EMILY AROWOSAYE 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NOT FOR PUBLICATION WITHOUT THE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

EMILY AROWOSAYE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and BAYONNE VISITING

NURSE ASSOCIATION, INC.,

Respondents.

__________________________________

April 7, 2014

Submitted February 24, 2014 Decided

Before Judges Kennedy and Guadagno.

On appeal from the Board of Review, Department of Labor, Docket Nos. 264,853.

Emily Arowosaye, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney (Lisa A. Puglisi, Assistant Attorney General and Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

PER CURIAM

Emily Arowosaye appeals from final agency action of the Board of Review affirming a decision of the Appeal Tribunal that disqualified her for six weeks of unemployment benefits following her discharge for misconduct pursuant to N.J.S.A. 43:21-5(b). Appellant argues that she was "fired unjustly" and that her employer's "lack of proper communication" resulted in her discharge. Having considered these arguments in light of the record and applicable law, we affirm.

I.

Appellant was employed as an on-call registered nurse for the Bayonne Visiting Nurse Association (BVNA) from June 1, 2009, through November 19, 2009, when she was terminated from her position. Appellant worked a shift from 4:00 p.m. to 8:00 a.m. the following day. During that time, she would ordinarily see two or three regular patients, and then would be "on call" for emergencies that came in each night. BVNA also provided appellant with an "I-pak" computer on which the agency would notify her of assignments and which she was expected to consult prior to starting her shift each day.

On November 17, 2009, a patient's son contacted the BVNA at approximately 1:00 p.m. and requested nursing assistance for his mother. The nurse supervisor advised that a nurse would arrive at the home in Bayonne between 4:00 p.m. and 5:00 p.m. that day, and thereafter contacted appellant and advised her to report to the patient's home between 4:00 p.m. and 5:00 p.m. as her first call on the day. The details of the appointment were also placed into the I-pak computer.

At 5:50 p.m., the patient's son called the nurse supervisor and stated that no nurse had yet arrived at the home. At approximately 6:10 p.m., the nurse supervisor was able to contact appellant on her cell phone, who advised she was stuck in some traffic and was either twenty minutes or twenty blocks from the home. The supervisor then asked appellant to contact the patient's son with this information.

When the supervisor spoke again with the patient's son at 6:30 p.m. and learned that appellant still had not arrived, he called appellant who said she was still in traffic. He then decided to see the patient himself because of the son's anxiety over his mother's condition, and told appellant to report to her next patient. The supervisor then went to the patient's home.

Appellant claimed she had left her home that day at 4:00 p.m., and first consulted her I-pak computer at 4:30 p.m., because she did not believe she had an obligation to open the computer until her formal shift began. The patient's son complained to the BVNA that appellant was "flippant" on the phone, and offered no support or assistance during his mother's final illness. The mother passed away that evening or the next day.

The BVNA had received other complaints about appellant prior to that time, and scheduled an appointment to meet with her on November 18, 2009. Appellant did not attend that meeting and the BVNA then asked appellant to attend a second meeting on November 19 at noon. Appellant reported to the meeting at 1:00 p.m. and was discharged at that time.

Appellant filed a claim for unemployment benefits on December 6, 2009. The BVNA objected to appellant's claim and there followed a series of hearings before the hearing office, decisions by the Appeal Tribunal, and two remands by the Board of Review.

On October 31, 2011, the Appeal Tribunal issued its decision and rejected the testimony of appellant. The tribunal explained that appellant's "[f]ailure to report to her first assigned patient during a shift that began at 4:00 p.m. or 4:30 p.m. supports the conclusion that [appellant] failed to comply with [lawful] and [reasonable] . . . instructions . . ." that did not require her to perform services "beyond the scope of her customary job duties." The tribunal concluded that appellant's actions constituted misconduct connected with her work, thereby disqualifying her from unemployment benefits pursuant to N.J.S.A. 43:21-5(b) for the period of November 15, 2009 through December 26, 2009. The Board of Review affirmed on July 17, 2012, and this appeal followed.

II.

Our "judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "Our function 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, 579-80 (1980)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006). See also Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). In matters involving unemployment benefits, we accord particular deference to the expertise of the Board of Review, and its construction and application of Title 43. See generally Brady, supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). If the Board's factual findings are supported "by sufficient credible evidence, courts are obliged to accept them." Brady, supra, 152 N.J. at 210 (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (l982)).

Applying these standards, we do not conclude that the Board's final agency action here was arbitrary, capricious or unreasonable. The record developed in this matter supports both the factual determinations and the legal conclusion of the Board under N.J.S.A. 43:21-5(b). That statute provided at the time of this case, in pertinent part:

An individual shall be disqualified for benefits[ ] . . . [f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week, as determined in each case.1

[N.J.S.A. 43:21-5(b).]

Although N.J.S.A. 43:21-5(b) does not define misconduct, we have held that the term embraces, among other things, "'a deliberate violation of the employer's rules,'" or conduct by an employee that bespeaks "'an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.'" Smith v. Bd. of Review, 281 N.J. Super. 426, 431 (App. Div. 1995) (quoting Beaunit Mills v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)). See also N.J.A.C. 12:17-10.2. A single act of insubordination may suffice. Smith, supra, 281 N.J. Super. at 431-32.

Here, the fact-finder determined that appellant's actions constituted misconduct in connection with her work, despite her contrary testimony. The record reflects that appellant's insouciant conduct and failure to attend a needy patient were a clear disregard of her employer's interests. Her conduct clearly also demonstrated a disregard of the standards of behavior that BVNA had a right to expect of its employee. See Borowinski v. Bd. of Review, 346 N.J. Super. 242, 246 (App. Div. 2001); Beaunit Mills, supra, 43 N.J. Super. at 172.

1 N.J.S.A. 43:12-5(b) was amended in 2010 and now mandates disqualification for the "seven weeks" following the week of discharge for misconduct.