Opinion
DOCKET NO. A-0322-13T4
04-23-2015
GINA M. LANG, Appellant, v. BOARD OF REVIEW and KOHL'S DEPARTMENT STORES, INC., Respondents.
Hannan & Black Law Group, attorneys for appellant (Mark D. Hannan, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Arupa Barua, Deputy Attorney General, on the brief). Respondent Kohl's Department Stores, Inc., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Leone. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 400,271. Hannan & Black Law Group, attorneys for appellant (Mark D. Hannan, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Arupa Barua, Deputy Attorney General, on the brief). Respondent Kohl's Department Stores, Inc., has not filed a brief. PER CURIAM
Claimant Gina Lang appeals from the decision of the Board of Review (Board), affirming the denial by the Appeals Tribunal (Tribunal) of unemployment benefits on account of claimant's discharge for severe misconduct. We affirm.
I.
Claimant worked as a supervisor for Kohl's Department Stores, Inc. (Kohl's) starting in 2003, and received an employee handbook stating Kohl's attendance policy. On September 13, 2011, Kohl's issued an initial written warning to claimant for chronic lateness. Kohl's issued a final written warning on March 19, 2012. Along with her final warning, claimant received a copy of Kohl's attendance policy, and was advised that additional incidents of tardiness would result in her termination.
Despite these warnings, claimant was late a total of twenty-eight times between January 2012 and her termination on August 8, 2012. On August 7, 2012, claimant arrived at work nineteen minutes late because of her childcare responsibilities. She was terminated the next day, and subsequently filed a claim for unemployment benefits.
On August 30, 2012, a deputy claims examiner determined that claimant was disqualified for benefits under N.J.S.A. 43:21-5(b) because she was discharged from employment for severe misconduct connected with the work. Claimant appealed to the Tribunal, which held a telephonic hearing.
After hearing the testimony of claimant and Michael Jenkins, her store manager, the Tribunal affirmed the denial of unemployment benefits. Adopting the Tribunal's findings of fact and opinion, the Board affirmed on August 7, 2013. Claimant appeals.
II.
We must hew to our "limited" standard of review. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the 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. "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. Our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009).
Claimant 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, 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. N.J.S.A. 43:21-5(b)(2007)(amended 2010); Silver v. Bd. of Review, Dep't of Labor, 430 N.J. Super. 44, 48 (App. Div. 2013) (tracing the evolution of the statute). Misconduct results in an eight-week disqualification from unemployment benefits. N.J.S.A. 43:21-5(b). Gross misconduct requires "an act punishable as a crime" and results in complete disqualification for benefits. Ibid.
N.J.S.A. 43:21-5(b) was amended in 2010 to include an intermediate level of misconduct termed "severe misconduct." Ibid. Disqualification from benefits for severe misconduct remains in effect until the individual becomes reemployed, works at least four weeks, and reaches a certain earnings amount. Ibid. The statute does not comprehensibly define severe misconduct but provides examples, including "repeated violations of an employer's rule or policy, [and] repeated lateness or absences after a written warning by an employer." N.J.S.A. 43:21-5(b).
Before the amendment, court decisions and later a regulation provided that "'[f]or an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.'" Silver, supra, 430 N.J. Super. at 52-53 (quoting N.J.A.C. 12:17-10.2(a)). 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[.]" Id. at 55. Therefore, we construed the two examples of severe misconduct quoted above as requiring acts done "intentionally, deliberately, and with malice." Ibid. However, 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 Tribunal properly found that "[e]vidence gathered at the hearing established [Kohl's] made the claimant fully aware [of the attendance policy] via a written reprimand presented to her on 3/19/12 regarding her continuous attendance concerns and she failed to heed the warning." Claimant's subsequent incidents of lateness and her repetitive violations of that policy justified a reasonable inference that her disregard of the attendance policy was intentional, deliberate, and thus in that sense malicious.
Claimant makes several arguments in defense of her tardiness. She first argues that Kohl's understood and accepted her family situation. However, Jenkins testified that he and the claimant "had multiple conversations about attendance in the past," that claimant had received two written warnings concerning her attendance problems, and that she was informed "future violations could cause her termination." The Tribunal properly found that claimant "had received all pertinent information regarding [Kohl's] policy and procedure" and rejected claimant's testimony.
Claimant additionally argues that she always called to inform her employer when she would be late. However, Jenkins testified and the employee handbook stated that each episode of lateness remained an attendance violation even if an employee called in beforehand.
Jenkins testified that the attendance policy was followed, and so according to the employee handbook, there were at least five occurrences of tardiness each between the initial written warning, the final warning, and claimant's termination.
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Second, claimant argues that she was fired based on the company handbook rule allowing only a five-minute grace period for tardiness, but that her worksite routinely enforced a different ten-minute rule. Both parties agreed that tardiness of up to ten minutes was tolerated at claimant's worksite and that this practice modified the five-minute policy set forth in the handbook. However, Jenkins testified that claimant punched in on a time clock, and that before each disciplinary action he had reviewed the resulting records to make sure they showed lateness of ten minutes or more. The Tribunal properly found claimant "reported to work late at least twenty-eight times."
Third, claimant argues she was not fired for lateness, but actually because she expressed her intent to complain to the district manager regarding a problem unrelated to attendance, that she was having with her direct supervisor. However, Jenkins testified that he had not been aware of claimant's intention to speak with the district manager at the time he terminated her employment. The Tribunal found both that "claimant's belief cannot be supported with facts," thus it "carries no weight," and that claimant was "discharged from the job because she reported late to the workplace."
Claimant also argues it was incongruous to fire her for tardiness just three weeks after she was allegedly promoted. However, Jenkins testified that claimant had not actually been promoted, but merely "changed roles within [her] job." Based on the evidence, the Tribunal was reasonable in concluding that claimant's termination was for chronic attendance problems.
Finally, claimant argues that Kohl's attendance policy was being selectively enforced against her. However, the Tribunal rejected her argument as irrelevant. Further, Jenkins testified that "the policy we were following in this case is the same policy we have followed with other associates throughout the store." The Tribunal reasonably found that claimant's chronic lateness could not be excused by the attendance of other employees.
We give "'due regard to the opportunity of the one who heard the witnesses to judge [] their credibility.'" Makutoff v. Bd. of Review, 427 N.J. Super. 218, 223 (App. Div. 2012) (quoting In re Taylor, 158 N.J. 644, 656 (1999)). Having found the employer's reasoning credible, the Tribunal's decision and the Board's affirmance were supported by sufficient credible evidence in the record. N.J.S.A. 43:21-5(b) clearly indicates that after a written warning, repeated lateness from work constitutes severe misconduct and thereby disqualifies an individual from receiving unemployment benefits. We see no basis in the record to overturn the Board's decision.
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION