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Superior Court of New Jersey, Appellate Division.

BRIAN WHALEN, Petitioner–Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and DAVE TARTAGLIONE, Respondents–Respondents.

DOCKET NO. A–2823–10T3

    Decided: April 15, 2014

Before Judges Fisher and O'Connor. Thomas W. Williams, attorney for appellant. 1 John J. Hoffman, Acting Attorney General, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). Law Office of Robert W. Mayer, attorneys for respondent Dave Tartaglione (Robert W. Mayer, on the brief).

In considering this appeal of the denial of unemployment benefits, we briefly discuss its procedural history because that history informs our decision.

Appellant Brian Whalen was employed by Park Ridge Florist (the employer) from 1999 until he resigned on April 23, 2010.   Two days later, Whalen filed a claim for unemployment benefits, claiming he did not voluntarily resign but did so because of harassment by a co-worker.   The Deputy Director found Whalen eligible, and the employer appealed.   On July 8, 2010, the Appeal Tribunal conducted a hearing and found Whalen disqualified from receiving benefits.   Whalen filed a timely appeal with the Board of Review, which affirmed the Appeal Tribunal on January 18, 2011.

Whalen filed a timely appeal in this court.   After the matter was briefed by both Whalen and the employer, the Board of Review moved for a remand so that it might consider Whalen's hostile work environment claim.   We granted that motion on April 26, 2012, but retained jurisdiction.   The Board immediately entered an order that “reopen[ed] the matter, set[ ] aside its prior decision, and remand [ed] the matter to the Appeal Tribunal for a new hearing and decision.”

On May 8, 2012, the Appeal Tribunal conducted a hearing – at which Whalen, his attorney, and the employer participated – and concluded in its May 18, 2012 written decision that Whalen's claim of a hostile work environment was “not credible,” and there was “no evidence ․ to support a finding that there was any mistreatment or that the co[-]worker engaged in any behavior that could be considered confrontational, volatile or divisive.”

Whalen took no further action with respect to this decision.   He did not appeal to the Board of Review, and he did not further prosecute his appeal –over which we, perhaps mistakenly, retained jurisdiction.2  As a result, the Board of Review moved in this court for a dismissal of the appeal due to Whalen's failure to exhaust his administrative remedies.   Although unopposed, we denied that motion on December 20, 2012.   The following month, Whalen's attorney moved to be relieved as counsel;  we granted his motion on February 22, 2013.   Our order further directed the attorney to serve a copy of the order on Whalen and to provide this court with proof of service, which was later filed.

On April 30, 2013, the Clerk filed and served an amended scheduling order, which required the submission of Whalen's brief and appendix by May 30, 2013.   Whalen did not comply.   In fact, nothing further was ever filed by Whalen in this matter.   The Board of Review filed a brief on October 4, 2013.

We are satisfied that Whalen has both failed to exhaust the administrative remedy available to him – i.e., the right to appeal the Appeal Tribunal's decision to the Board of Review – and has otherwise abandoned the appeal currently pending in this court.   Indeed, even if we were to entertain the arguments on the merits formerly posed by Whalen through his attorney, we would affirm, because there is nothing in the record 3 to suggest the Appeal Tribunal's findings are unworthy of our deference.   See Brady v. Board of Review, 152 N.J. 197, 210 (1997);  Apogee Trucking, L.L.C. v. Board of Review, 429 N.J.Super. 552, 554 (App.Div.2013).



2.  FN2. Because, following our remand order, the Board of Review set aside its earlier final agency decision, there was nothing for this court to retain jurisdiction of.

3.  FN3. A transcript of the May 8, 2012 hearing in the Appeal Tribunal was submitted and is part of the record on appeal.


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