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DOCKET NO. A-2762-10T3








August 16, 2012


Submitted April 24, 2012 - Decided


Before Judges Nugent and Carchman.


On appeal from the Board of Review, Department of Labor, Docket No. 284,329.


John M. Custin, appellant pro se.


Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).


Respondent Walmart Associates, Inc. has not filed a brief.


John M. Custin appeals from the January 24, 2011 final agency decision of the Board of Review, Department of Labor (the Board), which affirmed the determination of an Appeal Tribunal that disqualified him from receiving unemployment benefits under N.J.S.A. 43:21-5(b), based on misconduct connected with his work. We affirm.

Custin worked for Walmart Stores, Inc. (Walmart), from April 11, 2008 through April 26, 2010. After he was discharged, he filed a claim for unemployment benefits. On April 28, 2010, the Workforce Development Unemployment Insurance Office mailed him a notice of "Appointment for Claims Examiner Interview," which explained that the reason for the appointment was "You may have been separated for misconduct in connection with your work." On May 13, 2010, a deputy director of the Division of Unemployment and Disability Insurance determined that he was eligible for benefits. Walmart appealed, and a telephonic Appeal Tribunal hearing was conducted on June 28, 2010.

Walmart personnel manager Beverly Shuck1 and Custin testified at the hearing. At the outset, Appeals Examiner Danielle Dibella declined to hear Custin's motion to dismiss the appeal, then explained that "[t]he issues to be resolved . . . are the issues of [Custin] voluntarily leaving and [his] discharge for misconduct." Dibella further explained that Walmart claimed Custin voluntarily left the job "without good cause attributable to the work."

According to Shuck, Custin was employed by Walmart as a sales associate from April 11, 2008, through April 26, 2010. He was terminated because he was a "no call[,] no show," having failed to appear for work on April 17, 19, 21, 22, and 23. Shuck explained the procedure to be utilized by an employee who intends to "call out." She testified, "[t]here is a 1-800 number [(hotline)] that Walmart has w[h]ere you get a . . . [verification] number and then they transfer you to the store where [you] would speak to an assistant manager or manager." When employees call, they receive the verification number "so that you have proof that you called." Shuck knew that Custin did not call out because she had the computer records and "it [was] reported to [her] every morning and . . . afternoon. And [she] check[ed] . . . the call out list."

After Custin failed to call out, Shuck spoke to him on April 23, 2010. When she telephoned him, his mother answered and "called him to the telephone." Shuck described the conversation:

I asked him what was the matter[,] why he has been out of work and not calling in. And he was very upset[,] . . . he told me that his legs hurt and he figured if he can't walk he can't work. And I said[,] well[,] John you have to call in. He's been here long enough to know that. That you have to call out. It's no call[,] no show.


Shuck reported the situation to the manager and Custin was subsequently terminated.

Shuck explained that employees were advised of the "call out" policy at orientation. Additionally, in the lunch room, signs were posted and business cards were available with the hotline number. Shuck testified that Custin had been absent on occasions other than the five days leading up to his termination, and that he normally called out. Shuck repeated that when she spoke to Custin on April 23 and asked him why he did not call out, he replied "that his legs hurt and he figured if he couldn't walk[,] he couldn't work." Shuck said they were "his exact words."

In response to Dibella's questions, Shuck also testified that Custin's "exit interview" and an attendance report had been sent to the Tribunal. The exit interview indicated that Custin was "re-hirable" and that Walmart would hire him if a position became open and he "fit into [it]." Custin did not request copies of those documents either when Shuck referred to them or at any other time during the hearing.

After verifying the accuracy of his dates of employment, position, and wage, Custin testified that he called out on April 17 because his legs were hurting so badly that he could not get out of bed. He was unable to get confirmation when he telephoned the hotline because "something was wrong with it." According to Custin, he "never got the confirmation number. It disconnected [him]. There was a problem with their phone that whole time." Custin also called the store at 6:30 or 7:00 a.m., when people were supposed to be in the store, but the phone just rang without answer. Custin had no records to verify that he called on April 17.

Custin also attempted to call out on April 19, but once again no one picked up the telephone at the store and he was disconnected when he called the hotline, that is, "it just hung up on [him]." The same thing happened on April 21, 22, and 23. Custin had no telephone records to verify that he called on those dates. He had placed the calls from the home of a friend with whom he was staying.

Custin denied speaking to Shuck on April 23. When asked if he knew why she would say that she spoke with him, he replied, "You'd have to ask her that question." Custin testified that he was aware of the call out policy and never had problems with the phone system previously.

Shuck disputed Custin's testimony. She said that Walmart "had no other problems" with its 800 number and "we had other absences that day." She also testified that Custin knew that after three days of absences he was required to request a leave of absence supported by a doctor's note. Custin denied knowing of such a policy, and claimed that other employees had been absent for more than three days and were not required to provide Walmart with a doctor's note.

Prior to the hearing, Custin had faxed to the examiner, Dibella, documents concerning his COBRA benefits. According to the documents, when Custin was terminated by Walmart he applied to the United States Department of Labor, Employee Benefits Security Administration, for a COBRA premium reduction under the American Recovery and Reinvestment Act of 2009. His application was initially denied because Walmart had determined that he was not an "Assistance Eligible Individual." He was not assistance eligible because he had purportedly not been involuntarily terminated.

Custin appealed the initial COBRA determination, and the determination was subsequently reversed. In a June 8, 2010 letter to the United States Department of Labor, Employee Benefits Security Administration, Walmart's COBRA manager explained that "an additional investigation of the termination reason resulted in our discovery that Mr. Custin is eligible for the COBRA Subsidy. Mr. Custin's premium rates will be adjusted." Custin argued to Dibella that the COBRA determination was inconsistent with Walmart's position at the hearing that he had voluntarily abandoned his job. Based on that conflict, he insisted that Walmart's statement that he voluntarily abandoned his job be stricken. Dibella denied that request.

The hearing concluded after Dibella asked Custin why he made no attempt to actually speak with someone when he was absent from work. He replied, "I just didn't[.] I thought I did as much as I had to do." Custin also stated that he did not see a doctor on any of the five days because "I was hoping I would get better. I did start feeling a little bit better which is why I wanted to go back to work on the 26th." Custin had no medical documentation for the five days that he was out.

Dibella issued her decision on July 6, 2010. She first determined that Custin was not disqualified from receiving benefits for voluntarily leaving his job, because he did not voluntarily leave his job. Next, she determined that Custin did not properly notify Walmart of his absences and, consequently, was discharged for misconduct connected with his work. Based on that finding, Dibella determined that Custin was disqualified for benefits as of April 18, 2010, through May 29, 2010.

Custin appealed to the Board, which upheld the Appeal Tribunal's decision. This appeal followed.

Our review of agency determinations is limited. In re Stallworth, 208 N.J.182, 194 (2011). We will not disturb an agency's decision unless we "find [it] to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid.(quoting Henry v. Rahway State Prison, 81 N.J.571, 579-80 (1980)). Additionally, we give "due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility[,]" In re Taylor, 158 N.J.644, 656 (1999), and therefore accept their findings of fact "when supported by adequate, substantial and credible evidence." 656-57 (internal quotation marks and citations omitted). "Furthermore, it is not our function to substitute our independent judgment for that of an administrative body [,] . . . [and] we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." De Vitis v. N.J. Racing Comm'n, 202 N.J. Super.484, 489-90 (App. Div.), certif. denied, 102 N.J.337 (1985).

Custin's arguments on appeal concern both the determination that was favorable to him, namely, that he was not disqualified from receiving benefits because he voluntarily stopped working; and the determination that was unfavorable to him, namely, that he was disqualified from benefits because he was terminated for misconduct. We first address the determination that resulted in his disqualification from benefits.

Custin argues that Walmart failed to prove that his misconduct constituted a wanton or willful disregard of the employer's interests, a deliberate violation of the employer's rules, or an intentional and substantial disregard of his duties and obligations. He also argues that the Appeal Tribunal's stated reason for its decision does not constitute a sufficient statutory ground for disqualification from benefits. We disagree.

An employee may be disqualified from benefits if the employee is discharged by his employer for "misconduct connected with the work." N.J.S.A. 43:21-5(b). Misconduct includes "'a disregard of standards of behavior which the employer has the right to expect of his employee.'" Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956) (quoting 48 Am. Jur., Social Security, Unemployment Compensation, etc. 38 at 541) (1943), certif. denied, 23 N.J. 579 (1957). "Judicial attempts to imbue the term with substantive meaning have, however, insisted upon the ingredients of wilfulness, deliberateness and intention if an employee's act is to qualify as misconduct." Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979). Acts of willful, deliberate, or intentional misconduct must be distinguished from "[i]nadvertent or unintentional acts, or simple neglectful conduct not amounting to a wanton disregard of consequences . . . ." Id. at 38-39. An employee "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." N.J.A.C. 12:17-10.3.

Custin does not dispute that he was absent from work for five days. The Appeal Tribunal determined that Custin did not properly notify Walmart that he would be absent from work on each of those occasions. That determination is based upon the Appeals Examiner's credibility determinations and is supported by sufficient credible evidence in the record. Custin was admittedly aware of Walmart's policy requiring absent employees to call the hotline, to obtain a verification number, and to notify store personnel. Although Custin testified that the telephone system somehow malfunctioned, and that no one in the store answered his early morning calls, his testimony was refuted by Shuck. Shuck testified that other employees had used the call-out number on one of the days Custin claimed that it was not working. Those events and circumstances also supported the conclusion that Custin's failure to call out was not inadvertent or unintentional. In short, the decisions of both the Appeal Tribunal and the Board were supported by sufficient credible evidence in the record.

Custin argues that he was denied due process of law because Walmart did not provide him with copies of his exit interview and attendance record, both referenced by Shuck during her testimony. Custin contends that the documents are critical to his case because the exit interview stated "that Mr. Custin was considered to be 'rehirable' by Walmart despite the fact that in the same breath the store was alleging Mr. Custin was a bad employee someone who demonstrated 'an act of wanton or deliberate disregard of the employer's interest' and who 'basically abandoned his job[.]'" We reject Custin's argument. Custin should have raised the issue before the Appeal Tribunal when Shuck testified about the documents. "[A]ppellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . ." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We note, however, that the evidence Custin characterizes as "extremely relevant" that he was "rehirable" was established through Shuck's testimony and was not disputed. Custin had the opportunity to advance any argument he desired to make about the importance of that evidence.

Custin makes many arguments concerning Walmart's claim that he voluntarily left his employment. The arguments are intertwined with Custin's claims about his COBRA application. For example, he argues that the Appeal Tribunal improperly declined to hear his motion to dismiss the appeal based on misrepresentations Walmart had made concerning his COBRA application; should have precluded Walmart from raising that issue based on the doctrine of res judicata; admitted irrelevant testimony on that issue; and, given the contradictory statements by Walmart in connection with his COBRA application, permitted Shuck to provide perjured testimony on the issue of whether he voluntarily left work. We need not consider any of those arguments, however, because the Appeal Tribunal and the Board determined that Custin had not voluntarily left his job. Accordingly, the arguments as to that issue are moot.

Custin also argues that the evidence as to the "voluntary leaving" charge tainted the entire Appeal Tribunal hearing. We disagree. The evidence concerning Custin's misconduct, namely, his failure to call out during the five days he was absent, was mostly undisputed. Custin admitted that he was absent from work. Custin also admitted that he did not notify anyone at Walmart that he would be absent, and did not inform anyone at Walmart about the reason for his absence. Although Custin testified that he attempted to notify personnel early on the morning of each day he was absent, he provided no credible reason for failing to notify Walmart personnel during the hours that the store was open to the public. Having considered those circumstances, and having carefully reviewed the record, we find no merit to Custin's argument.

Custin also argues that, in "the hearing examiner's own words, 'there were no other issues disputed by Walmart other than the allegation that Mr. Custin left the job without good cause attributable to the work[.]'" Custin also cites the Appeal Tribunal decision stating that there were no other issues disputed by Walmart other than the contention "that the claimant voluntarily left the job without good cause attributable to the work." Custin reasons that since that was the only issue that was in dispute, and since it was resolved in his favor, he should not have been disqualified from receiving benefits.

Custin was well aware of Walmart's position that he had been separated from work for misconduct. After Custin applied for unemployment benefits, the first notice he received scheduled an appointment with a claims examiner, and in bold letters, stated that the reason for his appointment was that he may have been separated for misconduct in connection with his work. Custin was also mailed a copy of the notice of the Appeal Tribunal hearing, which explicitly stated that the issues involved were "voluntary leaving" and "discharge for misconduct." The Appeal Tribunal decision addressed both issues. Custin's argument is based upon his selective references to various documents. However, when all of the documents in the record are considered, it is readily apparent that Custin was notified in advance of the hearing that one of the issues would be misconduct. Further, at the inception of the Appeal Tribunal hearing, the Appeals Examiner explicitly informed the parties that "[t]he issues to be resolved were the issue of discharge for misconduct and the issue of voluntary leaving." Custin was fully informed that the hearing would involve both issues.

We have considered Custin's other arguments in light of the record, and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



1 Walmart's personnel manager is identified as "Beverly Shuck" in the transcript of the hearing before the Appeal Tribunal and in the Board's appeal brief. Custin identifies her as "Ms. Shupp" in his appeal brief.