KERRYANN HOLSTER v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND McMASTER-CARR SUPPLY COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0931-04T50931-04T5

KERRYANN HOLSTER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR

AND McMASTER-CARR SUPPLY COMPANY,

Respondents.

_______________________________________________________________

 

Argued December 19, 2005 - Decided February 3, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Board of Review, Department of Labor, Docket No. 30,403.

Elizabeth Zuckerman argued the cause for appellant (Zuckerman & Fisher, attorneys; Ms. Zuckerman and Barbara J. Stoop, on the brief).

George N. Cohen, Deputy Attorney General argued the cause for respondent, Board of Review (Peter C. Harvey, Attorney General, attorney; Michael J. Has, Assistant Attorney General, of counsel; John C. Turi, on the brief).

Thomas J. Barton argued the cause for Respondent, McMaster-Carr Supply Company (Drinker, Biddle & Reath, attorneys; Mr. Barton and Kimberly M. Coffina, on the brief).

PER CURIAM

Appellant, Kerryann Holster, appeals the September 10, 2004 decision of the Board of Review affirming the May 24, 2004 decision of the Appeals Tribunal finding Holster disqualified from unemployment benefits based on gross misconduct. We affirm.

During the week of February 9, 2004, Holster was scheduled to report for jury duty in Ocean County. On Monday, February 16, 2004, when she returned to work after her week-long absence, she was terminated from her job. She applied for unemployment benefits on February 29, 2004, and was notified on March 25, 2004 by the Deputy Claims Examiner that she was held disqualified for benefits from February 15 until March 27 (six weeks), due to her act of misconduct related to her job.

On April 5, 2004 she filed her notice of appeal to the Appeals Tribunal. On May 20, 2004 an Appeals Tribunal hearing was conducted, at which she was represented by counsel via telephone, with three representatives from her employer being present. The Appeals Tribunal issued its decision on May 24, 2004, disqualifying Holster for benefits as of February 15, 2004, under N.J.S.A. 43:21-5b for gross misconduct connected with her work.

Holster then filed her notice of appeal to the Board of Review on June 2, 2004. The Board of Review held a meeting on July 21, 2004, at which her case was discussed, and the decision by the Board was issued on September 10, 2004, affirming the decision of the Appeals Tribunal. Holster then wrote a letter to the Board on September 21, 2004 requesting that her case be re-opened, but on October 14, 2004 her request was denied. This appeal followed.

Holster had been employed by McMaster-Carr Supply Company (McMaster-Carr) for twenty-one years (since February 15, 1983) at the time of her termination. She worked the "morning shift" as Tech Support, which began at 6:30 a.m. and ended at 3:00 p.m. On Friday, February 6, 2004 she met with her tech support supervisor, Shaun Sauer, for an annual review of her work performance. A few weeks prior to this meeting, Holster had provided Sauer with a copy of her court summons for jury duty that was scheduled for the week of February 9, 2004. At the Friday meeting she reminded Sauer that she would be absent on Monday, February 9 through Friday, February 13. Also during this meeting, Holster expressed concerns to Sauer that she often felt unsupported by him. Sauer responded that he promised to be more supportive in the future.

According to Holster's testimony, at the end of the day on Friday, February 6, 2004, Sauer stopped by her desk on his way to fix a printer and told her that he knew she was scheduled for jury duty the following week but he wanted her to take the week off to relax and come back refreshed. Holster stated that she took Sauer's remarks as his attempt at being supportive. On Monday morning Holster drove to the Ocean County courthouse to report for jury duty. She arrived at the courthouse at approximately 9:00 a.m. and was told a short time thereafter that she had not been required to report for jury duty that day. A court employee told her to call Tuesday morning to determine whether she had to report on that day. Rather than driving from the courthouse and reporting to work, which was over an hour and fifteen minute drive away, Holster simply went home. Holster claimed that she went home because she had been told by Sauer to take the week off to relax, and it also would have been too late to make the commute worthwhile by the time she left the courthouse. According to the testimony of Katherine East, Human Resource Manager (HR), McMaster-Carr's general policy on employee absences from work is that employees are required to call in and give notice for the reason that they are absent and "that if you are not called for jury duty, you should report to your regular duties, which would include being at work." McMaster-Carr does not, however, have a written policy regarding jury duty.

On Tuesday morning, Holster again called the courthouse and was told that she was not required to report for the morning session, but to call back after noon in case she was needed for the afternoon session. She called back at noon, when she was told that she was again excused for the remainder of the day.

Wednesday morning Holster made her final call to the courthouse, and she found out that she was again excused not only for Wednesday, but for the remainder of the week. Holster did not report to work or call on Wednesday, Thursday (which was a court holiday), or Friday.

Sauer, after a conversation with his wife about jury duty, made a telephone call to the Ocean County courthouse on Tuesday, February 10, inquiring about the status of Holster's required jury service. Patty Schilling, Jury Manager at the Ocean County courthouse, responded to Sauer's request with a letter to Sauer dated February 13, 2004 that was read into the record at the Appeals Tribunal hearing, which stated:

Ocean County Superior Court called Jurors for Service on February 9th and 10th.

All services of the jurors were concluded as of Tuesday evening, February 10th at 6 p.m. No jurors were called in for Wednesday, February 11th and the Ocean County Superior Court was closed on Thursday, February 12th, 2004 in observance of Lincoln's birthday. Since juror services were concluded as of Tuesday, no jurors reported on Friday, February 13th, 2004.

When Holster returned to her shift Monday morning, February 16, Sauer asked Holster how her jury duty had been and she replied that "it was a pain." She then asked Sauer to put her down for a vacation day for the prior Thursday, since it had been a court holiday and the courts had been closed. She testified that she did not want any attendance discrepancy blemishing her attendance record at work.

Later on Monday, she was called into a meeting with Sauer and his boss, Steve Finn. At this meeting she learned that Sauer had actually called the Ocean County courthouse and he learned that she did not have to actually report for jury duty on Monday or Tuesday. Testifying that she did not want to get Sauer in trouble, and that she was not fearing for her job at the time, she claims she told Finn that she simply did not feel she had the time to drive into work after learning from the courthouse that she was not needed on Monday or Tuesday. Thursday's attendance was not at issue because she had been forthcoming with Sauer that it had been a court holiday, and she was never specifically asked about Wednesday and Friday. At the end of the meeting with Sauer and Finn, Holster was terminated. At the hearing, East testified that "[Holster] was being [dis]- charged for being absent without word and misrepresenting herself as being [on] jury duty."

While Holster stated that Sauer had told her to take the week of February 9, 2004 off, Sauer testified to a different version of events. When asked by the hearing examiner whether he at any time told Holster that she could take the week off, he replied that he did not. When asked whether he had the authority to give time off like that, he again stated that he did not and that he would be reprimanded for such an action. The Appeals Tribunal, relying upon N.J.S.A. 43:21-5, decided:

A disqualification for benefits is imposed as of 2-15-04, under N.J.S.A. 43:21-5(b), until the claimant becomes reemployed and works four (4) weeks in employment and earns six (6) times the weekly benefit rate, with no benefit rights accruing to the claimant based upon wages from this employer for services rendered prior to the day upon which the claimant was discharged, as the discharge was for gross misconduct connected with the work.

(emphasis added).

The Board of Review affirmed the decision of the Appeals Tribunal:

Since the appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing. On the basis of the record below, we agree with the decision reached [by the Appeals Tribunal] except the employer considered the claimant's actions to be theft by deception.

The Appeals Tribunal found that Holster's actions amounted to "theft of time." The Board of Review revised that decision, finding that "the employer considered claimant's actions to be theft by deception."

I

The judicial role in reviewing decisions of administrative agencies is "to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole with due regard for the agency's expertise. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dept. of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Holster argues that the rejection of her credibility by both the Appeals Tribunal and the Board of Review was erroneous because she testified by telephone at the Appeals Tribunal hearing and her demeanor could not be properly assessed. We disagree. Telephone hearings are accepted practice in unemployment compensation cases and Holster had the right to both tell her side of the story and confront the witnesses present. See Tricarico v. Board of Review, 147 N.J. 581, 584 (1997). Holster was also afforded a full opportunity to rebut the testimony of the other witnesses. Additionally, credibility determinations are not based solely on a witness's demeanor but also on the reasonableness of the testimony and the inherent believability of the testimony. Model Jury Charge (Civil), 1.12K (2003).

We are satisfied that there was sufficient evidence in the record, considering the proofs as a whole, for the hearing examiner's finding based on his credibility determinations. The appeals examiner concluded:

In this matter, the supervisor's testimony that he did not give the claimant the week off is considered credible, as he did not have the authority to do so. The claimant did not try to explain this to the manager upon her discharge because she did not want to get the supervisor in trouble. This suggests that she believed the supervisor did not have the authority to give an employee a week off as a gift. Also, the claimant asked to have only one day off as vacation. 5-12-04. This suggests that she did not believe that the supervisor gave her the week off as a gift from the company.

The claimant's actions of theft of time over $200.00, which was the cause of discharge, is punishable as a crime of the first through fourth degree under the New Jersey Code of Criminal Justice N.J.A.C. 2C:1-1, et seq. Therefore, this discharge is a discharge for gross misconduct connected with work.

II

The Board of Review affirmed the Appeals Tribunal's finding of gross misconduct and determined that Holster's actions amounted to "theft by deception," contrary to N.J.S.A. 2C:20-4. According to N.J.S.A. 43:21-5b, an employee is disqualified for benefits due to gross misconduct if the employee is terminated for an act that is punishable as a crime of the fourth degree. Holster argues that there can be no "theft by deception" without reliance (by the victim McMaster-Carr) on the misrepresentation. Holster contends that even if she did attempt to deceive her employer, McMaster-Carr was not deceived. Specifically she claims that there was no deception because, during her absence, her supervisor contacted the court and learned that she did not have to appear as a juror, and McMaster-Carr nonetheless paid her for jury duty time, even though it was known that she was not serving jury duty.

In this appeal the critical question is whether the actions of Holster amounted to "gross misconduct." The sole reason the Board of Review found she had committed an act of gross misconduct was that she was found to have committed the crime of theft by deception, contrary to N.J.S.A. 2C:20-4.

N.J.A.C. 12:17-10.1(c) provides for the disqualification of unemployment benefits for gross misconduct connected with work:

(c) If the individual's discharge was for gross misconduct connected with the work because he or she committed an act punishable as a crime of the first, second, third, or fourth degree under the "New Jersey Code of Criminal Justice," N.J.S.A. 2C:1-1 et seq., the individual shall be disqualified for benefits for the week in which he or she was discharged and for each week thereafter until the individual becomes reemployed and works four weeks in employment and has earned at least six times the individual's weekly benefit rate. The individual will have no benefit rights based upon wages from that employer for services rendered prior to the day upon which he or she was discharged.

[N.J.A.C. 12:17-10.1(c).]

"Misconduct" is defined in the N.J.A.C. in pertinent part:

(a) For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.

(b) To sustain disqualification under this section, the burden of proof is on the employer to show that the employee's actions constitute misconduct. However, in the case of gross misconduct, the following apply:

1. Where an employer provides sufficient evidence to establish that a claimant was discharged for gross misconduct connected with the work, prosecution or conviction shall not be required to sustain that the claimant has engaged in gross misconduct.

. . . .

[N.J.A.C. 12:17-10.2 (emphasis added).]

The crime of theft by deception, as defined by N.J.S.A. 2C:20-4, reads in pertinent part:

A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:

. . . .

c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

. . . .

[N.J.S.A. 2C:20-4c (emphasis added).]

"Generally, the Code does not require affirmative disclosure. Taking advantage of a known mistake, which is influencing the opposite party to a bargain, is not criminal under existing law in the absence of special circumstances imposing a duty to correct the mistake." Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:20-4 (2005) (quoting from 1971 Commentary). In two situations, set forth as N.J.S.A. 2C:20-4, subsections (b) and (c), however, non-disclosure suffices.

In this case, Holster's non-disclosure falls under subsection (c), and thus qualifies as a criminal act that could reasonably lead to a finding of gross misconduct. Based on the Appeals Tribunal's findings of fact, Holster properly submitted a copy of her jury summons to Sauer weeks before the date scheduled. Even though she should have read the instructions on her summons and called the court the Friday night of February 6, 2004, to check whether she would be required to report on Monday, she did not commit an offense punishable under N.J.S.A. 2C:20-4 at that time. It was her actions (or lack of action) that took place on Monday, February 16, 2004 that constituted an offense under subsection (c) of N.J.S.A. 2C:20-4.

It was on that morning that Holster returned to work and spoke with Sauer about the week before. He asked her how jury duty had been, and she replied that it was "a real pain." She then asked him to mark her down for a vacation day on Thursday rather than for a jury duty day because the court was closed for a holiday. We can determine, using our deferential standard of review, that the Board of Review could have found that Holster failed to correct Sauer's false impression that she had been at jury duty the week before. As she was making these comments to Sauer on Monday morning, she did not know that he had called the courthouse during the previous week and determined that she had, in fact, not been required to perform jury duty.

In Holster's reply brief, she contends that since McMaster-Carr paid her for jury time, even though it already knew she was not serving jury duty, the employer "did not turn over property in reliance on any deception, [and Holster] cannot be said to have obtained property 'by deception.'" (emphasis added). Holster relies on our decision in State v. Mann, 244 N.J. Super. 622 (App. Div. 1990). In Mann, the defendant was convicted of theft by deception after purchasing items with a stolen credit card. On appeal, we held: "Defendant unquestionably attempted to deceive the sales clerk, but the clerk learned of the deception before making the 'sale.' Defendant thus did not obtain the VCR 'by deception,' for the sales clerk was not deceived[.]" Id. at 626.

In Mann, however, we also observed that "the record justifies a finding of attempted theft by deception of the VCR[,]" as proscribed by N.J.S.A. 2C:5-1. Id. at 627-28. We further were persuaded that attempted theft by deception was a lesser-included offense which need not be separately charged in the indictment. Id. at 628 (citing State v. LeFurge, 101 N.J. 404, 414 (1986)). An attempted theft is graded as an offense of the same degree as the completed theft and punished as severely as the thefts attempted. Ibid. We reversed the conviction in Mann, however, because we determined that "a jury in a criminal case must be appropriately instructed on the theory of liability that is advanced in support of a criminal conviction; absent such instruction, a conviction cannot stand." Id. at 628-29 (quoting State v. Schmidt, 110 N.J. 258, 261 (1988)).

Although the record established that McMaster-Carr never actually relied on Holster's misrepresentations when it paid her for her week off, McMaster-Carr would have relied on her misrepresentations and paid her for jury duty time, had Sauer not called the court and discovered that she, in fact, did not serve. Our decision in State v. Greenberg, 154 N.J. Super. 564 (App. Div. 1977), certif. denied, 75 N.J. 612 (1978) is instructive on this issue.

In Greenberg, the defendant was convicted of obtaining money by false pretense. Id. at 565. The defendant was an attorney, and "[t]he evidence showed that he obtained the sum of $200 from Lawrence O'Toole, a client, on the pretext that it was for the purpose of corruptly influencing an unidentified public official to vacate a term of imprisonment which O'Toole had been sentenced to serve." Ibid. The money O'Toole handed over, however, had been furnished by police as part of a setup. Ibid. The transaction was recorded by police and the falsity of the representation was admitted.

This court agreed with:

the trial judge's conclusion that the State's evidence failed to prove reliance, and was therefore lacking in an essential element of the offense. The fact that O'Toole was acting in collaboration with police authorities compels the conclusion that he could not have believed that the money would be used for the pretended purpose. . . . He therefore correctly concluded that the defendant's conviction was unwarranted in the form in which it had been entered.

Although the judgment of conviction was properly vacated, we find that there was error in denying the State's application to mold the verdict and enter a judgment of conviction for the crime of attempting to obtain money by false pretense. "An attempt to commit a crime is an act done with intent to commit it beyond mere preparation but falling short of its actual commission."

In State v. Thyfault, [ 121 N.J. Super. 487 (Law Div. 1972), aff'd o.b., 126 N.J. Super. 459 (App. Div. 1974)] Judge (now Justice) Handler held that a defendant who abandoned her plan to obtain money by false pretense because of the victim's protests was nevertheless guilty of an attempt to commit the crime where she had made knowingly false representations to induce payment. And it is said that the overwhelming weight of authority in this country and in England is to the effect that in a prosecution for attempted false pretense it is not necessary that the defendant's intended victim be deceived by the falsity of the representation made.

[Id. at 566-67 (quoting State v. O'Leary, 31 N.J. Super. 411, 417 (App. Div. 1954) (citations omitted)).]

We went on to conclude:

The fact that defendant could not have completed the crime because, unknown to him, O'Toole was not relying upon his false representation, is no defense to a charge of attempting to obtain money by false pretense. This is the principle applied in State v. Moretti, 52 N.J. 182, 190 (1968) [cert. denied, 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968)], where a conviction for conspiracy to commit an abortion was affirmed even though, unknown to defendants, the woman was not pregnant and was in fact a law enforcement agent.

[Id. at 568.]

The following factual determinations were made by both the Appeals Tribunal and the Board of Review: (1) Sauer never told Holster that notwithstanding her jury duty obligations, she could take the week off to "relax;" (2) while Holster remained absent from work the week of February 9, she assumed that McMaster-Carr thought she was performing jury duty; and (3) when Holster returned to work the following Monday and was asked by Sauer how her jury duty had been, she replied that it had been "a pain." These acts constituted an attempt by Holster to mislead McMaster-Carr into believing that she had in fact performed jury duty the week before, with the exception of Thursday. N.J.S.A. 2C:5-1a defines attempt in applicable part:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

. . . .

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

The decision of the Appeals Tribunal as affirmed and modified by the Board of Review, stating that Holster's actions constituted "gross misconduct" was, giving due deference to the credibility findings of the administrative agency in favor of Sauer, supported by sufficient credible evidence in the record, considering the proofs as a whole. Therefore, the administrative action was not arbitrary, capricious or unreasonable. The evidence supports the finding that when Holster returned to work on February 16, she assumed that her superiors believed that she had been serving jury duty the week before, not being aware, at that point, that Sauer had called the court to check on her service. On February 16, she represented to Sauer that she had in fact served jury duty the week before, with the exception of Thursday. Despite the fact that McMaster-Carr did not rely on her misrepresentations when paying her, Holster intended that McMaster-Carr rely on her misrepresentation.

 
We are satisfied, therefore, that the evidence supports a finding of gross misconduct because Holster's conduct constituted the required elements for the offense of attempted theft by deception pursuant to N.J.S.A. 2C:5-1a and N.J.S.A. 2C:20-4.

Affirmed.

Had Holster properly read her jury duty summons, she would have simply called an automated number at the courthouse the preceding Friday night in order to learn whether she would be required to actually report to the courthouse on Monday morning.

At the hearing it was determined that Holster made approximately $68,000 per year, which amounts to about $261 per day. N.J.S.A. 2C:20-2b(3) provides in pertinent part: "Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00."

(continued)

(continued)

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A-0931-04T5

February 3, 2006