LUCINDA BRACEY-COUNCIL v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT PNC BANK
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0949-16T3
LUCINDA BRACEY-COUNCIL,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF
LABOR AND WORKFORCE DEVELOPMENT,
PNC BANK, and EQUIFAX,
Respondents.
________________________________________
Argued December 4, 2017 – Decided December 21, 2017
Before Judges Sabatino and Whipple.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
088,085.
Adam L. Schorr argued the cause for appellant
(Alan H. Schorr & Associates, PC, attorneys;
Adam L. Schorr, on the briefs).
Robert M. Strang, Deputy Attorney General,
argued the cause for respondent Board of
Review (Christopher S. Porrino, Attorney
General, attorney; Jason W. Rockwell,
Assistant Attorney General, of counsel; Robert
M. Strang, on the briefs).
Respondents PNC Bank and Equifax have not
filed briefs.
PER CURIAM
Claimant Lucinda Bracey-Council appeals the Board of Review's
September 30, 2016 final agency decision denying her claim for
unemployment benefits. Because of material uncertainties and
other deficiencies of the administrative record that bear upon
claimant's eligibility, we remand for a further hearing at which
those matters can be explored and the merits reconsidered.
Claimant was employed by PNC Bank for approximately nine and
a half years as a relationship manager. She worked out of a PNC
branch office in New Jersey. For a number of years claimant has
suffered from chronic stomach-related medical issues. Prior to
the events that led to the present case, claimant had to miss work
for several days because of illness. On one previous occasion,
she missed nine days of work and on another occasion she missed
thirteen days. According to claimant, on both of these prior
occasions she called out sick during her absence, and then
contacted the company's HR Service Center upon her return to work.
PNC's written company policy concerning unexpected family or
medical leaves of absence instructs employees to "[f]ollow normal
call-off procedures and contact the HR Service Center as soon as
practical to discuss the absence." The written policy specifies
no maximum number of days that can elapse before a sick employee
must contact the HR Service Center, nor any more concrete
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definition of the meaning of the term "as soon as practical." Nor
does the written policy make clear that adverse consequences, such
as termination of employment, will result if an employee takes
longer than a minimally "practical" amount of time to contact the
HR Service Center, except to say that if a PNC employee does not
follow "established advance-approval and call-off procedures" for
what is termed "intermittent" or "reduced schedule leave[,]" the
worker's "time off may not qualify as job protected leave." The
written policy does state that "[f]or additional information or
for special circumstances, contact the HR Service Center."
In February 2016, claimant developed a stomach condition that
made her too ill to come to work. Starting on February 13,
claimant called her branch office on a daily basis, advising her
direct supervisor or the bank's branch manager that she would not
be able to come to work that day.
Claimant's stomach illness persisted. By February 22, she
came under the care of a physician, Robert A. Adair, M.D.
According to a signed typed letter, written on Dr. Adair's
letterhead, which was admitted into evidence at the Appeal
Tribunal, claimant was under his care from February 22 through
March 26. Dr. Adair further noted that claimant had been
hospitalized during this period with "multiple medical
conditions," and was "totally disabled and unable to work."
3 A-0949-16T3
Claimant's hospital stay, which spanned six days from her admission
on March 19 through her discharge on March 25, is corroborated
with a certification from Holy Name Medical Center. The hospital's
certification was similarly admitted into evidence at the Appeal
Tribunal hearing.
According to the telephonic testimony of a PNC Employee
Relations Area Manager at the hearing, the Area Manager became
concerned that claimant was going to continue calling in sick on
a daily basis. The Area Manager felt that claimant needed to
contact the company's Leave and Disability ("L&D") unit, 1 because
her absence possibly could be governed by the New Jersey Family
Medical Leave Act,
N.J.S.A. 34:113-1 to -16.
According to the Area Manager, on February 24, 2016, she
spoke with claimant and told her to contact the L&D unit. The
Area Manager recalled that she spoke that same day with claimant's
direct supervisor and relayed the same instructions. The Area
Manager was not asked by the hearing examiner whether claimant had
described her then-existing medical condition at the time of the
call. Nor was the Area Manager ever asked to describe how time-
consuming and onerous it would be for a sick individual to interact
with the L&D unit while she was ill, or exactly what the process
1
According to the Area Manager's testimony, the L&D unit is the
same thing as, or is part of, the HR Service Center.
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entailed. According to claimant's unrefuted testimony on that
subject, it was a "lengthy process" to contact the L&D unit.
Claimant anticipated the unit would ask the employee to place a
call to an insurance company.
Claimant remained ill and called out sick daily, but did not
contact the L&D unit. According to the Area Manager's testimony,
the persisting situation prompted her to call claimant a second
time, which occurred on Friday, March 4. As the Area Manager
recalled this undocumented conversation, she and claimant agreed
on March 4 that claimant could have "over the weekend" to determine
what she was going to do. If claimant sufficiently recovered to
come back to work on Monday, March 7, then she should contact the
L&D unit on Monday to "get the leave [of absence] in place for the
time she had been out, and move forward." On the other hand, if
claimant did not return to work on March 7, the Area Manager and
claimant allegedly agreed that claimant would need to "open" a
"leave claim to cover her future absences that she may have
needed."
Notably, the record is bereft of any e-mail, text message,
letter, memo or other contemporaneous documentation substantiating
what the Area Manager told claimant in their March 4 conversation.
Nor was claimant, who was self-represented, asked at the hearing
any questions about the March 4 conversation described by the Area
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Manager. The record does contain a pre-hearing written submission
by claimant in which she stated that she had been contacted by an
Area Manager "out of Myrtle Beach, SC,"2 who "suggested that I
contact the [L&D] department during my absence." Claimant added
that, "Since I was still not feeling well [I] thought I would have
the ability [to contact] the . . . department when I returned [to
work] as I previously had done." According to claimant's written
submission, the Area Manager "also said that I should plan on
returning to work by March 7th, however I was still feeling unwell
and could not return upon that date."
Regardless of what exactly was said in the March 4
conversation, it is undisputed that claimant did not return to
work on March 7. Consequently, on Thursday March 10, 2016, the
Area Manager sent a certified letter to claimant. The letter
essentially conveyed an ultimatum to claimant: either "return to
work no later than Monday, March 14, 2016 or I will assume that
you have chosen to resign from PNC, and your employment will be
terminated." The letter did not state that claimant had any option
to contact the L&D unit at that point to preserve her position.
2
The Area Manager who testified apparently is based at PNC's
offices in Pittsburgh, Pennsylvania and not in South Carolina, but
this may be the same person.
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Nor did it mention what claimant should or could do, if anything,
if she was still feeling too ill to return to work.
According to claimant's testimony, she regarded the certified
letter as "somewhat threatening." Moreover, she at that time "was
feeling vulnerable from [her] lengthy illness." Claimant "assumed
basically" that she had been terminated, and therefore "didn't
contact" her employer further at that point.
As we previously noted, on Friday, March 19, four days after
the Area Manager's March 14 deadline for her to return to work,
claimant was admitted to the hospital, where she remained for six
days until her discharge on March 25.
Claimant subsequently filed a claim for unemployment benefits
with the Department of Labor and Workforce Development. The
Department's Deputy denied her claim on various grounds. In
particular, the Deputy concluded claimant had "left work
voluntarily" on February 16, 2016, had been "terminated for job
abandonment" because she "failed to properly apply for a leave of
absence and never returned back to work on the date agreed with
[her] employer," and claimant's "reason for leaving [work] does
not constitute good cause attributable to the work." The Deputy's
decision said nothing about claimant's medical condition.
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Claimant disputed the Deputy's denial of benefits. A
telephonic hearing before an Appeals Examiner was conducted on
June 16, 2016, at which claimant, and the Area Manager testified.
Following the telephonic session, the Appeals Examiner issued
a written decision that same day, upholding the denial of benefits.
The Appeals Examiner found that claimant was disqualified because
she "left work voluntarily without good cause attributable to the
work" pursuant to
N.J.S.A. 43:21-5(a). More specifically, the
Appeals Examiner rejected as irrelevant claimant's assertion that
she had been allowed to call in sick over several days on two
previous occasions without contacting the L&D unit until she
returned to work. The Appeals Examiner found "claimant's analogy
does not work in the present situation because of the length of
time she needed to be off." The Appeals Examiner also rejected
claimant's assertion that she felt vulnerable and threatened by
the Area Manager's certified letter. The Appeals Examiner found
that "claimant had ample opportunity to digest the employer[']s
verbal remarks and act upon them."
The Appeals Examiner said nothing in her decision about Dr.
Adair's letter, or his statement that claimant was totally disabled
and unable to work from February 22 through March 26, 2016. Nor
did the Appeals Examiner's decision make any reference to
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claimant's documented six-day hospitalization that began on March
19.
On September 30, 2016, the Board of Review upheld the Appeals
Examiner's determination. The Board stated that it "agree[d] with
the decision reached[.]" Oddly, the Board "deleted" three
sentences from the Appeals Examiner's findings of fact because it
felt that they conflicted with the Examiner's rejection of
claimant's assertion that "she had submitted leave slips in the
past that were approved 'after the fact.'"
Now represented by counsel on this appeal, claimant argues
the Department's decisions in her case were arbitrary and
capricious, and inconsistent with the applicable statutes,
regulations, and case law. She maintains that she did not abandon
her job, that she had legitimate reasons for not contacting the
L&D unit while she was ill, and that she was not terminated for
just cause. She further argues that it was improper for the Board
of Review to "delete" factual findings of the Appeals Examiner
that were arguably supportive of her reliance on the employer's
past practices.
In considering claimant's appeal, we are mindful that we
ordinarily afford considerable deference to the administrative
decisions of the Board of Review. Generally, we will not set
aside the Board's decisions on unemployment benefits matters
9 A-0949-16T3
unless they are shown to violate legislative policies, or are
arbitrary, capricious or unreasonable. Silver v. Bd. of Review,
430 N.J. Super. 44, 58 (App. Div. 2013). Even so, our scope of
review is not one of complete deference. Rather, "it calls for
careful and principled consideration of the agency record and
findings[.]" Mayflower Securities v. Bureau of Securities,
64 N.J. 85, 93 (1973).
As a preliminary legal question, we conclude that, applying
the applicable statute,
N.J.S.A. 43:21-5, and regulation, N.J.A.C.
12:17-9.11, claimant did not quit or abandon her employment at
PNC. N.J.A.C. 12:17-9.11(a) provides, in pertinent part, that an
employee "who is absent from work for five or more consecutive
work days and who without good cause fails to notify the employer
of the reasons for his or her absence shall be considered to have
abandoned his or her employment."
Here, although claimant missed work for more than five days,
she manifestly did notify her employer of the reasons for her
absence, i.e., her ongoing illness that ultimately resulted in her
hospitalization. Indeed, the Area Manager essentially admitted
the lack of abandonment in her testimony, acknowledging that
claimant "did call in[,]" and "as far as the job desertion I won't
dispute that either[.]" See also DeLorenzo v. Bd. of Review,
54 N.J. 361, 363-64 (1969) (construing
N.J.S.A. 43:21-5(a) to signify
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that an employee has not voluntarily left work if the "employee
becomes ill and does those things reasonably calculated to protect
the employment").
Putting aside the unproven abandonment issue, the more
difficult legal question posed here is whether claimant was rightly
terminated for cause because she did not follow her employer's
instructions to contact the L&D unit during her illness. On this
issue, the existing record is murky and incomplete.
As we have noted, the March 4 telephone conversation between
the Area Manager and claimant, which the Appeals Examiner treated
as pivotal, is not contemporaneously documented. Claimant's
written submission asserts that the Area Manager only "suggested"
that she contact the L&D unit. Claimant does not admit that she
had agreed to contact the L&D unit during her illness.
Unfortunately, after the Area Manager testified at the hearing
about her recollection of the March 4 conversation, claimant was
not herself asked to testify about her own version of that
particular call.
Moreover, the record is bereft of any evidence about the
severity of claimant's illness and symptoms while she was out of
work sick. The record is equally void of evidence addressing
whether it would have been realistic and fair to expect her to
spend what she characterized as a "lengthy process" on the
11 A-0949-16T3
telephone with the L&D unit, and perhaps an insurance company,
while she contends she was in the throes of a persisting stomach
illness and under the care of a physician. Dr. Adair's letter
provides no insight on the actual severity of claimant's condition
between February 22 and March 26, other than noting that it
resulted in hospitalization. The extensive six-day period of
claimant's hospitalization – which began on March 19, not long
after the Area Manager's certified letter of ultimatum – arguably
supports a circumstantial inference that claimant was too sick to
participate in a "lengthy process" to validate her sick leave.
The record is also murky as to what steps claimant would have
had to undertake if she had followed up with the L&D unit, and how
time-consuming and burdensome those steps would have been. The
particulars are not spelled out in the portion of the employer's
written leave policy contained in the record.
It is also unclear from the present record as to whether the
Area Manager had clearly communicated to claimant, before the
March 14 certified letter, that if she failed to follow through
with the L&D unit she would be terminated, or whether instead some
lesser consequences would ensue, such as loss of pay. Nor does
the record enlighten us whether, if an employee is legitimately
too ill to process a leave application though the L&D unit, a
third party could be designated to do so on an employee's behalf,
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or whether a medically-based waiver or relaxation of that policy
is ever allowed. It is also puzzling as to why a veteran mid-
level employee of the company, such as claimant, would cavalierly
jeopardize her employment and future bonus opportunities, unless
she truly was too ill to carry out the Area Manager's alleged
instructions, or was operating under some reasonable
misunderstanding.
In sum, the present record has many open ambiguities,
omissions, and uncertainties that materially bear upon the
critical facts relating to the bona fides of claimant's discharge.
Given the circumstances, we therefore remand the matter for a new
hearing before a different Appeals Examiner, who can develop the
record in the subject areas we have identified, ask appropriate
follow-up questions, seek additional documentation, and make
necessary credibility findings. If feasible, the remand hearing
shall be in person rather than by telephone. To assure an
independent examination of the proofs and legal issues on remand,
we direct that the new hearing be conducted before a different
Appeals Examiner.
The Board of Review's final agency decision is therefore
vacated without prejudice, and the matter is remanded for a new
hearing and a fuller development of the record. We do not retain
jurisdiction.
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