Opinion
DOCKET NO. A-5343-12T1
09-24-2014
HALIMAH PELL, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ONLINE RESOURCES & COMMUNICATIONS CORPORATION, Respondents.
Halimah Pell, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Online Resources & Communications Corporation has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Rothstadt. On appeal from the Board of Review, Department of Labor, Docket No. 416,697. Halimah Pell, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Respondent Online Resources & Communications Corporation has not filed a brief. PER CURIAM
Halimah Pell appeals from the final decision of the Board of Review ("the Board") that determined she was disqualified for unemployment benefits. The record reveals that Pell was employed by Online Resources ("Online") from August 1, 2011 until January 15, 2013, when she was terminated for repeated tardiness after having received two written warnings. During her testimony before the Appeals Tribunal (the "Tribunal"), Pell acknowledged that she had difficulty arriving at 6:45 a.m., the start of her shift, because she had given birth to twins in August 2012 and was unable to arrange child care. Her mother, who was to watch the children, became ill, and Pell was unable to find adequate alternatives.
Pell also acknowledged that Online served her with a written warning regarding her tardiness in December 2012, and a final written warning on January 8, 2013. On January 15, because she had to take care of her children, Pell did not arrive at work until 7:15 a.m., one-half hour after her designated start time and fifteen minutes beyond the grace period accorded by her employer.
The Deputy Director of the Department of Labor and Workforce Development found Pell was disqualified for benefits having been discharged for severe misconduct connected with her work. See N.J.S.A. 43:21-5(b) ("An individual shall be disqualified for benefits . . . for severe misconduct connected with the work . . . ."). On appeal, the Tribunal determined that Pell "had been advised and [was] aware of the company's attendance policy upon hire," received a "final written warning for repeated lateness" on January 8, 2013, and reported to work one-half hour late on January 15 because she was "attending to her children." The Tribunal concluded that Pell was disqualified for severe misconduct pursuant to N.J.S.A. 43:21-5(b).
Pell appealed to the Board. In its final decision mailed on May 29, 2013, the Board affirmed the Tribunal's decision, and this appeal followed.
Pell contends that her employer discriminated against her by failing to accommodate her request for a schedule change, noting that a fellow employee was so accommodated. We have considered the argument in light of the record and applicable legal standards. We affirm.
Our "capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted). "'[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 obliged to accept them." Ibid. (quotation omitted); see Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's action was "arbitrary, capricious, or unreasonable" should it be disturbed. Ibid. Although "we are not bound by the agency's interpretation of a statute or its determination of a strictly legal issue," "[o]rdinarily, [we] give[] substantial deference to the agency's interpretation of the statute it is charged with enforcing." Lourdes Med. Center of Burlington C'nty v. Bd. of Review, 197 N.J. 339, 361 (2009) (citations omitted).
"The 2010 amendment to N.J.S.A. 43:21-5(b) added a new severe misconduct provision, placed between the paragraphs dealing with simple misconduct and gross misconduct." Silver v. Bd. of Review, 430 N.J. Super. 44, 53 (App. Div. 2013). The amendment contained several examples of disqualifying "severe misconduct," one of which is an employee's "repeated lateness or absences after a written warning by an employer." Id. at 54 (quoting N.J.S.A. 43:21-5(b)). In Silver, we construed this example of severe misconduct as requiring "acts done intentionally, deliberately, and with malice." Id. at 55.
In her testimony before the Tribunal, Pell acknowledged that she had been "tardy" "ever since [she] came back from having" her children. The Tribunal specifically found that Pell's repeated tardiness after receiving prior written warnings was a "willful and deliberate disregard of the standards of behavior the employer had a right to expect . . . ." Compare Silver, supra, 430 N.J. Super. at 57 (noting the factual findings of the Tribunal, affirmed by the Board, did "not include a finding of intentional or deliberate conduct or malicious intent"). Although the Tribunal did not specifically find Pell acted with "malicious intent," we said in Silver that "[t]he repetitive violation of a rule, policy, or standard of conduct may justify a reasonable inference that the employee's disregard was deliberate and in that sense malicious." Ibid.
We find the specific arguments raised by Pell lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). Before the Tribunal, Pell testified that her employer asked if she was willing to move to the 4 p.m. to 11 p.m. shift at work. Pell responded by saying, "I don't know." She admitted to the Tribunal, however, that, "I don't think I would've [done] [four] to [eleven] . . . ."
The appellate record contains copies of work schedules Pell claims in her brief demonstrate that the shift of another employee, "Mike," was changed as an accommodation to him. This argument was never raised before the Tribunal or the Board, and this particular evidence was never produced. We therefore refuse to consider it. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our 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 . . . .") (citation omitted). Even if the argument had been raised, however, it fails to rebut the undisputed and admitted evidence that Pell was, unfortunately, unable to meet her employer's needs. We are sympathetic to the demands and pressures Pell faced as a single parent trying to raise her children and maintain her job. Nevertheless, the Board's actions were not arbitrary, capricious or unreasonable. We therefore affirm.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION