Opinion
DOCKET NO. A-0440-13T3
03-18-2015
SUSANNE M. MARTIN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ANDREWS ENTERPRISES, INC., t/a A-1 PLUMBING HEATING AND AIR CONDITIONING, Respondents.
Susanne M. Martin, appellant, argued the cause pro se. Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ernest Bongiovanni, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Board of Review, Department of Labor, Docket No. 428,431. Susanne M. Martin, appellant, argued the cause pro se. Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ernest Bongiovanni, Deputy Attorney General, on the brief). PER CURIAM
Susanne M. Martin appeals from the final agency decision of the Board of Review (the Board), denying her claim to unemployment benefits. We affirm.
Martin filed a claim for unemployment benefits effective May 12, 2013. The Deputy Director of the Division of Unemployment and Disability Insurance determined she was ineligible for benefits from May 5, 2013. Martin appealed. We derive the following facts from the hearing conducted by the Appeal Tribunal.
Martin worked as an office administrator for respondent Andrews Enterprises, t/a A-1 Plumbing, Heating and Air Conditioning (A-1) from November 4, 2010, until May 6, 2013. Her responsibilities included dispatching service technicians to a new service call after releasing them from their prior service call. On May 6, 2013, Martin dispatched technicians to a new job site, where the client had cancelled the work order, before the work was completed at the site where they were located.
Kim Ashton, an office manager at A-1, testified that when one of the owners of A-1 asked Martin about this error, Martin said she did not know she had to confirm work was completed before releasing a technician for another job. Ashton stated the owner said, "[N]o Sue[,] you need to go home and think about what you just said to me because what you're saying[,] it doesn't make sense. You know this is our procedure." Ashton said Martin left and never returned to work.
Martin sent an email two days later asking that her paycheck be mailed to her on the following pay week. Martin did not contact her employer in the week that followed. Ashton sent an email, dated May 13, 2013, which stated:
Hi Sue,Ashton maintained that the employer did not intend to terminate Martin's employment; the employer sent her home because she was frustrated with Martin's saying that she did not know how to do her job. She stated Martin never came to get her paycheck.
According to the Employee Hand Book, page 4, paragraph two: A Co-worker who fails to report to work for up to three (3) consecutively scheduled days and fails to notify his / her supervisor in advance of the reason for the failure to report to work, will be considered to have resigned his / her position with the company. Your pay check can be picked up at the office Monday - Friday 8:00 am to 5:00 pm with the return of your key fob & location of all your files.
Thank You
Kim Ashton
Martin testified the owner told her the technicians are to call the office for clearance before they go to the next job. She told her employer she disagreed that this was the accepted procedure. Martin stated the owner told her to "go home and think about what you said and when you realize your [sic] wrong you can come back."
Martin admitted she did not return to work after this, and, on May 8, 2013, she sent an email to her employer stating "Please mail out my latest pay check. Thanks. Have a good day. Bye. Sue."
Martin contended she had received an email on May 3 stating her job was being terminated for not writing up calls correctly in the Florida office. When questioned by the Appeals Examiner as to why she worked on May 6, she replied, "Because they never told me I wasn't terminated." In her opinion, she was terminated. However, she also testified that on May 6, the owner told her to go home and to come back when she realized she was wrong. Martin testified she would have returned to work if her employer called, but she did not return voluntarily because she did not feel she was wrong.
The Notice of Determination stated Martin was disqualified from receiving unemployment benefits because she left work voluntarily. Following the hearing, the Appeal Tribunal also concluded she was disqualified from benefits pursuant to N.J.S.A. 43:21-5(a), because she left work voluntarily without good cause attributable to the work. The Tribunal stated,
[T]he fact that the claimant believed she was terminated from the job regarding a comment made by the owner about a situation that happened three days prior is not reasonable. The claimant was not under threat of being terminated and voluntarily left her job when she failed to report back to work after the owner sent her home to think about the situation that occurred on 5/6/13.
Martin appealed the decision of the Appeal Tribunal. The Board affirmed.
In this appeal, Martin argues she should not have been disqualified for benefits because her employment was terminated on May 3, 2013, when the employer emailed her about employees recording phone calls incorrectly. She also claims she was terminated three days later, when she was told to go home and think about the mistake she made. Martin asserts that she had more seniority than other employees and knew her position was in jeopardy when her employer previously asked her to work a later shift. We disagree.
Our review of a final decision of an administrative agency is limited. Barrick v. State, 218 N.J. 247, 260 (2014); Circus Liquors, Inc. v. Governing Body of Middletown, 199 N.J. 1, 9 (2009). We must sustain the agency's action "unless the agency's decision is shown to have been 'arbitrary, capricious, or unreasonable, or [] not supported by substantial evidence in the records as a whole.'" Barrick, supra, 218 N.J. at 259 (quoting In re Stallworth, 208 N.J. 182, 194 (2011) (alteration in original)). Furthermore, an appellate court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); R.S. v. Div. of Med. Assistance & Health Servs., 434 N.J. Super. 250, 274 (App. Div. 2014). Although strictly legal issues are reviewed without such deference, we will usually "defer to matters that lie within the special competence of an administrative tribunal." Balagun v. N.J. Dep't of Corrs., 361 N.J. Super. 199, 202 (App. Div. 2003); see also Twp. Pharmacy v. Div. of Med. Assistance & Health Servs., 432 N.J. Super. 273, 284 (App. Div. 2013).
An applicant is disqualified for unemployment benefits when that "individual has left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). N.J.A.C. 12:17-9.1(b) defines good cause as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment."
Martin's contention that an email sent on May 3 constituted a termination of her employment lacks merit. She admitted that she worked thereafter and her employer's parting words on May 6 were only to go home to think and to return to work after she realized she was wrong. In short, Martin was free to return to work after May 6 but chose not to do so. The Board's conclusion that Martin voluntarily left her employment without good cause attributable to the work is amply supported by the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION