MARK KUSHNER 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NOT FOR PUBLICATION WITHOUT THE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-0

MARK KUSHNER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and TOTAL RENAL

CARE, INC.,

Respondents.

_____________________________

November 7, 2014

Argued September 16, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the Board of Review, Department of Labor, Docket No. 421,687.

Mark Kushner, appellant, argued the cause pro se.

Christopher J. Hamner, 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. Hamner, on the brief).

Respondent Total Renal Care, Inc. has not filed a brief.

PER CURIAM

Unemployment compensation claimant Mark Kushner appeals from the Board of Review's July 1, 2013, order, affirming the Appeal Tribunal's May 14, 2013, decision denying him benefits on the ground that he committed severe misconduct the falsification of records. On appeal by the employer, the Appeal Tribunal's decision reversed the deputy's initial determination awarding claimant benefits. We reverse and remand for a new hearing.

I.

We can discern the following facts from the record, albeit incomplete, as we discuss below. Claimant is a biomedical technician. He serviced dialysis machines for over eighteen years for Hackensack University Medical Center (HUMC) before Total Renal Care, Inc. (TRC) purchased the medical center's dialysis unit. Claimant then became an employee of TRC in January 2012. He received no change in pay, and continued to work at HUMC, as well as other sites.

Although claimant received numerous commendations for his work for HUMC, TRC cited him for poor job performance in late 2012 and again on February 15, 2013. Claimant contested the poor reviews, and laid blame at the feet of his supervisors. He did so in two strongly worded emails dated February 15 and 18, 2013, addressed to facility administrator John Gallorini; one of the emails was also sent to other managers.1 Three days later, TRC alleged that claimant falsified a document to indicate that on February 21, 2013, he performed an annual preventative maintenance on a dialysis machine.

Gallorini was TRC's sole witness at the Appeal Tribunal hearing. He asserted: "[W]e came upon this machine on the morning of the 21st at about 9 AM . . . 9:30 AM and the maintenance document was already filled out." Gallorini asserted that claimant reported for work at about 7:00 a.m., and the preventative maintenance "usually takes about five hours." Therefore, he concluded the maintenance document was false. He also alleged, "Upon further inspection, it was found that the machine never left the floor in the last 24 hours as shown by post treatment reports." Gallorini did not offer into evidence the allegedly falsified document.

Gallorini testified that claimant contended that he performed the maintenance before the 21st and simply filed the paperwork on the 21st. Although key portions of claimant's testimony are described as inaudible, and are omitted from the transcript, we can discern that claimant testified that the computer system was down when he performed the annual maintenance. He explained, "When I give the annual [preventative maintenance] the computer system was down. And I can't document (inaudible) day. (Inaudible). I spent all of my (inaudible) in another (inaudible). The day when I come back I got (inaudible)."2

In response, Gallorini testified that claimant could not have worked on the machine earlier because it was continuously in use by patients. He testified that another facility administrator researched when patients utilized the particular machine during the time claimant contended he worked on the machine. Gallorini testified, "[W]e came to find, through the records on the patient treatments, with the identification number on the machine . . . to . . . never have left the floor for . . . I believe it went back a week." The witness offered to present those records, but did not. He admitted there was no other way to verify that maintenance had been done.

The Appeal Tribunal reversed the award of benefits. The Tribunal found

The claimant documented on the system and on the machine that preventative maintenance was performed when it had not been performed. The employer checked back one week prior to the date the claimant verified his maintenance and the machine was in use during the entire time. The claimant had two prior verbal/written warnings for poor job performance.

The Tribunal found that claimant committed severe misconduct under N.J.S.A. 43:21-5(b), and N.J.A.C. 12:17-10.2 and -10.5. The Board of Review subsequently affirmed "on the basis of the record below."

Claimant appeals and presents the following point on appeal

CLAIMANT NEVER FALSIFIED ANY DOCUMENTS DURING THE ENTIRE DURATION OF HIS EMPLOYMENT. HE PERFORMED THE MAINTENANCE ON THE MA[C]HINE # 31 ON 2/18/13 AND FINISHED DOCUMENT[A]RY PART OF WORK ON 2/21/13 DUE TO THE CIRCUMSTANCES THAT WERE COMPLETELY OUTSIDE OF HIS CONTROL. ALL HIS ACTIONS WERE ARRANGED AND APPROVED BY IMM[E]DIATE SUPERVISOR, JOHN GALL[O]RIN[I]. . . . AND, THEREFORE, HE SHOULD NOT HAVE BEEN DISQUALIFIED FOR BENEFITS.

II.

We recognize that our scope of review is limited. We are bound to affirm the Board's determination if reasonably based on the proofs. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[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)). However, we may intervene if the agency's action was arbitrary, capricious or unreasonable, or it was "'clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). We may disturb a Board of Review decision if we determine that the record does not "contain[] substantial evidence to support the findings on which the agency based its action . . . ." Brady, supra, 152 N.J. at 211 (internal quotation marks and citation omitted). "Courts are not to act simply as a rubber-stamp of an agency's decision where it is not supported by substantial, credible evidence in the record as a whole . . . ." Philadelphia Newspapers, Inc. v. Bd. of Review, 397 N.J. Super. 309, 318 (App. Div. 2007), certif. denied, 195 N.J. 420 (2008).

Applying these principles, we are not satisfied that sufficient, credible evidence in the record supports the Board's decision. First, the state of the record which includes a transcript that reflects numerous omissions as a result of inaudible testimony is plainly inadequate. Second, the Tribunal's findings, adopted by the Board, relied on triple hearsay that lacked a residuum of reliability.

The Board is required to reach independent findings of fact based upon the Appeal Tribunal record, or it may take additional evidence. Ryan v. Brown, 279 N.J. Super. 648, 651 (App. Div. 1995) (citing N.J.S.A. 43:21-6(e)). Here, the Board stated that it relied on the record created by the Appeal Tribunal. In Ryan, we were faced, as we are here, with an Appeal Tribunal transcript that included numerous omissions. We held, "Manifestly, a reviewing body employing the 'de novo on the record' standard is in no position to make independent determinations of fact in the absence of a record substantially reflecting what transpired at the required evidentiary proceeding, unless further steps are taken to flesh out the record." Id. at 651. As the record was deficient, we remanded for the production of "an adequate record and a decision based thereon." Id. at 652.

The Board's order is also infirm because it is based on the Board's adoption of an Appeal Tribunal decision that inappropriately relied on hearsay. We recognize that hearsay is admissible in unemployment hearings. N.J.A.C. 1:12-15.1(a). But, the residuum rule still applies. DeBartolomeis v. Bd. of Review, 341 N.J. Super. 80, 85 (App. Div. 2001). The evidence rules governing unemployment benefit cases provide: "Notwithstanding the admissibility of hearsay evidence, the decision as rendered must be supported by sufficiently substantial and legally competent evidence to provide assurance of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:12-15.1(b).

In this case, the essence of the finding of severe misconduct was an allegedly false document. The parties do not dispute that claimant's February 21, 2013, computer entry stated that preventative maintenance of a particular machine was performed. The alleged falsity is based on the finding that the maintenance was not performed any time during the preceding week. However, the only evidence to support the finding of non-performance was hearsay.

Gallorini admitted that he could not verify by inspection whether the maintenance had or had not been performed. The sole circumstantial evidence of non-performance consisted of patient treatment records, which allegedly demonstrated that the machine was in continuous use, making it impossible for claimant to have performed preventative maintenance on February 18, 2013. However, TRC did not offer into evidence the patient records which were hearsay documents themselves, but presumably would be admissible as business records, if appropriately authenticated by a custodian of records, and if there is no basis to find them untrustworthy. See Manata v. Pereira, 436 N.J. Super. 330, 346 (App. Div. 2014) (discussing predicates for admissibility of business record under N.J.R.E. 803(c)(6)).

TRC did not even present testimony from the facility administrator who researched the records, whose description of the patient records would be double-hearsay. Rather, TRC presented Gallorini's triple hearsay of what the researcher told him, about where and how the machine was employed. That simply is insufficient by itself to prove that the machine could not have been serviced as claimant contended.

Upon remand, the Board shall require the admission of the cited patient records, by a witness competent to interpret the records and to explain whether they indeed demonstrate when the machine was in use, and when, if at all, it was available to be serviced. Claimant shall also be offered the opportunity to present the various documents that he included, without objection, in the record on appeal.

Reversed and remanded. We do not retain jurisdiction.

1 TRC served claimant with "corrective action forms," dated November 15, 2012, and February 15, 2013, warning him of poor job performance in various respects, including poor record keeping. The forms contained claimant's responsive comments. He attributed his limitations to TRC's failure to train him in the use of their computer systems and in their methods of reporting; he also criticized TRC's computer system. The two emails from claimant followed meetings with his superiors in February 2013, in which he opposed a "final warning," attributed issues to a lack of training, and asserted that the "company is . . . setting me up for failure." None of these documents were presented to the Appeal Tribunal. Claimant has included these in his appendix on appeal without objection.

2 Our understanding of claimant's incompletely transcribed testimony is partly enhanced by assertions in his brief before us. Claimant contended in his brief that he performed the maintenance on February 18, 2013, but could not document it because the computers were down that day. He notified Gallorini, who told him to finish the documentation later. The next day, Gallorini assigned claimant to work in Wayne; as a result, claimant could not document his work. He returned to HUMC on the 20th, but was confronted with six machines in need of repair. Gallorini allegedly told him to complete the repairs and do his documentation later. The next day was claimant's first opportunity to complete the documentation. Claimant provided telephone records to document his alleged calls to Gallorini. We recognize that claimant's version of events is not explicitly included in the transcript of the Appeal Tribunal hearing. However, the transcript includes numerous "inaudible" entries at points where he may have presented it.