1. law, govt and politics

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3439-12T3
WALTER CORTADO,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR AND WORKFORCE DEVELOPMENT
and PROFULGENT TECHNOLOGY, LLC,
Respondents.
_________________________________
Submitted September 22, 2014
-
Decided October 16, 2014
Before Judges Sabatino and Guadagno.
On
appeal
from
the
Board
of
Review,
Department
of
Labor
and
Workforce
Development, Docket No. 383,998.
Walter Cortado, appellant pro se.
John J. Hoffman, Acting Attorney General,
attorney for respondent (Nicole M. DeMuro,
Deputy Attorney General, on the brief).
Profulgent
se.
Technology,
LLC,
respondent
pro
PER CURIAM
Pro
se
claimant
Walter
Cortado
appeals
the
Board
of
Review's final agency decision of January 9, 2013, concluding
that he is not entitled to unemployment benefits because his
employer, Profulgent Technology, LLC ("Profulgent") discharged
him for severe misconduct within the meaning of N.J.S.A. 43:215(b).
We affirm.
The
Board
ratified
the
determination
of
the
Appeal
Tribunal, which found that Cortado had been justifiably fired
for excessive absenteeism and tardiness, after repeated warnings
from his supervisor.
There is substantial credible evidence in
the record to support that finding, including e-mails between
Cortado and his superior.
Cortado's repeated violations of the
employer's policies satisfy the revised statute's intermediate
standard of severe misconduct, as interpreted by our court in
Silver v. Bd. of Review, 430 N.J. Super. 44 (App. Div. 2013).
We held in Silver that severe misconduct requires, at a
minimum, proof of the same state of mind on the part of the
claimant needed to show simple misconduct.
Silver, supra, 430
N.J. Super. at 55-56. Specifically, it must first be shown that
the
claimant's
actions
that
resulted
in
his
discharge
were
"improper, intentional, connected with the work, malicious, and
within the employee's control." Id. at 53 (emphasis omitted);
see also N.J.A.C. 12:17-10.2 (defining misconduct).
conduct
must
"also
be
either
a
deliberate
Second, the
violation
of
the
employer's rules or a disregard of the standards of behavior
which the employer has the right to expect."
Silver, supra, 430
N.J. Super. at 53; see also N.J.A.C. 12:17-10.2.
2
The record
A-3439-12T3
abundantly
supports
the
agency's
determination
that
these
elements were established here.
Although Cortado contends that he missed work for medical
reasons
(hypertension
and
a
bad
knee)
on
the
date
of
his
discharge, he provided no documentation from his physician to
justify his absence. Cortado argues that the notices sent to him
by
his
employer
deficient
warning
because
they
him
did
to
not
correct
attach
concerning tardiness and absenteeism.
his
the
behavior
company's
were
policy
He relies on excerpts
from a website known as "legalzoom.com," recommending methods in
which employers may convey such company policies and warnings.
The contents of that website unquestionably are not competent
legal
authority,
and,
in
any
event,
comprise
mere
recommendations.
We owe deference to the hearing examiner's findings of fact
and credibility assessments, which were thereafter adopted by
the Board.
Am.,
65
Rova Farms Resort, Inc. v. Investors Ins. Co. of
N.J.
474,
484
(1974).
"'[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.'"
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
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A-3439-12T3
(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.'"
Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982));
see also Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29
(1981).
Furthermore,
we
owe
deference
to
the
Board
of
Review's
expertise in unemployment cases and its repeated construction
and application of the standards of Title 43.
See, e.g., Brady,
supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J.
Super. 241, 245 (App. Div. 1985).
Unless the Board of Review's
action "was arbitrary, capricious, or unreasonable, [its] ruling
should not be disturbed."
Brady, supra, 152 N.J. at 210.
Applying this well-established limited scope of review, we
sustain the agency's denial of benefits, which plainly comports
with the governing law and the examiner's factual findings based
on the evidence.
Affirmed.
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A-3439-12T3