Opinion
DOCKET NO. A-5155-13T2
02-04-2016
KERLANDE FRANCOIS, Appellant, v. BOARD OF REVIEW and CARE ONE AT PARSIPPANY TROY HILLS, Respondents.
Kerlande Francois, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). Respondent Care One at Parsippany Troy Hills has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Board of Review, Department of Labor, Docket No. 434,282. Kerlande Francois, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). Respondent Care One at Parsippany Troy Hills has not filed a brief. PER CURIAM
Kerlande Francois appeals a May 21, 2014 Board of Review decision affirming an Appeal Tribunal finding that she was disqualified for unemployment benefits as of April 7, 2013, and was liable to refund $2216 for benefits to which she was not entitled. We affirm.
I.
We discern the following facts and procedural history from the record. Francois was employed as a certified nurse's aide at Care One At Parsippany Troy (Care One) from December 28, 2012, through April 8, 2013. Francois filed a claim for unemployment benefits, which resulted in a July 15, 2013 determination by the Deputy of the Division of Unemployment Insurance (Deputy) that Francois was disqualified from benefits because she voluntarily left work on April 8, 2013, without good cause attributable to the work. Francois appealed the Deputy's decision.
On August 29, 2013, an Appeal Tribunal held a hearing on the appeal. Francois testified that in March 2013, she signed paperwork volunteering to work overtime shifts, and agreeing to work overtime shifts when scheduled to do so.
Francois acknowledged she was scheduled to work an overtime shift on April 9, 2013, from 3:00 p.m. to 11:00 p.m., but testified that while at work on April 8, 2013, she left a note for the staffing coordinator requesting that she no longer be scheduled for overtime shifts.
Francois spoke to the staffing coordinator by telephone on April 9, 2013, and indicated she would not work the scheduled overtime shift that day and would not work any overtime during the 3:00 p.m. to 11:00 p.m. shift unless others were assigned to help her perform her duties. According to Francois, the staffing coordinator told her that she needed to speak with the Director of Nursing (DON).
Francois acknowledged that the DON called her on April 9, 2013, and left a message stating that Francois was suspended and that the DON would speak with the administrator regarding whether Francois could return to work. Francois did not return the DON's message or make any effort thereafter to speak with the DON, the Care One human resources department, the administrator, or anyone else at Care One about returning to work.
Francois testified that on April 10, 2013, she sent a letter by telefax to the DON requesting information about her suspension. She sent the letter to a Care One telefax number, but did not confirm if the DON received it.
Francois called her shift supervisor on April 10, 2013, the date she was next scheduled to work a regular shift. Francois testified that the shift supervisor informed her that her name did not appear on the schedule to work that day.
Francois also testified that she received $2216 in unemployment benefits for the weeks ending April 20, 2013, through June 8, 2013.
Care One's staffing coordinator testified that at 10:00 a.m. on April 9, 2013, Francois informed her she would not appear for the overtime shift that was scheduled to begin at 3:00 p.m. Francois was advised she would be considered a "no call-no show" because an emergency did not preclude her attendance. Francois told the staffing coordinator that no one was helping her during her overtime shift, she had car issues, and she would not report to work. Francois did not appear to work the overtime shift and did not appear for her regular shift on April 10, 2013.
The staffing coordinator next heard from Francois a week later, when Francois called and requested copies of her paystubs. During that conversation, Francois did not ask to speak to the DON, did not inquire about her job status, and did not express an interest in returning to work.
Care One's payroll benefits coordinator also testified. She explained that Francois had voluntarily agreed to work the scheduled overtime shift on April 9, 2013, and that during her employment she had "called out" on eight occasions and did not appear to work her scheduled shifts.
The DON called Francois on April 9, 2013, and left her a message requesting that Francois meet with her to discuss the call-outs, and advising Francois that she was suspended because of the call-outs. The DON sent Francois a certified letter on April 10, 2012, advising that there had been attempts to contact her regarding her employment, that Care One had not received any communications from her, and that unless Care One heard from her by April 15, 2012, it would consider that she abandoned her position and her employment would be terminated. The payroll benefits coordinator did not have a receipt reflecting that Francois received the letter, and Francois denied receiving it.
The Appeal Tribunal issued a decision on August 30, 2013, finding Francois voluntarily left her employment without good cause attributable to the work because she failed to contact Care One regarding her employment status after April 10, 2013, "did not return to work and . . . did not speak to her employer regarding her attendance issues." The Appeal Tribunal concluded that Francois "did not make a reasonable attempt to preserve her job."
The Board subsequently issued a decision, remanding the matter for additional testimony from Francois and the DON regarding Francois's "suspension and subsequent separation." The Appeal Tribunal conducted the remand hearing during which Francois provided additional testimony. The DON was subpoenaed to testify, but did not call into the hearing and did not testify.
Francois testified that in the letter she telefaxed to the DON on April 10, 2013, she acknowledged agreeing to work overtime shifts, but indicated the "problem" was that her co-employees did not provide her with adequate assistance during those shifts. The letter mentioned that Francois had been sick and had given notes to the staffing coordinator for prior absences. The letter also stated that since the DON was "going to put [Francois] on suspension," she understood that she could not return to work until the suspension ended. She requested a copy of the "letter of suspension to find out when to come back to work."
Francois testified that she forwarded the letter by telefax to a number shared by many people, but did nothing to confirm the DON received it. She acknowledged she did not receive a response to the letter from the DON, and she never otherwise attempted to contact the DON to determine when she could return to work. Francois filed for unemployment benefits on April 14, 2013, four days after she telefaxed the letter to Care One, and without making any other attempt to contact Care One about returning to work.
The Appeal Tribunal considered the testimony from both hearing dates and issued a decision on March 19, 2014, finding that it was "unreasonable to believe" that Francois did not make any attempt, "other than the letter by [tele]fax[,] to contact" Care One regarding her employment status. The Appeal Tribunal noted that Francois spoke directly to the staffing coordinator after her suspension, but requested only a copy of her paystubs. The Appeal Tribunal concluded that Francois's "failure to contact" Care One "regarding her employment status with the company demonstrate[d] her intent to leave the job," and determined Francois was ineligible for benefits and obligated to refund the benefits she received.
In a May 21, 2014 decision, the Board affirmed the Appeal Tribunal's decision. Francois appealed.
II.
The scope of our review of a determination of an administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's ruling unless it is "arbitrary, capricious, or unreasonable." Barrick v. State, 218 N.J. 247, 249 (2014). When we "'review[] the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 2 00 N.J. Super. 74, 79 (App. Div. 1985)). We must "give due regard to the opportunity of the one who heard the witnesses to judge their credibility." Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). For those reasons, "[w]e are obliged to defer to [an administrative agency] when its factual findings are based on 'sufficient credible evidence' in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (quoting Brady, supra, 152 N.J. at 210).
Francois contends she did not voluntarily leave her employment with Care One. For the first time on appeal, she asserts she could not appear for work on April 9, 2013, because she was sick. During the two hearings before the Appeal Tribunal, Francois did not testify she failed to appear for work on April 9, 2013, because of an illness. She testified that she did not report for work because her co-employees did not provide her with assistance, and that she left a note for the staffing coordinator on April 8, 2013, advising she would not work on April 9, 2013, for that reason.
Francois also argues that she did not have excessive absences and that she had provided Care One with doctor's notes when she missed work prior to April 9, 2013. During the hearings before the Appeal Tribunal, however, Francois did not introduce into evidence the purported doctor's notes she includes in her appendix here. She also did not present evidence showing that the doctor's notes excused her from appearing at work on any of the eight days Care One considered her a "no call-no show."
In any event, we do not consider Francois's arguments or evidence regarding her purported illness on April 9, 2013, or the doctor's notes attached to her appendix, because they were not presented to the Appeal Tribunal. Zaman v. Felton, 219 N.J. 199, 226-27 (2014); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[O]ur appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (internal quotation marks and citation omitted).
Here, the Board rejected Francois's implicit contentions that Care One terminated her employment or that she was in imminent danger of being terminated. There was no evidence, however, Francois's employment was terminated, or was in imminent danger of being terminated, because of her failure to work on April 9, 2013, or because of her prior absences. The evidence showed that she was terminated due to her failure to take any action to return to work after she was suspended. The Board correctly concluded that Francois did not present sufficient evidence to support her claim that on April 9, 2013, her discharge was imminent.
For the same reason, we are not persuaded by Francois's argument that our decision in Parks v. Board of Review, 405 N.J. Super. 252 (App. Div. 2009), requires a reversal. In Parks, we considered whether the claimant's excessive absences constituted "'misconduct' within the meaning of N.J.S.A. 43:21-5(b)." Id. at 256. The lack of any evidence that Francois's employment was terminated by Care One for excessive absenteeism renders our decision in Parks inapplicable here.
Unemployment benefits are intended to provide income to an individual who is out of work through no fault of his or her own. Brady, supra, 152 N.J. at 212. It was Francois's "burden of proof to establish [her] right to unemployment benefits." Id. at 218. Because she left work voluntarily, she was obligated to prove she did so with good cause attributable to the work. N.J.S.A. 43:21-5(a). Good cause has been defined as "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).
We are convinced there is sufficient credible evidence supporting the Board's finding that Francois abandoned her job by failing to take any action, beyond her telefax letter, to contact the DON or anyone else at Care One after being notified of her suspension. The evidence further supports the Board's determination that Francois did not return to work, did not speak to her employer about her suspension or her attendance issues, and failed to make a reasonable attempt to preserve her job. Employees are required to do what is "necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288. Francois failed to do so here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION