Opinion
DOCKET NO. A-6142-12T2
04-08-2015
JENNIFER RODGERS, Appellant, v. BOARD OF REVIEW AND BANCROFT NEUROHEALTH, Respondents.
Jennifer Rodgers, appellant, pro se. John Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from the Board of Review, Department of Labor, Docket #408,880. Jennifer Rodgers, appellant, pro se. John Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). PER CURIAM
Appellant Jennifer Rodgers appeals from a final decision of the Board of Review holding that she was disqualified to receive unemployment benefits because she was discharged for severe misconduct connected to her work under N.J.S.A. 43:21-5(b). She argues that the decision of the Board is not supported by substantial evidence. We disagree and affirm.
Rodgers was employed as a senior program associate for Bancroft Neurohealth (Bancroft), a non-profit provider of programs for individuals with disabilities. The programs are provided through structured daily care and community living facilities. On October 23, 2012, she was assigned by Bancroft to a group home to facilitate employment training of individuals who worked and resided there.
On that date, Rodgers observed a hearing impaired client act impatiently and begin what has been described as "skin picking," a behavior in which an individual scratches herself and literally picks at her skin. To address this behavior, Rodgers ordered the individual to raise her hands over her head and when the individual tried to lower her arms, Rodgers responded by pushing the individual's hands back into position over her head.
This process continued over several minutes until the client began to cry. At that point, another Bancroft employee intervened, and the client hugged the intervening employee, crying on her shoulder. Rodgers' actions had caused the client to break down and was characterized by Bancroft as abuse because it was a painful and strenuous physical punishment. Physical abuse or mistreatment of clients are terminable offenses at Bancroft.
Bancroft's treatment plans do not permit workers to employ punitive measures to correct the behavior of clients, but prescribe other measures to address such behavior. Rodgers was discharged by Bancroft on November 20, 2012, and subsequently applied for unemployment benefits. Bancroft opposed the application. The Board, after considering the record before the Appeal Tribunal, determined that Rodgers' actions constituted deliberate and malicious physical and psychological abuse of the client, and disqualified her for benefits because her discharge arose from severe misconduct connected with her work. N.J.S.A. 43:21-5(b).
On appeal, Rodgers argues that the Board's determination was arbitrary and capricious and unsupported by sufficient credible evidence in the record. She denies the events described by Bancroft's witnesses, and avers that her evidence before the Appeal Tribunal was more credible.
When reviewing an agency decision, an appellate court must determine whether sufficient credible evidence exists in the record from which the findings made could reasonably have been drawn. In re Taylor, 158 N.J. 644, 656 (1999). This review must encompass the "proofs as a whole" and must take into account "the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 598 (1965). The burden of proof is upon Rodgers to establish her entitlement to unemployment compensation. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997).
N.J.S.A. 43:21-5(b) identifies three categories of misconduct connected with the work that result in disqualification for unemployment benefits: misconduct, severe misconduct and gross misconduct. "Severe misconduct" was added to N.J.S.A. 43:21-5(b) as a new misconduct provision by amendment in 2010. Although the statute does not define this term, it provides examples of misconduct that the Legislature intended to include within that provision:
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, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.
[N. J.S.A. 43:21-5(b).]
N.J.A.C. 12:17-10.2(a) defines misconduct as an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." Accord Silver v. Bd. of Review, 430 N.J. Super. 44, 52-53 (App. Div. 2013); Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957).
In Silver, supra, we construed these examples "as requiring acts done intentionally, deliberately, and with malice[,]" and stated we understood intentional and malicious "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." 430 N.J. Super. at 55-56.
We owe deference to the hearing examiner's findings of fact and credibility assessments, which were thereafter adopted by the Board. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
In this case, Rodgers used her authority as a senior staff member at Bancroft to punish a disabled client she perceived to be misbehaving. Her acts were contrary to Bancroft's treatment plans and caused the client to suffer obvious pain and distress. Both the Board and the Appeal Tribunal found the testimony of Bancroft's witnesses to be credible. Deferring to this credibility determination, as we must, it is clear that Rodgers disregarded the standards Bancroft had the right to expect of her. We are therefore satisfied that the Board's determination that she was terminated for severe misconduct was supported by the credible evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION