Opinion
DOCKET NO. A-4375-11T3
05-14-2014
DAVID KLEINSCHMIDT, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and FEDEX FREIGHT EAST, INC., Respondents.
Gilbert J. Stroming, II, argued the cause for appellant (Marshall L. Gates, attorney; David Kleinschmidt, on the pro se brief). Alan C. Stephens, 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. Stephens, on the brief). Respondent Fedex Freight East, Inc., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Haas.
On appeal from the Board of Review, Department of Labor, Docket No. 341,030.
Gilbert J. Stroming, II, argued the cause for appellant (Marshall L. Gates, attorney; David Kleinschmidt, on the pro se brief).
Alan C. Stephens, 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. Stephens, on the brief).
Respondent Fedex Freight East, Inc., has not filed a brief. PER CURIAM
Appellant David Kleinschmidt appeals from the February 28, 2012 final agency decision of the Board of Review, which deemed him ineligible for unemployment benefits, based upon the administrative determination that he was terminated from his job for severe misconduct. N.J.S.A. 43:21-5(b). We reverse and remand for the Board to consider whether the grounds for appellant's termination constituted severe misconduct under Silver v. Bd. of Review, 430 N.J. Super. 44 (App. Div. 2013).
We discern the following facts from the record. Appellant worked as a "city driver sales associate" for FedEx Freight East, Inc. (FedEx) from May 2006 until May 16, 2011, when he was suspended from employment. FedEx terminated him two days later.
According to FedEx's protocol, when a driver delivers a package to a customer, he or she is required to obtain a signature from the person who accepts the delivery, which is then entered into a computer by the driver. When a customer is not present to receive a package, the driver is required to call the FedEx dispatcher for instructions. If the customer has previously provided a letter to FedEx authorizing drivers to leave packages without the customer's signature, the dispatcher will advise the driver to leave the package. If there is no "letter on file," however, the dispatcher will call the customer to make an appointment for a future delivery. The driver then brings the package back to the FedEx facility for re-delivery on the new date.
Appellant's supervisor, Mike Snelson, testified that all drivers receive training concerning this protocol. He stated that FedEx stakes its reputation on delivering packages "on time, intact, [and] damage free" and that "we have a trust with our customers. We have a reputation with our customers." Snelson testified that the company would lose that trust if a driver failed to follow the protocol and signed a fictitious name on the delivery receipt instead of obtaining an authorized customer signature. FedEx also provides drivers with an employee handbook, which warns them that "[a]ny instance of falsification of a Company document or record shall subject the offending employee to possible termination."
Snelson testified that, on May 5, 2011, appellant was assigned to deliver a roll of carpet to a company. One hour after the delivery, the company representative called to complain that the carpet was damaged and had been simply left at the facility by the driver. FedEx's records showed that the receipt had a name written on it indicating that the customer had signed for the delivery, but the representative stated that no one at the company had signed for it.
Snelson called appellant to the office to discuss the matter. When questioned, appellant stated that he had followed the FedEx protocol. Snelson asked appellant to describe the individual who accepted the delivery and he replied that "a man of . . . Spanish ethnicity" signed for the package. After Snelson told appellant that the customer was asserting that the delivery had been recorded by a video camera, appellant admitted that he left the carpet in the facility and that he had signed a fictitious name on the receipt. Snelson stated that appellant explained that a former supervisor had told him that, when a customer is not available to sign for a package, he should sign a name on the receipt to avoid having FedEx hold the package rather than delivering it on a later date.
Snelson testified that "we were aware that [appellant] said that that is what the other past [managers] said but our issue was . . . the fact that [appellant] tried to hide it in the beginning and the honesty was the issue that we had with it." He also stated that "there [are] no circumstances whatsoever" under which a driver would be permitted to sign a fictitious name on a receipt instead of obtaining a valid customer signature. Snelson turned the matter over to the FedEx Human Resources department, which decided to terminate appellant's employment.
Appellant testified that he received training and a copy of the employee handbook when he was first employed as a driver. However, he stated that his five prior supervisors had always stressed the importance of completing the delivery rather than bringing packages back to the point of dispatch. Appellant asserted that, when the customer was not available, his former supervisors instructed him to leave the package "in a safe place" and fill in a name on the receipt. This was known at FedEx as putting a "name on the line." If the recipient's name was known, that person's name was to be used. If the name was not known, however, the supervisors told appellant to "make up a name and put it on the line." Appellant stated that Snelson had not told him to follow this procedure, but explained that Snelson "was new at the time."
Snelson had been a driver with FedEx for ten years until being promoted to the position of supervisor. He had supervised appellant for "five or six months" at the time of the May 5, 2011 incident.
Appellant testified that, when he arrived at the customer's facility on May 5, 2011 with the carpet, he found "their door was wide open." After going inside, appellant "walked around the whole place and nobody was there." He went to the "shipper's desk inside the building" and saw the name "Marono . . . on the shipper's tablet, his name plate." Appellant stated that the roll of caret "was intact, it was inside plastic, it had end caps, it was perfect." He left the carpet by "the shipper's desk inside the building safe and secure" and wrote the name "Marono" on the computer receipt.
Sometime after he made the delivery, appellant testified that a FedEx dispatcher called and asked him "'You got a name on the line' which is the code and I said, 'Yeah.' And he goes, 'Okay, no problem.'" Appellant stated that Snelson later asked him "did I make that delivery and I said, 'Yes.' And he said, 'Well, who signed for it?' and I said, 'Well there's a name on the line.' And I told him the name on the line is Marono." Appellant denied telling Snelson that a person "of Spanish ethnicity" actually signed the receipt. Instead, appellant told Snelson that he did "what we've done in the past and that is to put a name on the line." Appellant asserted that Snelson replied "'Well we don't do that anymore.'"
Appellant testified that, although his former supervisors told him that "if you bring back freight, as FedEx freight, you got a big problem[,]" he had never been formally reprimanded for doing so. Appellant stated that he had only put a fictitious name on a receipt "one other time."
Following his termination, appellant filed a claim for unemployment benefits. On June 17, 2011, a Deputy Director of the Division of Unemployment Insurance found appellant eligible for benefits without disqualification. FedEx appealed this determination to the Appeal Tribunal, which conducted a telephone hearing on August 26, 2011. After the hearing, the Tribunal reversed the Deputy Director's determination and held that appellant was disqualified for benefits because he had been terminated for "severe misconduct" under N.J.S.A. 43:21-5(b). The Tribunal stated:
The evidence presented indicates that [appellant] was discharged for signing a fictitious name indicating that a delivery was received and for misrepresenting the truth when questioned. [Appellant's] contention that previous supervisors condoned the behavior does not absolve [him] from complying with reasonable and known policies of the employer. In this case, [appellant] admitted that his own supervisor did not authorize the practice of signing a fictitious name when making deliveries.
It is not logical for an employer to require a signature when making a delivery and then authorize their employees to sign a fictitious name in the absence of the customer when establishing a reputation based on trust. In this case, [appellant] did not have prior authorization to leave the delivery without an appropriate signature and his failure to disclose this to the supervisor when initially questioned supports the conclusion that [he] was aware that he did not comply with the employer's policy. His actions in falsifying employer records and failing to be truthful when questioned rises to the level of severe misconduct in accordance with [N.J.S.A.] 43:21-5(b).
The Board of Review affirmed the Appeal Tribunal's decision on February 28, 2012. This appeal followed.
In reviewing this final agency decision, we give substantial deference to the Board of Review. Our main focus is whether the Board's determination was arbitrary, unreasonable, or capricious, or unsupported by the record. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). However, we may reject the Board's conclusions where they reflect a misapplication of the unemployment statutes and regulations. Silver, supra, 430 N.J. Super. at 58.
Until 2010, N.J.S.A. 43:21-5(b) identified two types of misconduct that prevented full receipt of unemployment benefits. "[G]ross misconduct" is "an act punishable as a crime" and results in a complete disqualification for benefits. Ibid. "[M]isconduct" is found where an employee's act is "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." N.J.A.C. 12:17-10.2(a). It results in an eight-week disqualification from unemployment benefits. N.J.S.A. 43:21-5(b).
We described this "two-prong standard" for misconduct 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. Misconduct must also be "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).
In 2010, an intermediate type of misconduct, "severe misconduct," was added to N.J.S.A. 43:21-5(b). L. 2010, c. 37, § 2, eff. July 1, 2010. An employee who has been discharged for severe misconduct is disqualified for unemployment benefits until he or she has been reemployed for at least four weeks and has earned at least six times the employee's weekly unemployment benefit rate. Ibid. The statute does not define "severe misconduct," but does provide examples, such as "repeated violations of an employer's rule or policy, . . . falsification of records," and other "behavior [which] is malicious and deliberate but is not considered gross misconduct as defined in" the statute. Ibid.
However, the threshold of culpability required for severe misconduct, which carries a more stringent disqualification for benefits, cannot be less than that for simple misconduct. Silver, supra, 430 N.J. Super. at 55. As we observed in Silver, the conduct given as examples under the severe misconduct statute requires the same finding of intent, deliberateness, and malice as simple misconduct. Id. at 55-56.
Here, the Board's decision failed to consider whether appellant's actions were intentional, deliberate, and malicious, the first prong of the Silver standard. We recognize that the Board made its determination prior to our decision in Silver, which clarified the standard of culpability required to support a finding of severe misconduct. Accordingly, we remand this case to the Board to reconsider its decision in light of the two-prong standard pronounced in Silver.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION