TERRENCE I. MURPHY v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02455-12T3

TERRENCE I. MURPHY,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and WORKFORCE DEVELOPMENT

and K-MART CORP.,

Respondents.

_____________________________

August 19, 2014

Submitted May 28, 2014 Decided

 

Before Judges Sabatino and Rothstadt.

 

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 361,739.

 

Terrence I. Murphy, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor and Workforce Development (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

 

Respondent K-Mart Corporation has not filed a brief.

 

PER CURIAM

Terrence I. Murphy appeals from a final determination by the New Jersey Department of Labor and Workforce Development, Board of Review (Board), affirming a decision of an Appeal Tribunal that he was disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(b), because he was terminated by his employer, respondent K-Mart Corporation, for "severe misconduct connected with [his] work." Murphy was terminated for repeated lateness and absences. However, he argues that this should not have disqualified him from receiving benefits, as they amounted to only simple misconduct which he asserts cannot be used as "evidence of any kind of misconduct for purposes of unemployment eligibility." The Board contends that under N.J.S.A. 43:21-5(b), "severe misconduct" includes "repeated lateness or absences after a written warning by an employer." We have carefully considered these contentions in light of our review of the record and the applicable law, and we now affirm.

Murphy was employed by K-Mart from May 13, 2010 until September 23, 2011. He filed a claim for unemployment benefits on October 2, 2011. The Division of Unemployment and Disability Insurance (Division) denied his application on the ground that Murphy was discharged for "severe misconduct" connected with his work. On November 15, Murphy filed an appeal. An Appeal Tribunal held a hearing, during which Murphy and Larry Alexander, an assistant manager at K-Mart and Murphy's former supervisor, testified. The Appeal Tribunal affirmed the Division's decision. Murphy appealed that decision to the Board which remanded the matter back to the Appeal Tribunal.1 The Appeals Tribunal held an additional hearing at which only Murphy testified. After that hearing, the Appeal Tribunal affirmed the Division's decision for a second time. Murphy subsequently appealed to the Board again, which affirmed the Appeal Tribunal's decision.

In his testimony, Alexander confirmed that Murphy was late on seven dates in 2011, and absent on two dates in August 2011. As a result, he was written up in February 2011. He received multiple oral warnings, as well as a written warning on July 8, 2011, which he signed. Murphy testified that he was wrongly charged with unexcused absences on certain days, when he had actually switched schedules with other employees. But, he confirmed that he had been absent on two days because he was incarcerated. He attributed much of his lateness to highway traffic, and said that there were no alternative routes by which he could avoid traffic, although he said he tried to leave home earlier to avoid traffic.2

Both Alexander and Murphy confirmed that Murphy had received a copy of K-Mart's attendance policy when he was first hired in May 2010. Murphy also signed an acknowledgement that he had received that policy. It stated that an employee could be terminated if he or she accumulated six "points" in a six month period. An employee would receive one point for each unexcused absence, and one half-point for each day they were late to work. Murphy confirmed that by July 11, 2011, K-Mart claimed he had accrued four "points" for being late eight times, and that it had issued him a written warning.

On the day he was terminated, September 23, 2011, Murphy called K-Mart before the start of his shift. During the first hearing, Murphy testified that he was absent that day because his car had broken down; during the second hearing, he said he called because he was going to be late, due to construction on the highway. Alexander ultimately advised Murphy to stay home that day because he was "done" with his employment at K-Mart, as Murphy had accrued too many points due to his excessive absences and tardiness. It had been Murphy's understanding that by calling in two hours before his shift, his lateness or absence would be excused.

The Appeal Tribunal did not agree with Murphy's interpretation. In finding that Murphy was disqualified from receiving benefits, the Appeals Examiner noted:

While some of the claimant's attendance infractions may have been excused, there was clear testimony given that there were enough unexcused incidents to cross the threshold provided by the employer for termination. Additionally, while the claimant may have stated the traffic was not within his control, he gave testimony at the hearing that it was known and regular peril of his commute. The claimant had an obligation to either research alternate routes or determine when construction was going to be performed to better enable himself to arrive on time. He failed to do so knowing full well that he had already received a written warning for his attendance and that his job was in jeopardy. It is that failure which leads the Tribunal to reject his contentions and find his discharge to be for misconduct connected with the work.

 

As he was discharged for "repeated lateness or absences after a written warning by an employer," a specific example of severe misconduct given above, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b).

 

The Board subsequently affirmed that decision and this appeal followed.

Our review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We will not disturb the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid.

The Unemployment Compensation Law, N.J.S.A. 43:21-1 to -65, expresses the legislative intent that benefits be paid only to those who have become unemployed through no fault of their own, and the Board is obligated to preserve the fund "against claims of those not intended to share in its benefits." Brady, supra, 152 N.J. at 212 (quoting Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989)) (internal quotations omitted). Therefore, the statute sets forth penalties for individuals who have been discharged for misconduct, with the degree of penalty varying according to the level of misconduct. Silver v. Bd. of Review, 430 N.J. Super. 44, 54 (App. Div. 2013).

Under the present version of the statute as amended in 2010, there are three tiers misconduct, severe misconduct, and gross misconduct. N.J.S.A. 43:21-5(b). "Misconduct" is conduct that is "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." Silver, supra, 430 N.J. Super. at 52-53 (quoting N.J.A.C. 12:17-10.2(a)). It does not mean "mere mistakes," "minor but casual or unintentional carelessness or negligence," or "failure of performance as a result of inability or incapacity, inadvertence in isolated instances." Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 182 (App. Div. 1956) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636 (Wis. 1941)), certif. denied, 23 N.J. 579 (1957)). Misconduct does include deliberate refusal to comply with the employer's reasonable work rules, however. Broderick v. Bd. of Review, 133 N.J. Super. 30, 33 (App. Div. 1975). An individual discharged for misconduct may not collect benefits "[f]or the week in which [he] has been suspended or discharged . . . and for the seven weeks" thereafter. N.J.S.A. 43:21-5(b).

By contrast, "severe misconduct" is not precisely defined, but includes, for example, "repeated violations of an employer's rule or policy, [and] repeated lateness or absences after a written warning by an employer." N.J.S.A. 43:21-5(b). Because the term "misconduct" is presumed to have the same meaning throughout the statute, we likewise construe "severe misconduct as requiring acts done intentionally, deliberately, and with malice." Silver, supra, 430 N.J. Super. at 55. However, the above-noted examples of "severe misconduct" require repeated violations, whereas "simple misconduct . . . could result from a single such violation committed intentionally and with malice." Id. at 55-56. An individual discharged for severe misconduct may not collect benefits "[f]or the week in which [he] has been suspended or discharged . . . and for each week thereafter until [he] becomes reemployed and works four weeks . . . ." N.J.S.A. 43:21-5(b).

Defendant argues that his lateness and absences amount to no more than simple misconduct intentional, deliberate violations of his employer's rules. Silver, supra, 430 N.J. Super. at 52-53 (quoting N.J.A.C. 12:17-10.2(a)). Moreover, he attributes his repeated lateness to highway traffic.

We agree that Murphy's actions at least amount to simple misconduct. His violations of his employer's attendance policy, in the face of warnings and without any reasonable excuse, constitute a deliberate refusal to comply with the employer's reasonable workplace rules, and therefore amount to "misconduct." Id. at 49.

However, we further note that "repeated lateness or absences after a written warning by [a claimant's] employer," is a specific example of severe misconduct under N.J.S.A. 43:21-5. We have held that excusable absences, such as family emergencies, "do not constitute 'deliberate violation[s] of the employer's rules, . . . or . . . an intentional substantial disregard . . . of the employee's duties and obligations to the employer,'" and therefore do not constitute even simple misconduct. Parks v. Bd. of Review, 405 N.J. Super. 252, 256 (App. Div. 2009) (quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)).

We agree with the Appeal Tribunal's findings that Murphy's failure to find an alternative route or to leave earlier for work to avoid traffic, as well as his absence due to incarceration, were "intentional, deliberate and malicious." Silver, supra, 430 N.J. Super. at 57. Moreover, because Murphy committed those violations repeatedly, despite his employer's warnings, his actions rise to the level of severe misconduct under the statute. Id. at 55-56. Therefore, the Board properly characterized Murphy's chronic lateness and absences as severe misconduct and disqualified him from benefits. N.J.S.A. 43:21-5(b).
 

Affirmed.

1 The Board remanded the matter because "there [was] a need for additional testimony from claimant and the employer regarding the effective date of the claimant's discharge, and whether the claimant was discharged for simple or severe misconduct connected with the work."

2 He testified that he also asked K-Mart to give him a later starting time. He said he never got any response to the request.