Opinion
DOCKET NO. A-2132-11T3
03-06-2013
TERRELL D. RUSSELL, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and WORK FORCE DEVELOPMENT, and NEW JERSEY TRANSIT BUS OPERATIONS, Respondents.
William B. Hildebrand, attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lisa N. Lackay, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Board of Review, Department of Labor, Docket No. 325,276.
William B. Hildebrand, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lisa N. Lackay, Deputy Attorney General, on the brief).
Respondent New Jersey Transit Bus Operations has not filed a brief. PER CURIAM
Terrell D. Russell appeals from a final agency decision by the Board of Review, Department of Labor and Work Force Development, concluding that he is ineligible to receive unemployment benefits. The primary question is whether Russell's repeated lateness or absences from work, after receiving written warnings by his employer, constitute severe misconduct pursuant to N.J.S.A. 43:21-5(b). We conclude that they do on these facts and affirm.
New Jersey Transit Bus Operations (NJT) employed Russell as a cleaner from August 2007 to January 2011. NJT discharged Russell for violating a company attendance policy and Russell then filed his claim for unemployment benefits. In March 2011, a Deputy Director for the Division of Unemployment Insurance determined that Russell was disqualified for benefits due to severe misconduct, pursuant to N.J.S.A. 43:21-5(b). Russell then appealed to an Appeal Tribunal.
In May 2011, the Appeal Tribunal conducted a telephonic hearing. The examiner listened to testimony from Fred Zacks, NJT's superintendent of maintenance, and Russell. Zacks testified that NJT used a point system to monitor its employees' attendance. He explained that each employee is entitled to accumulate up to twenty points per calendar year before being discharged. Zacks asserted that before discharging Russell, NJT issued different levels of warnings to Russell throughout the year for violating the policy. Russell had nineteen points for the 2010 calendar year and reached his twentieth point when he arrived late on December 31, 2010. NJT terminated Russell on January 4, 2011.
In accordance with NJT's attendance policy, Russell received the following warnings for lateness and absenteeism: a "counseling memo" when he reached six points; a written warning at eight points; a one-day suspension at ten points; a three-day suspension at thirteen points; a five-day suspension at sixteen points; and a ten-day suspension at nineteen points.
Russell testified at the hearing that he was generally late to work because of child care issues. He indicated that he had to watch his five-year-old niece and his thirteen-year-old brother until Russell's mother returned from her job's night-shift to relieve him. He stated that "I have to wait until [our mother arrives] . . . to get the kids and get them ready for school and things like that." He testified that this was "one of the main reasons" for his lateness. Russell admitted that he received the warnings throughout the year and never explained to NJT the reasons for his repeated lateness.
The Appeal Tribunal upheld the Deputy's determination that Russell was ineligible to receive unemployment benefits and stated that
[Russell] was discharged for repeated lateness and absenteeism. [Russell] had received written warning[s] and suspensionsHe then appealed to the Board. In November 2011, the Board issued its final decision agreeing with the Appeal Tribunal, and disqualified him from receiving the benefits.
for absenteeism and lateness. . . . [Russell's] habitual absenteeism and lateness[] was a disregard of standards of behavior . . . . [Russell's] repeated behavior, after warnings, rises to the level of severe misconduct . . . .
[Russell] is [therefore] disqualified for benefits under N.J.S.A. 43:21-5(b).
On appeal, Russell focuses on the events that occurred on the day he received his twentieth point. He argues that his tardiness to work on December 31, 2010, "was caused by circumstances and conditions beyond his control." Russell contends that the Appeal Tribunal erred by disqualifying him for benefits due to severe misconduct because his lateness was not his fault, but rather was the result of an "unexpected[]" family emergency. Russell maintains that the Board's decision is unreasonable.
The burden of proof rests upon Russell to establish his right to unemployment compensation, see Brady v. Bd. of Review, 152 N.J. 197, 218 (1997), and our review of agency determinations is limited, In re Stallworth, 208 N.J. 182, 194 (2011); In re Taylor, 158 N.J. 644, 656 (1999). We defer to such decisions, unless they are found to be arbitrary, capricious, or unsupported by substantial credible evidence in the record as a whole. Russo v. Bd. of Trs., Police & Fire Retirement Sys., 206 N.J. 14, 27 (2011); In re Carter, 191 N.J. 474, 482 (2007). If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber-stamp an agency's decision. Taylor, supra, 158 N.J. at 657.
In support of his argument that his lateness was occasioned by a family emergency and therefore did not constitute severe misconduct, Russell relies primarily on our opinion in Parks v. Board of Review, 405 N.J. Super. 252 (App. Div. 2009). In Parks, the employee missed work three times because she and her son were ill, and then she notified her employer that she was unable to attend work on a fourth occasion because her four-year-old niece was dropped off unexpectedly due to a family emergency. Id. at 255. We concluded that the employee's absences from work did not constitute "misconduct" within the meaning of N.J.S.A. 43:21-5(b). Id. at 256. Here, there is no documented proof that Russell experienced a family emergency. Russell simply offered that "one of the main reasons" for his lateness was that he had to wait for his mother to return from work to relieve him of his babysitting obligations. The mother's delayed arrivals at Russell's home were a recurring problem, which Russell failed to resolve by making other arrangements. Russell's reliance on Parks, therefore, is factually distinguishable. Moreover, Parks is not dispositive because there we analyzed the statute before the Legislature amended it to included the category of "severe misconduct," and specifically defined that term to encompass situations of an employee's chronic lateness.
In July 2010, the Legislature amended N.J.S.A. 43:21-5(b) by providing that an employee engaging in severe misconduct is disqualified for unemployment benefits and listing examples of what constitutes severe misconduct. The amended statute reads, in part, that an individual "shall be disqualified for benefits"
[f]or the week in which the individual has been suspended or discharged for severe misconduct connected with the work . . . . Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer . . . .
[N.J.S.A. 43:21-5(b) (emphasis added).]
"Our paramount goal in interpreting a statute is to give effect to the Legislature's intent." Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). To do so, "courts begin with the language of the statute." In re Kollman, 210 N.J. 557, 568 (2012). Statutory words gain their meaning and significance by reading them within the context of the legislation as a whole. See DiProspero v. Penn, 183 N.J. 477, 492 (2005). We discern from a plain reading of the text of N.J.S.A. 43:21-5(b) that repeated lateness or absences from work, after an employer issues a written warning, constitute severe misconduct and thereby disqualifies an individual from receiving unemployment benefits. Here, the text of the amendment is clear, and its importance is evident in light of the well-recognized purpose of the New Jersey Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -56.
The mission of the Act is "to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989) (citing N.J.S.A. 43:21-2). Our Supreme Court explained that "the primary purpose of the Act is to provide a cushion for the workers of New Jersey against the shocks and rigors of unemployment." Brady, supra, 152 N.J. at 212 (internal quotation marks omitted). We liberally construe the Act in favor of claimants to effectuate its remedial purposes, Yardville, supra, 114 N.J. at 374; however, our Court has emphasized that "[t]he basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases," Brady, supra, 152 N.J. at 212 (internal quotation marks omitted).
The legislative history supports our interpretation of the statute. On March 16, 2010, the Legislature introduced Senate Bill 1813 ("S.1813"), which sought to reduce unemployment insurance tax rates that would be imposed on employers during fiscal year 2011. S.1813 (Mar. 16, 2010). In its original form, S.1813 did not include a severe misconduct category, permitting disqualification of individuals from receiving unemployment benefits. Ibid. In June 2010, Governor Chris Christie issued a conditional veto of S.1813. Governor Christie, Conditional Veto of S.1813 (June 2010). In Governor Christie's conditional veto, he stated:
There is a broad consensus that the current statutory framework for our treatment of misconduct cases is not in line with the practices of a majority of other states. Under the current statutory structure about [ninety] percent of the misconduct cases have the same penalty without regard to the individual's level of misconduct. This treatment is not balanced. I am advised that by redefining "misconduct" by carving out a "severe misconduct" tier, as well as creating a more proportional unemployment benefit penalty structure, the individuals seeking unemployment insurance would beThereafter, the Legislature amended S.1813 to include the severe misconduct category, see L. 2010, c. 37, and adopted the Governor's proposed language contained in his conditional veto that "repeated lateness or absences after a written warning by an employer" constitute severe misconduct.
treated more equitably, and the Unemployment Insurance Trust Fund would realize a significant savings each year.
[Id. at 2.]
Here, the Legislature defined severe misconduct and Russell's excessive lateness and absences under these circumstances meet that definition. As a result, there is substantial credible evidence in the record to support the Board's decision to uphold the Appeal Tribunal's determination that Russell engaged in severe misconduct. We therefore conclude that the Board's decision that Russell was ineligible to receive unemployment benefits was not arbitrary, capricious, or unreasonable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION