LUIS F. MATEO v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LUIS F. MATEO,

Appellant,

v.

BOARD OF REVIEW and

HUDSON HEALTHCARE INC.,

Respondents.

_________________________

December 20, 2013

Argued October 8, 2013 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Board of Review, Department of Labor, Docket No. 384,112.

Luretha M. Stribling argued the cause for appellant.

Robert M. Strang, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Strang, on the brief).

Respondent Hudson Healthcare Inc. has not filed a brief.

PER CURIAM

Claimant Luis F. Mateo appeals from the Board of Review's decision that he was ineligible for unemployment benefits because he voluntarily left his job without good cause attributable to his work. We affirm.

I.

The principal factual dispute in the case involves whether defendant, a "facilities specialist" at a community mental health center, had permission to be absent from work, in order to take a vacation in Puerto Rico between March 10 and 24, 2012. Mateo asserts his supervisor approved his vacation-based absence. His employer, Hudson Healthcare Inc. (Hudson) asserts that Mateo's supervisor denied approval. Consequently, Mateo left his job without good cause attributable to his work, and was terminated upon his return from Puerto Rico.

In a notice of determination dated April 17, 2012, the Division of Unemployment Insurance found that Mateo was disqualified for benefits because he left work voluntarily by taking an unapproved vacation. Mateo appealed the denial.

After conducting a testimonial hearing by telephone on October 10 and 11, 2012, the Appeal Tribunal found the testimony of Mateo's supervisors more credible than Mateo's.

Mateo booked the March 10 to 24, 2012, vacation in September 2011. In November, the clinic was purchased and placed under new senior management. Mateo did not request permission for the vacation until January 19, 2012, when he submitted a standard vacation request form. Mateo did not obtain his supervisor's signature on the form to indicate his request was approved. Mateo's supervisor was Janet Meissner, the office manager who had also worked under the prior management.

Mateo testified that the lack of a signature reflected indecision. He asserted that he asked Meissner to rule on his request in the middle of February and she responded that she could not decide, but refused to explain why. On March 1, Mateo renewed his request to Meissner, and to Dr. Vicki Barnett, who was Meissner's supervisor and the director of psychology and outpatient services. Mateo claimed they still did not have an answer for him. He testified he asked for forty-eight hours' notice of the decision, so he could cancel his reservations without penalty, and Dr. Barnett agreed.

Mateo testified that he spoke to Meissner again on March 7 and Dr. Barnett on March 9.

She [Meissner] said that she didn't see a problem with me going, but that she couldn't still sign off on the form. So, I said, "Okay, I'll wait a little bit more," and then on March the 9th, that's when Vicki Barnett approached about 10 to 5 and . . . she gave me the final answer that I was denied.

Mateo complained to Dr. Barnett that he would forfeit his payments if he cancelled at that point. He said that Dr. Barnett told him that he was expected at work on Monday. He said she warned that "there are consequences if you don't return on Monday," although she did not elaborate.

Mateo told Dr. Barnett he intended to take his vacation. "I just . . . told her . . . I'm not going to lose my money. I'm going to move forward because she failed in the agreement that she made with me on March the 1st, that she was going to . . . get back to me." When Mateo returned to work on March 26, he was terminated. The reason stated was "Excessive absenteeism, taking unauthorized time off." Hudson had presented Mateo with a written warning on January 13, 2012, that he was excessively absent and tardy to work; and a second warning on March 1, 2012, for continued lateness, accompanied by a one-day suspension from work.

Mateo also testified that Hudson had advertised for another facilities specialist in February 2012. However, he admitted he was told that the new hire was intended to assist and not to replace him.

Hudson's human resources director testified that Mateo had no accrued vacation time when he submitted his request a fact that would have been apparent to Mateo by reading his paystub. He said it was not company policy to grant time off without pay, but he would leave it to a department head's discretion "if they're going to do [so] in order to accommodate employees and still maintain the department's operations."

Meissner testified that when Mateo first asked her for permission in January 2012, she told him she would need to speak to her supervisor, who at the time was Mike Swerdlow. Meissner stated that when the new owners hired prior staff, they were informed that no one could take vacation for the first six months. She asserted Mateo was aware of that fact.

Meissner testified that within several weeks of Mateo's request, she told him that his request was denied. She stated that she had discussed the matter with Swerdlow. She said Mateo responded that he was going to take the vacation anyway, because he did not want to lose money on the tickets. She testified:

[O]n a couple of occasions I told . . . him that . . . he was going to lose two weeks' pay. I told him he could possibly even lose his job, and I did this up until . . . the end. Every time he came to my office asking me to . . . sign off on his vacation request, which I never did[.]

Meissner explained that after Dr. Barnett replaced Swerdlow as her supervisor in the middle of February 2012, and Mateo continued to revisit the issue, Meissner spoke to Dr. Barnett. Meissner stated she met with Mateo on March 1, but it was for the purpose of discussing the corrective action for his tardiness, and she did not recall any discussion of his vacation request that day. She denied telling Mateo on March 7 that she did not see any problem with him going on vacation. Meissner insisted the decision to deny permission had already been made.

Meissner admitted that on March 9, she prepared a work schedule for the next two weeks that reflected Mateo's absence. She explained that since Mateo insisted he was taking the time off, "I had no choice but to work around that." She also admitted telling Mateo when she left work on March 9 to have "a safe vacation."

Dr. Barnett testified that Meissner had consulted with her about Mateo's request and she recommended that Meissner deny it. She did not recall discussing the vacation request at the March 1 meeting, which was focused on his "write-up." She denied that Mateo asked for forty-eight hours' notice of a denial on March 1. She testified that on March 9, she met with Mateo, in the presence of another manager, to confirm with him that his vacation was not approved and he was expected to be at work the following Monday.

The Appeals Examiner found credible Meissner's testimony that she denied Mateo's vacation request well before March 2012. He noted that the request form was never approved. The work schedule reflected his absence only because he had insisted he was leaving, and not because he had permission. "The claimant decided to book a vacation before getting permission to take the time off from work, and he knew that there would be consequences if he decided to take the vacation after being told that his request was denied." Mateo failed to report to work for five consecutive work days without notifying his employer of the reason for his absences. The Appeal Tribunal concluded that Mateo's unauthorized two-week vacation reflected an "intention to voluntarily end the employer-employee relationship" and Mateo was deemed to have "left work voluntarily without good cause attributable to the work." He was therefore disqualified for benefits pursuant to N.J.S.A. 43:21-5(a). The Board of Review affirmed the Appeal Tribunal's decision based on the record.

This appeal followed. Mateo presents the following points for our consideration:

POINT I

THE BOARD OF REVIEW AFFIRMANCE OF THE DETERMINATION MADE WHICH DENIED LUIS F. MATEO UNEMPLOYMENT BENEFITS BECAUSE OF ALLEGED JOB ABANDONMENT WAS ARBITRARY CAPRICIOUS AND FAILED TO COMPORT WITH THE EVIDENCE PRESENTED, THEREFORE, THE DECISION REACHED MUST BE VACATED.

POINT II

THE TERMINATION OF LUIS F. MATEO FROM EMPLOYMENT FOR ALLEGED ABSENTEEISM WAS ERRONEOUS AS MR. MATEO FOLLOWED THE POLICY DELINEATED FOR THE USE OF SICK TIME AND SUCCESSFULLY COMPLETED THE PROBATION PERIOD.

POINT III

THE TERMINATION OF LUIS F. MATEO FROM EMPLOYMENT FOR ALLEGED TARDINESS WAS ERRONEOUS AS MR. MATEO FOLLOWED THE SCHEDULE THAT HAD BEEN GIVEN TO HIM BY MANAGEMENT AND AT NO TIME DID HUMC HOLDCO, LLC ALERT MR. MATEO THAT HE WAS TO WORK A DIFFERENT SCHEDULE.

POINT IV

THE TERMINATION OF LUIS F. MATEO FROM EMPLOYMENT AT HOBOKEN UNIVERSITY MEDICAL CENTER WAS PRE-TEXTUAL BECAUSE MANAGEMENT ADVERTISED HIS POSITION IN FEBRUARY 2012 AND SHORTLY AFTER HIS TERMINATION HIRED A YOUNGER EMPLOYEE FOR THIS VERY POSITION.

II.

Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Thus, the issue is whether the factual findings are supported by sufficient credible evidence. Ibid. In making that determination, we also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).

Nonetheless, a court can intervene if the agency's action was arbitrary, capricious or unreasonable, or was "'clearly inconsistent with its statutory mission or with other State policy.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Thus, judicial review is confined to determining, first, whether the agency decision offends the State or Federal Constitution; second, whether it violates legislative policies; third, whether the record contains substantial evidence to support the agency decision; and, fourth, whether the agency, in applying legislative policies to the facts, clearly erred in reaching a conclusion that could not reasonably have been made. Id. at 211.

Our decision is also guided by fundamental principles of law governing unemployment compensation. Our State's unemployment compensation law, N.J.S.A. 43:21-1 to 24.30 (Act), is primarily designed to lessen the impact of unemployment that befalls workers without their fault. Brady, supra, 152 N.J. at 212. "The public policy behind the Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989); see also N.J.S.A. 43:21-2 (declaring public interest in addressing the burden of "[i]nvoluntary unemployment").

Therefore, a person who voluntarily quits or abandons work for personal reasons, rather than for causes attributable to work, is ineligible for benefits. The Act provides, "An individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." N.J.S.A. 43:21-5(a). Implementing regulations provide for discharge or suspension for unauthorized absences, stating:

(a) An individual shall be disqualified for benefits for misconduct connected with the work, if he or she did not have good cause for being absent from work, or failed without justification to take steps necessary to notify the employer of the absence and the reason therefor.

 
(b) For the purpose of this section, "good cause" means any compelling personal circumstance, including illness, which would normally prevent a reasonable person under the same conditions from reporting to work.

 
(c) An unauthorized absence for five or more consecutive work days may constitute job abandonment and subject an individual to disqualification for benefits for voluntarily leaving work without good cause under N.J.A.C. 12:17-9.11.1

[N.J.A.C. 12:17-10.3.]

Application of the "good cause" standard requires a fact-sensitive analysis. Utley v. Bd. of Review, 194 N.J.534, 550 (2008). "New Jersey courts have construed the phrase to mean cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed." Brady, supra, 152 N.J.at 214 (internal quotation marks and citations omitted). A court must consider what a person with "ordinary common sense and prudence" would do. Ibid.(internal quotation marks and citation omitted). The reasons for leaving must be real and substantial. Ibid. Employees are required to act reasonably to protect their own employment. "A claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed." Brady, supra, 152 N.J. at 214 (internal quotation marks and citations omitted).

We must be mindful of the tension created by two sometimes conflicting tasks: to construe the Act liberally to serve the needs of the involuntarily unemployed, and to avoid the award of undeserved benefits that would deplete resources reserved for the Act's intended beneficiaries. The Supreme Court has stated:

In order to further its remedial and beneficial purposes, the law is to be construed liberally in favor of allowance of benefits. Nonetheless, it is also important to preserve the fund against claims by those not intended to share in its benefits. The basic policy of the law is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases.

[Yardville Supply Co., supra, 114 N.J. at 374.]

Consistent with that policy, an employee bears the burden of showing that he or she is entitled to unemployment benefits. Brady, supra, 152 N.J. at 218. Also, if an employee has voluntarily left work, he or she also has the burden of showing that he or she left not for personal reasons, but for "good cause attributable to work." Ibid.

Applying these principles, we discern no basis to upset the Board's decision, which was based on the Appeal Tribunal's findings. Mateo argues that the Appeal Tribunal's findings were unsupported by the evidence, and that Mateo reasonably believed his vacation was approved. We disagree. First, contrary to his argument on appeal that he believed his vacation was approved, Mateo essentially admitted that at no point was he given a definitive, affirmative response to his request. He asserted instead that he was continually denied a firm decision. He claimed that on March 1, he was promised forty-eight hours' notice of a denial. Meissner told him on March 7 that she did not see a problem with his request, but still did not sign off on it. Mateo obviously did not take Meissner's alleged statement to be a firm approval, as Mateo responded that he would "wait a little bit more." When Dr. Barnett told him on March 9 that his vacation was unapproved, he concluded he was entitled to go anyway, not because he had been approved, but because of the alleged breach of the promise to give forty-eight hours' notice.

Second, without reweighing the evidence ourselves, we discern sufficient credible evidence in the record to support the Appeal Tribunal's findings, which the Board adopted, rejecting Mateo's version of events, crediting Meissner's version, and concluding that Mateo was denied permission long before March 2012. We defer to the Appeal Tribunal's explicit credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999). Mateo did not establish that the denial was wrongful, or in violation of any contractual right. Consequently, Mateo "did not have good cause for being absent from work." N.J.A.C. 12:17-10.3. The Board therefore appropriately disqualified Mateo for benefits pursuant to N.J.S.A. 43:21-5(a).

The remainder of Mateo's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 N.J.A.C. 12:17-9.11(a) states:

An employee who is absent from work for five or more consecutive work days and who without good cause fails to notify the employer of the reasons for his or her absence shall be considered to have abandoned his or her employment. Such job abandonment shall subject the employee to disqualification for benefits for voluntarily leaving work without good cause attributable to such work.