PATRICIA L. EMERY v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4228-03T34228-03T3

PATRICIA L. EMERY,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and GO FOR BAROQUE,

Respondents-Respondents.

__________________________________

 

Submitted April 26, 2005 - Decided

Before Judges Wecker and S.L. Reisner.

On appeal from the Board of Review,

Department of Labor, 03-B-07686-000-XO.

Patricia L. Emery, appellant pro se.

Peter C. Harvey, Attorney General, attorney

for respondent Board of Review, Department

of Labor (Michael J. Haas, Assistant Attorney

General, of counsel; John C. Turi, Deputy

Attorney General, on the brief).

Go For Baroque, respondent pro se, has

not filed a brief.

PER CURIAM

Petitioner appeals from a final decision of the Board of Review, reversing the decision of its Appeal Tribunal and disqualifying petitioner for six weeks of unemployment compensation based upon the Board's conclusion that she was "discharged for misconduct connected with the work." N.J.S.A. 43:21-5(b).

During the course of a hearing conducted by telephone, the Appeals Examiner heard testimony from petitioner as well as from several partners of respondent, Go For Baroque, the retail business in which petitioner had been employed. Certain facts were not disputed. Petitioner had been working for the business for six years, and for the preceding five years, she had worked six days per week, Tuesday through Sunday. She was entitled to twelve days of paid vacation each year, and had been permitted over the course of her employment to take additional days off without pay.

The incident that led to petitioner's termination involved Saturday, September 27, 2003. The Appeals Examiner found, and it was undisputed, that petitioner had marked on the store calendar her intention to be off on that date. She had planned to travel to Massachusetts to see her daughter play in a sports event there. The calendar showed that another employee had agreed to work in petitioner's place that day, a fact confirmed in a letter from that employee that was admitted in evidence without objection.

There was disputed evidence with respect to the usual procedure by which petitioner, who was the store manager, arranged to take unpaid days off. There was also evidence that her employers were unhappy with some aspects of her work performance and with the store's earnings during the year 2003, and felt that she was taking too many days off.

The parties presented differing versions of their communications in the days preceding September 27 with respect to petitioner's intention to be away from the store that day. Petitioner testified that she placed the schedule change on the store calendar a month and a half in advance, that the partners had an opportunity to see it, that that was the manner in which employee work schedules were noted in the store, and in which she had previously communicated her intention to be away from the store. Respondent claimed that petitioner was required to have affirmative approval for taking additional days off, and that she took that day off in direct contradiction of her employer's denial of permission.

The parties agree that on September 25 petitioner was told she could not take off on September 27. It is undisputed that no one explicitly told petitioner in advance of September 27 that the consequence of taking that day off was that she would be fired.

Petitioner felt it unfair to have to change her plans, as well as those of the worker who was scheduled to substitute for her and who was counting on the extra day of work. Petitioner therefore took the day off anyway. When she returned to work on Sunday, September 28, three partners in the business (none of whom were otherwise scheduled to be there) were present and promptly told her that she was fired.

There is no statutory definition of "misconduct connected with the work" as grounds for temporary disqualification for benefits under N.J.S.A. 43:21-5(b). We have previously described such misconduct as

an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

[Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956) (internal quotation omitted), certif. denied, 23 N.J. 579 (1957)].

Here, the Appeals Examiner who heard the testimony made written findings of fact which included the following:

The claimant last worked for the above-named employer as a manager from 09/97 through 09/28/03, when separated from employment. The claimant was discharged on 09/28/03, after not reporting to work 09/27/03. The claimant had requested off for 09/27/03 at least one month prior by writing her name on the calendar. The claimant had coverage for her shift. The claimant had requested off previous times on the calendar and no one in authority had told her it was incorrect. The claimant had not been warned about absenteeism. The employer told the claimant [on] 09/25/03 that they did not want her to take off 09/27/03 because she had taken off too many days prior. All prior days off had been approved by the employer. The claimant followed procedure for requesting the day off and because she had plans out of state did not report to work 09/27/03.

. . . .

In this case, the employer contended that the claimant was discharged for excessive absenteeism and ignoring the directive to report to work [on] 09/27/03. However the substantial evidence presented by the claimant was she had requested off prior days by putting her name on the calendar and no one told her this was incorrect. The employer had approved all vacation days prior to this and had not indicated to the claimant that they felt her absenteeism was excessive. An individual has a right to expect that an approved scheduled day off will be honored by the employer. The request had been on the calendar for over a month and the employer withdrew the approved day off two days prior. The claimant's actions, in not reporting to work when her scheduled day off had been approved and she had coverage, did not rise to the level of misconduct connected with the work. Therefore no disqualification arises under N.J.S.A. 43:21-5(b) as the claimant was not discharged for misconduct connected with the work.

[Emphasis added.]

Respondent appealed that decision to the Board of Review. The Board issued its written decision, beginning with these Findings of Fact:

The Findings of Fact as developed by the Appeal Tribunal are substantially correct and are affirmed and adopted as though fully set forth herein, except that the claimant did not follow procedure for requesting time off. She did speak to the employer about taking other time during this same month. She did not advise the employer until two days prior, was specifically told she could not take the day off, and took the day off anyway. (emphasis added).

Contrary to the Examiner's findings, the Board disregarded petitioner's testimony that the custom was for petitioner to "request" days off by writing the schedule on the store-calendar, and for respondent to grant tacit approval by making no objection to the written schedule. The Board then reached a different conclusion:

The Appeal Tribunal found that the claimant was not discharged for misconduct connected with the work. We do not agree. Although she contends that she posted it on desk calendar, her own testimony is that the employer rarely came to the store. She normally spoke to the employer about her time off, including a week for her daughter's wedding just prior to September 27, 2003. Her actions in taking the day off, after being denied permission, constitutes misconduct connected with the work. The claimant is disqualified for benefits from September 28, 2003 through November 8, 2003.

We recognize the limited scope of our review of an agency decision such as this, which is entitled to a presumption of validity. The agency's decision will be sustained unless it is "arbitrary, capricious, or unreasonable [or] . . . 'clearly inconsistent with its statutory mission or with other state policy.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)) (internal citations omitted). Nonetheless, no such deference is required where the head of an agency declines to adopt the findings of fact of the official designated to hear the witnesses and to make credibility findings. 37 New Jersey Practice, Administrative Law and Practice 7.20, at 390 (Steven L. Lefelt, Anthony Miragliotta & Patricia Prunty) (2d ed. 2000 and Supp. 2005).

A reviewing court need give no deference to the agency head on the credibility issue where the agency head, based upon a review of the transcript and documentary evidence, rejects the judge's recommended findings of facts, since it was the administrative law judge, and not the agency head, who heard the live testimony, and who was in a position to judge the witnesses' credibility.

[Ibid. (citing Clowes v. Terminix Int'l., Inc., 109 N.J. 575 (1988).]

Indeed, the Administrative Procedure Act now explicitly provides, in the case of a contested hearing before an administrative law judge:

The agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record.

[N.J.S.A. 52:14B-10(c) (as amended by L. 2001, c. 5, 4)].

See S.D. v. Div. of Med. Assistance and Health Servs., 349 N.J. Super. 480, 483-85 (App. Div. 2002).

The Board of Review must be held to the same standard in its administrative review of the Appeals Examiner's findings. Contrary to the mandate of the Administrative Procedure Act, the Board did not explain why it found "that the claimant did not follow procedure for requesting time off." In so doing, the Board rejected the explicit finding of the Examiner that petitioner was credible in her testimony that she "had requested off previous times on the calendar and no one in authority had told her it was incorrect," and that "[t]he claimant followed procedure for requesting the day off . . . ."

There is no dispute that on September 25, respondent told petitioner it did not approve her taking the day off (without pay) on September 27. We do not question respondent's right to terminate petitioner's employment for not appearing to work on September 27 or for other lawful reasons. Because we find no reason to defer to the agency's final decision, we address the mixed question of law and fact whether petitioner's failure to appear for work on September 27, in light of all the circumstances, constituted the level of misconduct contemplated by the statute and prior case law. The issue is fact sensitive. See Beaunit Mills, supra, 43 N.J. Super. at 175.

What does the statutory misconduct signify? Obviously it cannot mean "mere mistakes, errors in judgment or in the exercise of discretion, or minor but casual or unintentional carelessness or negligence, and similar minor peccadilloes." It cannot mean mere inefficiency, unsatisfactory conduct, failure of performance as the result of inability or incapacity, inadvertence in isolated instances, or good faith errors of judgment.

[Id. at 182 (quoting Boynton Cab Co. v. Neubeck & Indus. Comm'n, 296 N.W. 636, 640 (Wis. 1942)).]

It is useful to compare the facts in some of the cases in which misconduct has been held to justify disqualification for benefits. See, e.g., Borowinski v. Bd. of Review, 346 N.J. Super. 242 (App. Div. 2001) (lawyer who refused direct instruction of senior partner to appear to represent client in municipal court); Connell v. Bd. of Review, 216 N.J. Super. 403 (App. Div. 1987) (police officer convicted of crime of death by auto and discharged for gross misconduct connected with the work); Schock v. Bd. of Review, 89 N.J. Super. 118 (App. Div. 1965) (driver who left his employer's truck on street with motor running while drinking in a nearby tavern), aff'd, 48 N.J. 121 (1966).

We cannot find substantial credible evidence in the record to support the conclusion, contrary to that of the Appeals Examiner, that petitioner's failure to report to work on September 27 meets the standard of misconduct under Beaunit Mills, supra,, 43 N.J. Super. at 182. The Board's determination that petitioner's conduct rose to a level that justifies the denial of six weeks of benefits is thus arbitrary and unreasonable.

 
Reversed.

There is no allegation that petitioner was paid for any unauthorized day off.

(continued)

(continued)

10

A-4228-03T3

September 30, 2005