Opinion
DOCKET NO. A-0618-14T2
12-09-2016
EKTA PATEL, Plaintiff-Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and NACA LOGISTICS INC., Defendants-Respondents.
Etka Patel, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Brad M. Reiter, Deputy Attorney General, on the brief). Respondent NACA Logistics, Inc., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Koblitz. On appeal from Board of Review, Department of Labor, Docket No. 00014390. Etka Patel, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Brad M. Reiter, Deputy Attorney General, on the brief). Respondent NACA Logistics, Inc., has not filed a brief. PER CURIAM
Ekta Patel appeals from the September 12, 2014 decision of the Board of Review (Board), as well as a March 4, 2015 denial of reconsideration, affirming a decision of the Appeal Tribunal that she was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work. We reverse and remand for a new hearing.
Although the appeal was filed prior to the request to reopen the decision, we understand the appeal to encompass that decision as it is properly included in the items comprising the record on appeal pursuant to Rule 2:5-4(b). --------
Patel was employed by NACA Logistics Inc. (NACA) as an import revenue management coordinator beginning on April 17, 2006. She earned $17.39 per hour in 2013 working on a full-time basis five days a week, Monday through Friday. Patel testified that her last day of work was November 27, 2013, when she left intending to begin her vacation, which was to last from December 3 until Friday, December 6. On December 9, Patel left a voice message for her manager, Brenda Ingenito, informing Ingenito that due to a family emergency she had to fly to India, would return in a week or two and would keep Ingenito informed. On December 23, 2013, Patel was feeling sick. She tried two times, unsuccessfully, to reach Ingenito by phone from India to tell her she would return to work in a few days. Patel then electronically messaged a coworker, asking her to give Ingenito the message.
The transcript of Patel's testimony is truncated due to portions where it is noted that the audiotape is "inaudible," sometimes because two people are talking simultaneously. Also at times the hearing examiner interrupted Patel, not allowing her to complete her testimony.
Ingenito testified that she never heard from Patel after December 9, and she therefore expected Patel to return to work by December 23 at the latest. Ingenito testified that she sent Patel an email, which Patel said she never received. NACA sent Patel a letter terminating her employment on December 30, which Patel did not receive until January 3, 2014 when she returned from India. At the time of the telephonic hearing before the Appeal Tribunal Patel was not asked to provide a copy of the electronic messages she sent her co-worker, and the hearing examiner cut Patel off when she was trying to testify about the messaging.
The Tribunal concluded that Patel made insufficient attempts to contact Ingenito and had therefore abandoned her employment pursuant to N.J.A.C. 12:17-9.11(a) and was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a) for leaving her job voluntarily without good cause attributable to her work.
N.J.A.C. 12:17-9.11(a) states:
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. Such job abandonment shall subject the employee to disqualification for benefits for voluntarily leaving work without good cause attributable to such work. For purposes of this section good cause means any situation over which the claimant did not have control and which was so compelling as to prevent the employee from notifying the employer of the absence.
In her appeal to the Board, Patel included a certification from her doctor in India. She also wrote:
I tried to contact my Manager and she was not reachable so I had to choose internet application (Viber) to send message, about me being unwell to travel.The Board affirmed, stating, "Since the appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing." After Patel's timely appeal, she then sought reconsideration, now represented by Legal Services of New Jersey. She submitted a certification explaining that her brother-in-law and father-in- law had died in a "road accident" and she had to fly to India. She subsequently became delayed in India due to a serious illness. Patel also submitted copies of the electronically messaged conversation between her and her "Team Lead" regarding her need to stay in India due to illness. She also argued that, given the NACA holiday schedule, five consecutive work days had not yet passed from December 23 to December 30, 2013, when Patel was terminated. In response the Board sent Patel a letter denying her request to reopen the decision.
Also in initial days of my vacation, my Team Lead . . . tried to get in touch with me for work related query on same internet application (Viber) and I was able to resolve her query. So now if I conveyed my message by same means to my Team Lead, who also confirmed that she will pass on the message to Manager, how is it possible that my Manager was not informed about my illness?
Our review of an administrative agency decision is limited. 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 [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." Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obligated to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). Only if the Board's "action was arbitrary, capricious, or unreasonable" should it be disturbed. Ibid.
We are constrained to reverse due to the arbitrary and unreasonable nature of the decision, because we are unable to conclude that Patel was afforded a full and impartial hearing with a complete opportunity to offer any and all evidence. The telephonic hearing appeared rushed and some of it was not able to be transcribed, and the hearing examiner interrupted and truncated Patel's testimony. We reverse and remand for a new hearing before another Appeals Examiner.
Reversed and remanded for further proceedings consistent with this opinion. 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