DONNA J. BEECHER 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NOT FOR PUBLICATION WITHOUT THE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

DONNA J. BEECHER,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

and BANCROFT NEUROHEALTH, a New Jersey

Non-Profit Corporation,

Respondents.

_______________________________________

Telephonically argued March 11, 2015 -

Before Judges St. John and Rothstadt.

On appeal from the Board of Review, Department of Labor, Docket No. 417,247.

Donna J. Beecher, appellant, argued the cause pro se.

Anthony DiLello, 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. DiLello, on the brief).

Lisa M. Scidurlo argued the cause for respondent Bancroft (Stevens & Lee, attorneys; Ms. Scidurlo, on the brief).

PER CURIAM

Donna J. Beecher appeals from a final decision of the Board of Review (Board), which deemed her ineligible for unemployment benefits based upon the administrative finding that she was terminated from her job for severe misconduct pursuant to N.J.S.A. 43:21-5(b). Upon our review in light of the record and governing law, we affirm.

The record discloses the following facts and procedural history. Beecher worked as a program associate at Bancroft NeuroHealth, a New Jersey non-profit corporation (Bancroft), from February 1999 through October 2012. In that capacity, Beecher helped provide care for Bancroft's clients, many of whom suffer from developmental disabilities. Following a suspension pending an internal investigation, Beecher's employment was terminated on October 12, 2012, for refusing a work assignment and abandoning her shift on September 28 of that year.

On October 7, prior to her termination, Beecher filed a claim for unemployment benefits with the Department of Labor. The Deputy Director of the Division of Unemployment and Disability Insurance determined she was eligible for benefits without disqualification. Bancroft appealed the Deputy's determination to the Appeal Tribunal (Tribunal), which conducted a telephonic hearing on June 4, 2013.

Before the Tribunal, Beecher and Bancroft offered conflicting versions of the events precipitating her termination. On September 27, Beecher was reprimanded by a superior in front of a client (Client One) after Client One had been left unsupervised for a short period of time.1 Upon witnessing this interaction, Client One became upset and physically attacked the superior before being restrained. Bancroft initiated an investigation of the incident that same day, during which time Beecher was precluded from interacting with Client One.

The next day, Beecher was assigned to another client (Client Two). Testifying on her own behalf, Beecher stated Client Two was physically aggressive, pulling her hair and throwing things at her. Another Bancroft employee, assigned to work with Client One that day, was also having difficulty. According to Beecher, she and the other employee attempted to reach out to a supervisor to seek guidance on how best to remedy the volatile situation. When they were unable to do so, they took the initiative and switched clients.

Upon learning of the swap, Beecher's supervisor informed her she had to switch back to Client Two because she was prohibited from interacting with Client One pending the completion of the investigation of the prior day's incident. According to Beecher, the supervisor then told her to go home. She testified that, before leaving work, she attempted to speak with a manager, but could not locate him since he was not in his office. Moreover, Beecher stated she subsequently attempted to contact several individuals at Bancroft, ultimately reaching a Human Resources employee, with whom she remained in contact with during the investigation preceding her termination.

Offering the testimony of several of its employees, Bancroft disputed that anyone told Beecher to go home. Rather, according to the employees' accounts, she left on her own initiative after becoming upset over being reprimanded for changing clients. Bancroft also asserted Beecher never reported any problems with Client Two becoming aggressive. Furthermore, several of Beecher's superiors stated they were in the vicinity and readily available on the day in question, but Beecher made no attempt to speak with them before leaving.

In its June 10 decision, the Tribunal rejected Beecher's factual contentions as inconsistent and not credible. Specifically, it found "she willful[ly] avoided questions that would support [Bancroft]'s contention she left without contacting any superiors . . . [and] on several incidences gave conflicting testimony on procedures, policy, what the employer trained her on as well as what she did or did not do on the date in question." The Tribunal found Bancroft's version to be credible and, therefore, found Beecher "refused her assignment and left the facility without authorization." As such, the Tribunal reversed the Deputy's determination and concluded Beecher was terminated for severe misconduct, thus disqualified for benefits under N.J.S.A. 43:21-5(b).

Beecher appealed to the Board, which reviewed the record developed before the Tribunal and, "[s]ince [Beecher] was given a full and impartial opportunity to offer any and all evidence," affirmed without a further hearing. This appeal ensued.

Our review of the Board's decision is limited. See In re Stallworth, 208 N.J. 182, 194 (2011). We accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Hargrove v. Sleepy's, LLC, 220 N.J. 289, 301-02 (2015). Further, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (citation and internal quotation marks omitted). We overturn a Board determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence or inconsistent with the governing enabling statute or legislative policy. See Fisher v. Div. of Law, 400 N.J. Super. 61, 70 (App. Div. 2008).

Beecher argues that her actions did not amount to severe misconduct, and therefore she should not have been denied benefits under N.J.S.A. 43:21-5(b). Prior to 2010, the Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -24.30, included only two levels of misconduct which could disqualify an individual from unemployment benefits: misconduct and gross misconduct. See Silver v. Bd. of Review, 430 N.J. Super. 44, 48 (App. Div. 2013). "[G]ross misconduct" is "an act punishable as a crime" and results in a complete disqualification from benefits, whereas misconduct, although statutorily undefined, results in an eight-week disqualification. N.J.S.A. 43:21-5(b).

In determining what constitutes misconduct, we described the "two-prong standard" as follows: "First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Silver, supra, 430 N.J. Super. at 53. This requires "more than simply inadequate job performance that provides good cause for discharge." Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009).

The Legislature amended the UCL in 2010 to provide for an intermediate level of misconduct: "severe misconduct." An employee who has been discharged for severe misconduct is disqualified from benefits until reemployed for at least four weeks and has earned at least six times the employee's weekly unemployment benefit rate. N.J.S.A. 43:21-5(b). The statute does not define "severe misconduct," but provides a non-exhaustive list of qualifying examples, including: "repeated violations of an employer's rule of policy, repeated lateness or absences after a written warning by an employer, . . . abuse of leave . . . [or] behavior [that] is malicious and deliberate but is not considered gross misconduct . . . ." Ibid.

In Silver, we held that "[i]t would make no sense to allow for conduct with a lower level of culpability (such as mere inadvertence or negligence) to qualify as severe misconduct and carry with it a harsher sanction than simple misconduct." Silver, supra, 430 N.J. Super. at 55. Therefore, we construed the first two statutory examples of severe misconduct as requiring acts done "intentionally, deliberately, and with malice." Ibid. Nevertheless, we made clear that "repetitive violation . . . may justify a reasonable inference that the employee's disregard was deliberate and in that sense malicious." Id. at 57.

Here, the Board did not err in concluding Beecher's conduct fell within statutory meaning of "severe misconduct" as interpreted in Silver. First, we defer to the Tribunal's determination that Beecher's testimony was not credible. See Makutoff v. Bd. of Review, 427 N.J. Super. 218, 223 (App. Div. 2012) (noting appellate courts must give "'due regard to the opportunity of the one who heard the witnesses to judge their credibility'" (quoting In re Taylor, 158 N.J. 644, 656 (1999))). The finding Beecher left work on her own initiative without speaking with any of her superiors was supported by the testimony of Bancroft's employees. See Lourdes Med. Ctr., supra, 197 N.J. at 367. Furthermore, in leaving Client One unsupervised on September 27, then switching clients on September 28 and leaving work without authorization, Beecher committed repeated violations of Bancroft policies, which "justify a reasonable inference that [her] disregard was deliberate and in that sense malicious." Silver, supra, 430 N.J. Super. at 57. Consequently, we conclude the Board properly determined Beecher was terminated for severe misconduct and disqualified for unemployment benefits under N.J.S.A. 43:21-5(b).

Affirmed.

1 Beecher asserted the staff who relieved her were responsible for the oversight. Bancroft, however, maintained that Beecher's leaving her assigned client in the charge of another worker violated established policy.