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

• Court: New Jersey Superior Court Appellate Division
• Decided: September 4, 2018
• Docket: A-3578-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

2 A-3578-16T1 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

3 A-3578-16T1 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.

4 A-3578-16T1 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.

5 A-3578-16T1