Opinion
DOCKET NO. A-0772-12T1
01-07-2014
CARLOS M. POLANCO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and CONTINENTAL SEASONING, INC., Respondents.
Kenneth R. Rush argued the cause for appellant (DiLorenzo & Rush, attorneys; Mr. Rush, of counsel and on the briefs). Christopher M. Kurek argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Fasciale and Haas.
On appeal from the Decision of the Board of Review, Department of Labor, Docket No. 306,550.
Kenneth R. Rush argued the cause for appellant (DiLorenzo & Rush, attorneys; Mr. Rush, of counsel and on the briefs).
Christopher M. Kurek argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, of counsel and on the brief).
Respondent Continental Seasoning, Inc. has not filed a brief. PER CURIAM
Carlos M. Polanco appeals from the July 12, 2012 final agency decision by the Board of Review, Department of Labor, Division of Unemployment and Disability Insurance (the "Board"), concluding that he was ineligible to receive unemployment benefits pursuant to N.J.S.A. 43:21-5(b). We affirm.
Polanco worked in a supervisory capacity for Continental Seasoning, Inc. (CSI), a food manufacturing company. CSI discharged Polanco for stealing approximately five pounds of sugar. In February 2012, the Appeal Tribunal conducted a telephonic hearing. The examiner listened to testimony from Polanco and Steven Wagner, a CSI plant manager. Wagner testified that he learned from the owner of CSI that a local pizza or deli shop purchased spices from Polanco. Wagner investigated the report by watching approximately one week of footage from CSI security cameras, in which he noticed Polanco carrying a shopping bag as Polanco exited CSI each day. Wagner then waited by the employee time clock, and as Polanco left for the day, Wagner inspected his backpack and observed the stolen sugar. Wagner testified that
In October 2010, a Deputy Director determined that Polanco was disqualified to receive benefits. Polanco appealed, but he failed to appear at a November 2010 Appeal Tribunal proceeding. In January 2011, Polanco appeared for a rescheduled Appeal Tribunal hearing, but CSI did not participate. As a result, in May 2010, the Board determined that CSI's failure to appear constituted good cause and directed that another hearing be scheduled.
I asked him to open his bag, and . . . he said, "Please don't." And I said, "No. No. I have to[]." I pulled him over [and said,] I have to see what's in your bag." And when he opened the bag there was maybe five pounds of sugar [and] several other items . . . that he was stealing.Wagner also testified that his review of the video footage showed Polanco carrying a bag that looked "rather full," and that the individual from the pizza store advised him that Polanco had been selling them spices "for quite a while." Polanco testified that Wagner gave him the sugar, a statement that Wagner adamantly denied.
The Appeal Tribunal determined that Polanco was disqualified from receiving unemployment benefits and stated that
[Polanco] had been employed full time with [CSI and CSI] discharged [Polanco] from employment for theft. [Polanco's] theft of miscellaneous products from [CSI] was the sole cause for [termination]. . . . [Wagner] did not give the stolen products in question as gifts to [Polanco].Polanco then appealed to the Board. In July 2012, the Board agreed with the Appeal Tribunal, and disqualified Polanco from receiving the benefits.
. . . .
In this case, [CSI] discharged [Polanco] for his theft of company property. [Polanco] denied the theft and further contended that [Wagner] gave him a gift only to subsequently fire him for receiving the "gift." All of [Polanco's] contentions are
categorically rejected by the [Appeal] Tribunal.
On appeal, Polanco argues that the Board's decision is not supported by sufficient credible evidence, and that the Appeal Tribunal examiner deprived Polanco of his right to cross-examine Wagner.
The burden of proof rests upon Polanco to establish his right to unemployment compensation, Brady v. Bd. of Review, 152 N.J. 197, 218 (1997), and our review of agency determinations is limited, In re Stallworth, 208 N.J. 182, 194 (2011); In re Taylor, 158 N.J. 644, 656 (1999). We defer to such decisions, unless they are found to be arbitrary, capricious, or unsupported by fair evidence in the record as a whole. Russo v. Bd. of Trs., Police & Fire Ret. Sys., 206 N.J. 14, 27 (2011); In re Carter, 191 N.J. 474, 482 (2007). If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. See L.M. v. State, Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Taylor, supra, 158 N.J. at 657.
The Board determined that Polanco was ineligible to receive benefits because of severe misconduct. Pursuant to N.J.S.A. 43:21-5(b), "theft of company property" constitutes severe misconduct. Here, the appeals examiner rejected Polanco's testimony that Wagner gave him the sugar as a gift and determined that CSI discharged Polanco from employment for the theft of company property. These findings were properly adopted by the Board, and its decision to disqualify Polanco from benefits was supported by substantial, credible evidence and is not arbitrary.
We also reject Polanco's contention raised for the first time on appeal that the examiner deprived him of his right to cross-examine Wagner. This argument is belied by the record. The examiner explained to Polanco the Appeal Tribunal hearing procedure, informed Polanco that he could question Wagner, and asked Polanco if he had any questions for Wagner.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION