ANGELIQUE KIRKMAN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3174-17T2
ANGELIQUE KIRKMAN,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR and
SPRINT/UNITED MANAGEMENT
COMPANY,
Respondents.
Submitted January 14, 2019 – Decided February 8, 2019
Before Judges Fasciale and Rose.
On appeal from the Board of Review, Department of
Labor and Workforce Development, Docket No.
110,411.
Angelique Kirkman, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Aaron J. Creuz,
Deputy Attorney General, on the brief).
Respondent Sprint/United Management Company has
not filed a brief.
PER CURIAM
Angelique Kirkman appeals from a final determination by the New Jersey
Department of Labor and Workforce Development (DOLWD), Board of Review
(Board), disqualifying her from receiving unemployment benefits pursuant to
N.J.S.A. 43:21-5(b), because she was terminated by her employer, Sprint/United
Management Company (Sprint), for "severe misconduct connected with the
work." We affirm.
We glean the salient facts and procedural history from the record before
the Board. Kirkman was employed by Sprint from August 2016 until January 5,
2017, when she was terminated for violating Sprint's time and attendance policy.
Kirkman filed a claim for unemployment benefits on January 1, 2017. The
Division of Unemployment and Disability Insurance denied her application on
the ground that Kirkman was discharged for "severe misconduct connected with
the work."
On February 1, 2017, Kirkman filed an appeal. On April 12, 2017, an
Appeal Tribunal held a telephonic hearing, during which Kirkman and Rodrigo
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Nunez, a market manager at Sprint and Kirkman's former supervisor, testified. 1
Following the hearing, the Appeal Tribunal reversed the Division's decision,
finding "no evidence of wanton or willful misconduct, and [as such] no
disqualification ar[ose] under N.J.S.A. 43:21-5(b)." Sprint timely appealed from
that decision and on June 5, 2017, the Board reversed the Appeal Tribunal's
decision and imposed a refund.
Apparently, the Board's decision was not sent to Kirkman's then current
address. Because she was unable to participate in the October 13, 2017 hearing
challenging the refund, the Appeal Tribunal postponed the hearing without
prejudice.
On December 18, 2017, the Board reopened the matter, "set aside its prior
decision, and reviewed the matter on the record below." Although the Board
offered Kirkman an opportunity to respond to her employer's appeal, she "did
not offer anything on appeal to the Board . . . to cause the Board . . . to change
its legal conclusion."
1
A witness on behalf of Kirkman was also present at the telephonic hearing,
but did not testify.
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3
In its de novo review, the Board adopted the Appeal Tribunal's findings
of fact, which summarized the testimony from the April 12, 2017 hearing as
follows:
In November 2016, [Kirkman] was issued a
written warning for her tardiness[. S]he explained that
she was constantly late due to personal circumstances.
She had just relocated to New York, and it was a very
lengthy commute to New Jersey. As a result of her
situation, the employer changed her work schedule
from a 10[ a.m.] arrival to an 11[ a.m.] arrival.
[Kirkman] was issued a final warning indicting that she
needed to report to work timely. [Kirkman] also
requested a transfer, but she later discovered that
management had not submitted her request.
During the week of 12/15/2016, [Kirkman] was
late each day that she was scheduled to work which
totaled approximately an hour. She notified her
manager through text message that she was late, not
[sic] she was subsequently terminated for chronic
lateness.
However, the Board again disagreed with the Appeal Tribunal's April 12,
2017 decision that Kirkman's chronic tardiness was justifiable in light of her
hour-long commute to work after she relocated. In particular, the Board found
Sprint accommodated Kirkman by adjusting her hours, but Kirkman continued
to arrive late. Further, her tardiness continued after receiving written
reprimands. Accordingly, the Board reversed the Appeal Tribunal's decision
and affirmed its own prior decision. This appeal followed.
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On appeal, Kirkman argues her lateness was not "a wanton and willful act
of disregard of [Sprint's] interest, nor a deliberate violation of [its] rules."
Rather, she contends she acted with "good intent" by seeking a transfer to a
location closer to her residence, and by recommending that Sprint hire another
worker at her location. Kirkman also claims Sprint failed to pay her work hours;
always called her supervisor when she was late; and, for the first time on appeal,
she contends she never received a company handbook setting forth Sprint's
attendance policies. In her reply brief, Kirkman claims the Board did not
acknowledge "the relocation was due to an emergency." 2
Our scope of review of an agency decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579
(1980)). In challenging an agency conclusion, the claimant carries a substantial
burden of persuasion, and the determination of the administrative agency carries
a presumption of correctness. Gloucester Cty. Welfare Bd. v. N.J. Civil Serv.
2
Kirkman also raises issues in her reply brief, such as, she did not have a set
schedule, that were not raised in her merits brief. An issue that is not addressed
in a party's initial merits brief is deemed to be waived. See Drinker Biddle &
Reath LLP v. N.J. Dept. of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5
(App. Div. 2011). It is improper for a party to use a reply brief to raise an issue
for the first time or enlarge the main argument. See State v. Smith, 55 N.J. 476,
488 (1970); L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J.
Super. 60, 87 (App. Div. 2014).
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Comm'n, 93 N.J. 384, 390-91 (1983); McGowan v. N.J. State Parole Bd., 347
N.J. Super. 544, 563 (App. Div. 2002). We also accord substantial deference to
the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ.
of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).
Further, "[w]e are obliged to defer to the Board [of Review] when its
factual findings are based on sufficient credible evidence in the record."
Lourdes Med. Ctr. of Burlington Cty. v. Bd. of Review, 197 N.J. 339, 367 (2009)
(internal quotation marks omitted). We overturn an agency determination only
if it is arbitrary, capricious, unreasonable, unsupported by substantial credible
evidence as a whole, or inconsistent with the enabling statute or legislative
policy. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997).
The Unemployment Compensation Law, N.J.S.A. 43:21-1 to -71,
expresses the legislative intent that benefits be paid only to those who have
become unemployed through no fault of their own, and the Board is obligated
to preserve the fund "against claims by those not intended to share in its
benefits." Brady, 152 N.J. at 212 (quoting Yardville Supply Co. v. Bd. of
Review, 114 N.J. 371, 374 (1989)). Therefore, the statute sets forth penalties
for individuals who have been discharged for misconduct, with the degree of
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penalty varying according to the level of misconduct. See Silver v. Bd. of
Review, 430 N.J. Super. 44, 54 (App. Div. 2013).
N.J.S.A. 43:21-5 governs disqualification for unemployment benefits.
Under the version of the statute in effect at the time of Kirkman's
disqualification, 3 subsection (b) of the statute provided examples of "severe
misconduct connected with the work." Pertinent to this appeal, "repeated
lateness . . . after a written warning by an employer" was a specific example of
severe misconduct under N.J.S.A. 43:21-5(b).
Pursuant to regulation, severe misconduct was defined as "an act which
(1) constitutes 'simple misconduct,' as that term is defined in this section; (2) is
both deliberate and malicious; and (3) is not 'gross misconduct.'" N.J.A.C.
12:17-2.1.4 In Silver, we construed severe misconduct based on repeated
3
We recognize N.J.S.A. 43:21-5(b) was amended on August 24, 2018,
eliminating "severe misconduct." However, because Kirkman applied for
unemployment benefits before the 2018 amendment was enacted, and the
Legislature was silent as to retroactivity, the former version of N.J.S.A. 43:21-
5(b) applies here. See Maeker v. Ross, 219 N.J. 565, 581 (2014) (recognizing
the Legislature must clearly intend for a statute to be applied retroactively).
4
In May 2017, we invalidated the DOLWD's definition of "simple misconduct"
as arbitrary and capricious without prejudice to the agency's adoption of a
substitute regulation in conformance with the regulatory scheme. In re N.J.A.C.
12:17:2.1, 450 N.J. Super. 152 (App. Div. 2017). Kirkman applied for
unemployment benefits before our decision was issued and, as noted above,
before N.J.S.A. 43:21-5(b) was amended.
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lateness or absences after a written warning "as requiring acts done
intentionally, deliberately, and with malice." 430 N.J. Super. at 55. Further, we
understood "'intentional' and 'malicious' as used in the regulation to include
deliberate disregard of the employer's rules or policies, or deliberate disregard
of the standards of behavior that the employer has the right to expect of an
employee." Id. at 56.
Kirkman's claims lack merit. For example, we have held that excusable
absences, such as family emergencies, "do not constitute 'deliberate violation[s]
of the employer's rules, . . . or . . . an intentional and substantial disregard . . .
of the employee's duties and obligations to the employer[,]'" and therefore do
not constitute even simple misconduct. Parks v. Bd. of Review, 405 N.J. Super.
252, 256 (App. Div. 2009) (first three alterations in original) (quoting Beaunit
Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956)).
However, this case is not similar to Parks, where we found all of the absences
were due to family emergencies. Ibid. Rather, the Board was entitled to infer
from Kirkman's repeated absences, especially after she had been issued written
warnings, that she was deliberately indifferent to her employer's policies.
Given our deferential standard of review, we have no basis to interfere
with the Board's determination to disqualify Kirkman from unemployment
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benefits for "severe misconduct connected with [her] work" based on her pattern
of excessive tardiness. During her six-month employment, Sprint
accommodated Kirkman's relocation by adjusting her hours. Nonetheless,
Kirkman repeatedly arrived late to work. Further, as noted, Kirkman twice
received written notice of her chronic tardiness, but continued her late arrivals.
Because Kirkman committed those violations repeatedly, despite her
employer's warnings, her actions rose to the level of severe misconduct under
the statute. Silver, 430 N.J. Super. at 55-56. We therefore conclude, based on
our review of the record, that the Board properly characterized Kirkman's
chronic lateness as severe misconduct and disqualified her from benefits.
N.J.S.A. 43:21-5(b).
To the extent not otherwise addressed, Kirkman's remaining arguments
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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