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Dolgoff v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 24, 2008

STEVEN DOLGOFF, APPELLANT,
v.
BOARD OF REVIEW AND WALGREEN EASTERN CO., INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 84,259.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges A. A. Rodríguez and Collester.

Following a final determination of the Board of Review, claimant Steven Dolgoff appeals from the denial of unemployment benefits for a six-week period as a result of his discharge by Walgreen Eastern Co., Inc. (Walgreens), for misconduct connected with the work.

Dolgoff is both a doctor of podiatry and a licensed pharmacist. On September 18, 2003, he was arrested by the Manalapan police for unlawful possession of Hydracodone, the generic name for the prescription pain medication Vicodin. After his arrest, he gave a voluntary statement to the police acknowledging receipt of 2500 Vicodin pills ordered by him from a medical supply house using his expired physician's license. He told the police he had been addicted to pain medication for twenty years and was taking about seventy-five pills a day. To satisfy the addiction, he ordered 500 pills each month for his own use.

The Board of Pharmacy was notified of Dolgoff's arrest, and he met with officials a month later in October 2003. The pharmacy board directed him to continue medical treatment for his addiction and to undergo urine testing for the next few months.

At the time of his arrest Dolgoff was working as a pharmacist for Eckerd Drugs. He applied for a pharmacist job with Walgreens after his arrest. On the written job application the question was asked whether "you have ever been convicted of a felony." Dolgoff spoke with his criminal attorney and was told that an arrest was not equivalent to a conviction. He then answered the question in the negative. Dolgoff was hired by Walgreens on or about October 11, 2003.

On August 23, 2004, Dolgoff entered a guilty plea to an accusation for violation of N.J.S.A. 2C:35-15(a)(3), possession of a controlled dangerous substance, in exchange for a plea recommendation by the prosecutor for enrollment in the pre-trial intervention program (PTI). At the plea hearing, Dolgoff told the judge that he understood he was pleading guilty to a third-degree narcotics offense. When asked for a factual basis, Dolgoff admitted that on September 18, 2003, he took possession of 2,500 Vicodin pills unlawfully and knew at the time that it was illegal. The judge agreed with the prosecutor's recommendation for PTI and also imposed a Drug Enforcement and Demand Reduction (DEDR) penalty of $1,000, which is required of every person who commits a third-degree narcotics offense. The plea agreement further provided that while the court would not suspend Dolgoff's pharmacy license, the prosecutor was legally obliged to notify the Board of Pharmacy of Dolgoff's guilty plea. The Board of Pharmacy did not revoke or suspend Dolgoff's license, and although it reported it was reviewing the status of his license to determine whether it would take any disciplinary action, nothing in this record indicates any further action by the Board of Pharmacy.

Dolgoff entered the PTI program on September 4, 2004, and continued treatment with a physician for his addiction as required. He completed the PTI program on September 4, 2005, and on that date the accusation to which he pleaded guilty was dismissed. As a result, he does not have a criminal record.

Dolgoff did not inform Walgreens of his arrest, his guilty plea, or his admission to and completion of the PTI program. He claimed the information was a "private health matter." But in June 2005, Walgreens received an anonymous report that Dolgoff had been arrested for obtaining and possessing Vicodin. Scott McMullen, Walgreens' Loss Prevention Supervisor, investigated and found that Dolgoff's pharmacist license was under review by the State Board of Pharmacy. When confronted with the information, Dolgoff acknowledged his arrest but maintained that because he was not "convicted of anything," he was not legally obliged to tell Walgreens about it. He also admitted that his license was under scrutiny by the State Board of Pharmacy and that he had to continue medical treatment including submission of urine samples. He further acknowledged the extent of his addiction and that he had used his expired license as a podiatrist to obtain the drugs.

After being confronted by McMullen and the Walgreens' store manager, claimant was terminated on June 21, 2005. A subsequent audit of the Walgreens store did not disclose any wrongdoing by Dolgoff during his employment. Dolgoff has since obtained another job as a pharmacist.

Dolgoff filed his claim for unemployment benefits on July 10, 2005. On August 1, 2005, a deputy director found him eligible for benefits because there was insufficient evidence that he had been discharged for violating a company rule. Walgreens appealed. A hearing was conducted on November 1, 2005, before the Appeal Tribunal at which time McMullen and another representative appeared on behalf of Walgreens. The Appeal Tribunal found that Dolgoff had been discharged for conduct connected with his work, reversed the deputy director's decision, and held that Dolgoff was disqualified for benefits under N.J.S.A. 43:21-5(b) for the six-week period from June 19 to July 30, 2005.

On November 5, 2005, Dolgoff appealed to the Board of Review, which remanded the case to the Appeal Tribunal. Another hearing took place on January 3, 2006, at which Dolgoff appeared with counsel and testified. Two days later the Appeal Tribunal again held that Dolgoff was disqualified for benefits under N.J.S.A. 43:21-5(b). Dolgoff again appealed to the Board of Review. On April 6, 2006, the Board of Review again remanded the matter to the Appeal Tribunal for a hearing on whether "the claimant violated the Pharmacist Code of Ethics."

On May 8, 2006, the Appeal Tribunal came to the same conclusion that Dolgoff had been discharged for misconduct connected with the work. The Appeal Tribunal found that when he was hired, Dolgoff read and signed the Walgreens Code of Conduct which stated that employees were expected to refrain from improper conduct, including the use, selling, or illegally obtaining drugs and emphasized the point by further stating that Walgreens "WILL NOT TOLERATE an illegal, unprofessional or unethical act by any employee, INCLUDING THE UNAUTHORIZED . . . POSSESSION . . . OF CONTROLLED SUBSTANCES." The Appeal Tribunal found that by withholding information from the employer about his arrest for illegally obtaining drugs through misuse of his medical credentials, Dolgoff deprived Walgreens of pertinent information that would have affected the hiring decision. The Appeal Tribunal also found that Dolgoff was not forthcoming in filling out his job application and knowingly disregarded the "standards of behavior, which the employer had a right to expect." Dolgoff again appealed to the Board of Review, but this time the Board affirmed the decision of the Appeal Tribunal.

The Board upheld the finding of the Appeal Tribunal that although Dolgoff's answer to the question on the job application was technically correct at the time, his failure to tell Walgreens of his arrest was an ethical violation and a violation of the Walgreens Pharmacy Code of Conduct, thereby depriving the employer of significant information for the decision whether or not to hire him as a pharmacist or continue his employment. The Board concluded that Dolgoff had been terminated for the misconduct of willfully disregarding the standards of behavior that Walgreens had a right to expect.

Dolgoff argues that there is no evidence that he engaged in misconduct within the meaning of N.J.S.A. 43:21-5(b) to justify disqualifying him for unemployment benefits. He underscores that he did not falsify information on his employment application by indicating that he had not been convicted of a felony. He argues that Walgreens could have inquired on its form as to whether an applicant had been arrested, but it did not do so. He asserts that Walgreens is responsible for its failure to ask more specific questions on its application, and that it cannot be considered misconduct when a job applicant does not volunteer information above and beyond correct responses to the questions on the job application.

Termination for misconduct relating to the work results in a temporary denial of benefits for a six-week period, after which the claimant is presumptively eligible for full unemployment benefits. N.J.S.A. 43:21-5(b); N.J.A.C. 12:17-10.1(a); Smith v. Bd. of Review, 281 N.J. Super. 426, 434 (App. Div. 1995) (noting that a claimant's statutory misconduct merely delays receipt of the first six weeks of his benefits). While there is no statutory definition of "misconduct," case law has held that an employee engages in disqualifying misconduct when he commits:

[A]n act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. [Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956).]

By this definition Dolgoff engaged in disqualifying misconduct. He is technically correct that when he filled out the employment application, he had not been convicted of a felony or crime. But it was less than one month earlier that he had been arrested and charged with indictable crimes for violation of the narcotics laws of this State. In his interview with the police he acknowledged his guilt not only to the unlawful receipt of narcotics on that date but also to the same activity for years. Absent his plea agreement recommending his admission into PTI, there is no doubt that he would have been indicted by a grand jury and convicted by plea or trial. Fortunately for him, PTI was an available option for a first offender. Although Dolgoff denied that he pleaded guilty to a narcotics offense, the record is clear that the court and prosecutor required a plea of guilty to an accusation charging the third-degree crime of possession of controlled dangerous substances as a condition for his admission into PTI. Indeed, the judge at the plea hearing specifically found that Dolgoff understood that he was pleading guilty and was subject to criminal punishment if he did not successfully complete the PTI program.

There is no doubt that Dolgoff was keenly aware that the disclosure of his arrest would be of importance to Walgreens in its decision to hire or not hire him as a pharmacist with access to controlled substances including Vicodin. The fact that he spoke with his criminal attorney to determine how to answer the question on the application underscores that he sought a technical or "legal" way to avoid being forthright to the employer. His actions clearly constituted a "willful disregard of the employer's interest, a deliberate violation of the employer's rules, [and] a disregard of standards of behavior which the employer has the right to expect of his employee." Beaunit Mills, supra, 43 N.J. Super. at 183.

Dolgoff further claims he was justified in not disclosing the information that he had been charged with violating the narcotics laws of this State because his addiction was a medical condition for which he obtained treatment. There is no doubt that drug addiction is a serious health and medical matter requiring professional intervention. However, Dolgoff was not terminated for his past addiction, but rather for his failure to disclose important and necessary information affecting Walgreens' decision to hire or not hire him and his failure to comply with the employer's Pharmacist Code of Conduct. Clearly, Dolgoff knew that the truth would put his hiring in jeopardy, and he sought to avoid it by filling out the application with an eye to shielding the truth.

Finally, Dolgoff argues that his temporary disqualification of unemployment benefits was proscribed by the New Jersey Law Against Discrimination (LAD). The argument has no merit since Dolgoff was not disqualified because he was a drug addict, but for misconduct connected to his employment.

Under our scope of review we will not disturb an agency's ruling unless it was arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In this instance the Board's decision was clearly supported by substantial evidence in the record.

Affirmed.

20080124

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