arbitrary, capricious, unreasonable, or inconsistent with

the applicable law. Ibid. "If the Board's factual findings are

supported 'by sufficient credible evidence, courts are obliged to

accept them,'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453,

459 (1982)), "even if the court might have reached a different

result," Greenwood v. State Police Training Ctr., 127 N.J. 500,

513 (1992)).

"Claimants bear the burden of proof to establish their right

to unemployment benefits. Furthermore, when an employee leaves

work voluntarily, he bears the burden to prove he did so with good

cause attributable to work." Brady, 152 N.J. at 218 (citations

omitted).

A claimant is statutorily disqualified for unemployment

benefits "[f]or the week in which the individual has left work

voluntarily without good cause attributable to such work, and for

each week thereafter until the individual becomes reemployed and

works eight weeks in employment. . . ." N.J.S.A. 43:21-5(a).

"'Good cause' is not statutorily defined, but our courts have

construed the statute to mean 'cause sufficient to justify an

employee's voluntarily leaving the ranks of the employed and

joining the ranks of the unemployed.'" Trupo v. Bd. of Review,

268 N.J. Super. 54, 57 (App. Div. 1993) (quoting Domenico v. Bd.

of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)). To

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constitute good cause, "[t]he decision to leave employment must

be compelled by real, substantial and reasonable circumstances."

Domenico, 192 N.J. Super. at 288.

Garrett was not given formal written notice of termination.

Nor was he told by his employer that he was being removed from

employment effective immediately. Instead, Garrett was offered a

lateral transfer to a position as a housing inspector, which

involved the same hours and rate of pay as his position as an

electrical inspector, and was given time to discuss the offer with

family members. He declined to accept the offer and left work

voluntarily.

Although Garrett contented he was precluded from performing

any housing inspections, the Township had previously adopted an

ordinance creating the position of housing inspector for local

inspections of rental registrations, which does not require

certification or licensure by the State. Thus, Garrett was

eligible to serve in the lateral position offered to him since he

was qualified to perform local inspections of single family

residences even though he did not possess a license to perform

state inspections of multiple dwellings and hotels. There is no

indication the Township expected him to inspect multiple dwellings

and hotels prior to obtaining the required license from the State.

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On the contrary, inspections of multiple dwellings and hotels are

performed by a state licensed inspector.

Our examination of the record, in light of our standard of

review, satisfies us that the credible evidence amply supported a

finding that Garrett did not leave work for good cause attributable

to such work. The Board of Review's final decision disqualifying

Garrett from unemployment benefits pursuant to N.J.S.A. 43:21-5(a)

was not arbitrary, capricious, or unreasonable.

Affirmed.

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