ALLAN MARAIN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2085-18T2
ALLAN MARAIN,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and YANIRYS M. PICHARDO,
Respondents.
____________________________
Argued March 2, 2020 – Decided April 8, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Board of Review, Department of
Labor, Docket No. 161,255.
Allan Marain, appellant, argued the cause pro se.
Andy Jong, Deputy Attorney General, argued the cause
for respondent Board of Review (Gurbir S. Grewal,
Attorney General, attorney; Sookie Bae, Assistant
Attorney General, of counsel; Andy Jong, on the brief).
Respondent Yanirys M. Pichardo has not filed a brief.
PER CURIAM
Allan Marain, the former employer of claimant Yanirys M. Pichardo,
appeals from a final determination made by the Board of Review (Board) of the
New Jersey Department of Labor and Work Force Development, Division of
Unemployment and Insurance Services (Department). The Board determined
Pichardo's separation from her employment with Marain was the result of her
misconduct under N.J.S.A. 43:21-5(b), rather than her voluntarily abandoning
her position under N.J.A.C. 12:17-9.11(a), for reasons unrelated to her
employment, which would have disqualified her from receiving any benefits,
see N.J.S.A. 43:21-5(a). The Board made its determination based upon its
Appeal Tribunal's finding that Pichardo was absent from her position with
Marain for a month and a half, and during that time, gave Marain multiple
excuses for her absence that she later admitted were untrue. According to the
Appeal Tribunal, when Pichardo admitted that her reasons for her being absent
were untrue, Marain terminated her employment.
On appeal, Marain argues that the Board failed to properly consider the
facts adduced at the hearing and abused its discretion in finding that he
discharged Pichardo, rather than that she abandoned her employment. We
reverse because we conclude that the Board's final determination constituted an
A-2085-18T2
2
abuse of its discretion as it was not supported by the evidence and was legally
incorrect.
The facts taken from the record are summarized as follows. Pichardo
began her employment with Marain as a legal assistant on May 22, 2017.
Beginning on June 25, 2018, Pichardo failed to report for work. From that date
through August 9, 2018, Pichardo repeatedly contacted Marain and gave him
numerous reasons why she could not come to work.
On August 12, 2018, Pichardo filed for unemployment benefits.
According to her application for benefits, Pichardo stated the reason for leaving
her employment was that she was concerned about a coworker's use of marijuana
while at work.1 The day after she filed her application for unemployment, she
asked Marain to meet with her.
On August 14, 2018, the parties met and during their discussion, Pichardo
admitted that contrary to the information she gave Marain during her absence,
she had only been hospitalized for one or two days during the month and a half
that she remained absent from her job. At the meeting, Pichardo expressed that
1
Although we were inexplicably not provided with a copy of her application in
either parties' appendix, the Board's counsel confirmed at oral argument the
reason stated by Pichardo in her application for leaving her job. Pichardo
reported that reason again in her ensuing appeal from the Department's initial
determination as discussed below.
A-2085-18T2
3
she would like to return to work and in response Marain stated "I have to let
[her] go." According to Marain, he could not allow her to return because of her
dishonesty, which caused him to no longer trust her.
On September 11, 2018, the Department responded to Pichardo's
application for unemployment benefits. In its response, the Department
indicated to her that she was "disqualified for benefits from [June 17, 2018] and
will continue to be disqualified until [she has] worked eight or more weeks in
employment and have earned at least ten times [her] weekly benefit rate."
According to the notice, the determination was based upon her having left work
voluntarily on June 22, 2018, and thereafter she told Marain that she was having
medical issues, but when asked about medical documentation, Pichardo
admitted to the employer on August 14, 2018 [that she
was] not having health issues. [Pichardo] stated to the
unemployment agent [she] had a major family issue
during July and August and upon further inquiry, [she]
admitted that was not true, [she] stopped going to work
to look for a full-time job.
The notice further stated that her "actions [were] evidence of [her]
intention to sever the employer-employee relationship. Therefore, [Pichardo]
quit [her] job voluntarily and without good cause attributable to the work."
Pichardo filed an appeal of the initial determination and again stated her
reason for leaving work was related to her concerns about her coworker using
A-2085-18T2
4
marijuana. In response to Pichardo's appeal, the matter was scheduled for a
telephonic hearing that was conducted by an Appeals Examiner on October 10,
2018.
At the telephonic hearing, the Appeals Examiner identified the issue to be
addressed as whether Pichardo voluntarily left her position with Marain,
"without good cause attributable to [her] work." Pichardo, Marain and the co-
worker testified at the hearing.
Pichardo admitted again that the information she provided to Marain that
she was absent from work due to hospitalization and health issues was untrue
except for approximately two days that she was hospitalized. While she was
out, she sent Marain texts every day, telling him she was sick, under medical
care at a hospital, or that she did not have childcare, but that she would return
the next day.
Throughout her testimony, Pichardo explained that she left work because
she was concerned about her coworker's alleged use of marijuana and her
periodic "mood swings." For that reason, she "quit the job," although she told
Marain that the reason she was leaving was because she "was sick" and never
told him about the coworker because she believed Marain would not "let [the
coworker] go." Pichardo also testified that even at their meeting on August 14,
A-2085-18T2
5
2018, she did not tell Marain that she wanted to leave her job because of the
coworker.
Marain confirmed that at the August 14, 2018 meeting Pichardo wanted
to come back to work but, as the Appeals Examiner described in her question to
him, he "let her go because . . . of her lying for [the] month she was out." At
that point, the Appeals Examiner stopped the proceedings to "add a potential
issue into [the] hearing; . . . discharge for misconduct," and explained to the
parties that if that was the reason for Pichardo's unemployment, she would be
entitled to benefits after six weeks of ineligibility. She then gave the parties an
opportunity to postpone the remainder of the hearing so that they could prepare
to address the added issue. Both parties declined, and the matter proceeded with
Marain confirming that he "discharged" Pichardo on August 14, 2018, denying
there was any issue about the coworker using marijuana and testifying that
Pichardo never raised the issue with him.
In her testimony, the coworker denied any marijuana use and confirmed
that she too received texts every day from Pichardo telling the coworker she was
hospitalized. Later, in response to the coworker's suggestion that Pichardo
secure medical documentation of her illness and treatment, Pichardo admitted
that she was only treated for not more than two days and provided no documents.
A-2085-18T2
6
The coworker also explained that she had loaned money to Pichardo, and when
it was not repaid, she reached out to Pichardo's brother to find out about getting
back her money, which caused Pichardo to become angry with her.
On redirect, Pichardo confirmed the loan and her need to repay the
coworker. She also confirmed the coworker's testimony that she was asked to
bring in medical documentation to confirm her absence, but she did not do so.
On October 17, 2018, the Appeals Examiner issued her decision. As
noted, the Appeals Examiner found that Pichardo had been employed by Marain,
she was absent from work from June 25, 2018 through August 9, 2018, provided
Marain with multiple excuses for her absence, and at the August 14, 2018
meeting "she admitted to the employer that she had lied to him about the
reason[s] for her absence[]. The employer no longer could trust [Pichardo] and
discharged her from her job as of [August 14, 2018]." The Appeals Examiner
then explained that N.J.S.A. 43:21-5(a) applied to individuals who left work
voluntarily without "good cause attributable to such work." According to the
Appeals Examiner, this provision did not apply because Marain discharged
Pichardo, therefore she "did not leave the job."
The Appeals Examiner turned to N.J.S.A. 43:21-5(b), which applies to
individuals who have "been suspended or discharged for misconduct connected
A-2085-18T2
7
with the work." The Appeals Examiner determined that Pichardo's dishonesty
and "providing false excuses for her absence[] . . . constitute[d] misconduct."
She also noted that because of her determination that Pichardo was discharged
for misconduct, her decision would "have an impact on the employer's liability
for benefit charges against its experience rating account."
Marain filed an appeal from the Appeal Tribunal's determination to the
Board on October 24, 2018. The Board issued its final determination on
December 10, 2018. In its decision, the Board stated that it carefully examined
the findings of facts made by the Appeal Tribunal, concluded that "[o]n the basis
of the record below [it] agree[d] with the decision reached," and affirmed the
Appeal Tribunal's determination. This appeal followed.
On appeal, Marain contends that the Board abused its discretion by
adopting the Appeal Tribunal's incorrect determination that Pichardo separated
from her employment because she was terminated for misconduct rather than
finding that she abandoned her position when she stayed out of work and
provided Marain with false reasons for her absence. We agree.
Our review of decisions by administrative agencies is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). For that reason, a party that challenges a
final agency decision carries a substantial burden of persuasion. Gloucester Cty.
A-2085-18T2
8
Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). "In order
to reverse an agency's judgment, an appellate court must find the agency's
decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by
substantial credible evidence in the record as a whole.'" In re Stallworth, 208
N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
"In reviewing a final agency decision, such as that of the Board . . . , we
defer to factfindings that are supported by sufficient credible evidence in the
record." McClain v. Bd. of Review, 237 N.J. 445, 456 (2019). "[I]f substantial
evidence supports the agency's decision, 'a court may not substitute its own
judgment for [that of] the agency's even though the court might have reached a
different result.'" In re Carter, 191 N.J. 474, 483 (2007) (quoting Greenwood v.
State Police Training Ctr., 127 N.J. 500, 513 (1992)).
In assessing whether the Board acted within the scope of its authority, we
consider:
(1) [W]hether the agency's decision offends the State or
Federal Constitution; (2) whether the agency's action
violates express or implied legislative policies; (3)
whether the record contains substantial evidence to
support the findings on which the agency based its
action; and (4) whether in applying the legislative
policies to the facts, the agency clearly erred in
reaching a conclusion that could not reasonably have
been made on a showing of the relevant facts.
A-2085-18T2
9
[Lourdes Med. Ctr. of Burlington Cty. v. Bd. of
Review, 197 N.J. 339, 360 (2009) (quoting Brady v.
Bd. of Review, 152 N.J. 197, 211 (1997)).]
When considering those factors, we must defer to the agency's "expertise
and superior knowledge of a particular field." In re Carter, 191 N.J. at 483(quoting Greenwood, 127 N.J. at 513). Furthermore, deference to an agency's
decision "is particularly appropriate" when the matter involves the interpretation
and application "of the [a]gency's own regulation[s]." R.S. v. Div. of Med.
Assistance & Health Servs., 434 N.J. Super. 250, 261 (App. Div. 2014) (quoting
I.L. v. N.J. Dep't of Human Servs., 389 N.J. Super. 354, 364 (App. Div. 2006)).
However, "we are 'in no way bound by the agency's interpretation of a
statute or its determination of a strictly legal issue.'" Utley v. Bd. of Review,
194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973)). "[A]lthough we accord some deference to the Board's
interpretation of the statutory scheme that the Legislature has entrusted it to
administer, we are not bound by an unreasonable or mistaken interpretation of
that scheme, particularly one that is contrary to legislative objectives."
McClain, 237 N.J. at 456.
Our decision is also guided by fundamental principles of law governing
unemployment compensation. "[T]he Unemployment Compensation Law 'is to
A-2085-18T2
10
be construed liberally in favor of allowance of benefits.'" Lord v. Bd. of Review,
425 N.J. Super. 187, 195 (App. Div. 2012) (quoting Utley, 194 N.J. at 543). Our
State's Unemployment Compensation Law, N.J.S.A. 43:21-1 to 24.30, is
primarily designed to lessen the impact of unemployment that befalls workers
without their fault. Brady, 152 N.J. at 212. "The public policy behind 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) (emphasis added); see also N.J.S.A. 43:21-2 (declaring public
interest in addressing the burden of "[i]nvoluntary unemployment"). Therefore,
a person who voluntarily quits or abandons work for personal reasons, rather
than for causes attributable to work, is ineligible for benefits.
Applying these principles, we conclude the Board's decision here was not
supported by substantial evidence and was based upon an unreasonable
interpretation of the law.
N.J.S.A. 43:21-5(a) provides that an individual is disqualified for
unemployment compensation benefits where that "individual has left work
voluntarily without good cause attributable to such work." In order to avoid
disqualification, a claimant must show she left work for "good cause attributable
to work." Brady, 152 N.J. at 218. "Good cause means 'cause sufficient to justify
A-2085-18T2
11
an employee's voluntarily leaving the ranks of the employed and joining the
ranks of the unemployed,' and the reasons for terminating employment 'must
meet the test of ordinary common sense and prudence.'" Heulitt v. Bd. of
Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (quoting Zielenski v. Bd. of
Review, 85 N.J. Super. 46, 53-54 (App. Div. 1964)).
Persons who leave work for personal reasons are not eligible for
unemployment benefits. Brady, 152 N.J. at 213. Rather,
the decision to leave employment must be compelled
by real, substantial and reasonable circumstances not
imaginary, trifling and whimsical ones. . . . [I]t is the
employee's responsibility to do what is necessary and
reasonable in order to remain employed.
[Domenico v. Bd. of Review, 192 N.J. Super. 284, 288
(App. Div. 1983) (citations omitted).].
Ultimately, "an employee's separation from employment" is voluntary if
"the decision whether to go or to stay lay at the time with the worker alone. "
Lord, 425 N.J. Super. at 191 (quoting Campbell Soup Co. v. Bd. of Review, 13
N.J. 431, 435 (1953)). "[T]he one who initiates that action which eventually
leads to the separation is the one who is responsible for breaking the employer -
employee relationship." Id. at 190.
An employee who abandons their position is "subject . . . to
disqualification for benefits for voluntarily leaving work without good cause
A-2085-18T2
12
attributable to such work." N.J.A.C. 12:17-9.11(a). The Department's
regulation defines abandonment to include "[a]n employee who is absent from
work for five or more consecutive workdays and who without good cause fails
to notify the employer of the reasons for his or her absence." Ibid.
Unlike abandonment of a position by an employee, termination for
misconduct requires that an employee be "suspended or discharged for
misconduct connected with the work." N.J.S.A. 43:21-5(b).2 While termination
for abandonment results in disqualification for benefits, discharge for
"misconduct" results in a six-week ineligibility period and is charged to the
employer's experience rating. Ibid.; see also Lord, 425 N.J. Super. at 195.
2
The statute defines "misconduct" as follows:
[C]onduct which is improper, intentional, connected
with the individual's work, within the individual's
control, not a good faith error of judgment or discretion,
and is either a deliberate refusal, without good cause,
to comply with the employer's lawful and reasonable
rules made known to the employee or a deliberate
disregard of standards of behavior the employer has a
reasonable right to expect, including reasonable safety
standards and reasonable standards for a workplace free
of drug and substance abuse.
[Ibid.]
A-2085-18T2
13
Applying the governing law and applicable regulation, we disagree with
the Board's interpretation that where an employee admittedly lies to her
employer about the reasons for his or her absence, the employee has met his or
her obligation to notify the employer under N.J.A.C. 12:17-9.11(a) so as to avoid
a finding of abandonment. Clearly, there is no difference between an employee
who does not notify the employer of their reason for having been absent for five
or more consecutive days and one who repeatedly lies about those reasons.
Moreover, under the circumstances here, where Pichardo actually filed for
benefits, claiming other reasons for her separation before Marain allegedly
discharged her, we cannot fathom how the Board could ignore that fact and
conclude that the employee had not abandoned her position because she later
met with Marain to see if he would hire her again.
We find no support for the Board's decision in the fact that the employer
told Pichardo he had "to let [her] go." As noted, when Marain said those words,
Pichardo had already been absent from work for an extended period and filed
for unemployment benefits. At best, Pichardo asked to meet with Marain to see
if she could get her job back. When he refused, she continued to pursue her
unemployment benefits by appealing the initial determination and arguing that
A-2085-18T2
14
the other employee's alleged marijuana use compelled her to leave her job,
which Pichardo admitted she never discussed with Marain.
The purpose of employment is to protect those who are confronted with
being "involuntary[ily] unemploy[ed]." Yardville Supply Co., 114 N.J. at 374.
To permit Pichardo to receive those benefits, even if delayed as provided for in
the case of discharge for misconduct, would be contrary to that policy to
"preserve the fund against claims by those not intended to share in its benefits. "
Ibid.Reversed.
A-2085-18T2
15