ERIC LACKLAND VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3578-16T1
ERIC LACKLAND,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR and ADVOSERV OF
NEW JERSEY, INC.,
Respondents.
_________________________________
Argued August 14, 2018 – Decided September 4, 2018
Before Judges Sumners and Gilson.
On appeal from the Board of Review, Department
of Labor, Docket No. 093,683.
Eric Lackland, appellant, argued the cause pro
se.
Emily M. Bisnauth, Deputy Attorney General,
argued the cause for respondent Board of
Review (Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Emily M.
Bisnauth, on the brief).
Respondent AdvoServ of New Jersey, Inc. has
not filed a brief.
PER CURIAM
Appellant Eric Lackland failed to telephonically appear for
his hearing before the Appeals Tribunal (Tribunal), which resulted
in a decision disqualifying him from receiving unemployment
benefits because he was discharged for severe misconduct. Lackland
appealed to the Board of Review (Board), which issued a final
agency decision that he failed to demonstrate good cause for not
appearing at the Tribunal's hearing or requesting an adjournment.
We affirm.
In October 2009, AdvoServ of New Jersey, Inc., which provides
residential care for developmentally disabled persons and sex
offenders, hired Lackland as a full-time community living
specialist. In May 2016, Lackland was terminated for taking a
resident out of the facility without permission and for repeatedly
failing to follow instructions. He subsequently filed for
unemployment benefits. The Deputy Director determined at a fact-
finding interview – in which AdvoServ did not appear – that
Lackland was eligible for benefits. AdvoServ appealed to the
Tribunal contending that it was not notified of the fact-finding
interview and that Lackland was terminated for severe misconduct
connected with the work.
A Notice of Telephone Hearing for AdvoServ's appeal was mailed
to the parties. At the hearing, AdvoServ's representative
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testified that appellant refused to follow instructions by taking
a resident out into the community against orders, was disrespectful
towards his supervisors, and had been written-up in the past for
similar problems. Lackland, however, failed to call-in for the
hearing or request a postponement. The Tribunal subsequently
reversed the Deputy's decision, determining that Lackland was
discharged for severe misconduct connected with the work as defined
by N.J.S.A. 43:21-5(b). The Tribunal found that Lackland
repeatedly failed to comply with his supervisor's directions,
caused a commotion, and had been issued a prior warning for similar
conduct in the past.
Lackland appealed to the Board, claiming that he did "not
agree with the [Tribunal's] determination." The Board denied the
appeal, determining:
Since [Lackland] was given the opportunity to
appear at the Appeal Tribunal hearing and as
good cause for failing to appear or request
an adjournment has not been presented, there
is no valid ground for a further hearing.
On the basis of the record below, we agree
with [the] decision reached.
Before us, Lackland admits he received notice of the hearing,
but claims he misunderstood the directions by believing that the
Tribunal hearing examiner would call him. He also contends his
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employer falsely claimed that he took residents out of the facility
without permission, and that his employer falsified paperwork.
The scope of our review of an administrative agency's final
determination is strictly limited. Brady v. Bd. of Review, 152
N.J. 197, 210 (1997). The agency's decision may not be disturbed
unless shown to be arbitrary, capricious, or unreasonable. Ibid.Therefore, "[i]f the Board's factual findings are supported 'by
sufficient credible evidence, courts are obliged to accept them.'"
Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
N.J.S.A. 43:21-5(b) provides that a person is disqualified
for benefits if he or she is discharged for misconduct connected
with the work. Misconduct is defined as "a deliberate violation
of the employer's rules or a disregard of the standards of behavior
which the employer has a right to expect." Silver v. Bd. of
Review, 430 N.J. Super. 44, 53 (App. Div. 2013) (citing Beaunit
Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div.
1956)). Such conduct must be "improper, intentional, connected
with the work, malicious, and within the employee's control."
Ibid. N.J.S.A. 43:21-5(b) provides an enhanced penalty for
individuals discharged for "severe misconduct." Examples of such
misconduct include "repeated violations of an employer's rule or
policy." Silver, 430 N.J. Super. at 54.
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We conclude the record supports the Board's finding that
Lackland did not have good cause for not appearing at the
Tribunal's telephonic hearing and that he committed severe
misconduct by continued violation of his employer's rules by
failing to follow his supervisor's directions despite a prior
warning. Hence, he has not shown that the Board violated express
or implied legislative policies, or acted arbitrarily,
capriciously, or unreasonably, in finding that appellant was
disqualified from receiving unemployment benefits.
Affirmed.
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