On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 115,002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Remanded October 10, 2007
Resubmitted January 7, 2008
Before Judges Gilroy and Baxter.
In this appeal, Crystal Medical Billing (Crystal) challenges an October 3, 2006 Board of Review (Board) decision finding Crystal's former employee, Diana Nino, eligible for unemployment compensation benefits. Crystal argued that the Board's decision of October 3, 2006 should be reversed because it was not supported by substantial credible evidence in the record. Crystal further argued that Nino made prejudicial and inflammatory ex parte statements about Crystal to the hearing examiner after the hearing was closed and immediately after the employer's representative, Peyman Maghsoudolou, had left the room, thereby depriving Crystal of a fair hearing and necessitating a reversal. We directed a remand in order to develop a fuller record concerning those ex parte remarks. The remand has been completed. We now consider the appeal in its entirety and affirm.
Diana Nino was hired at Crystal Medical Billing in May 2005 as a "biller" in its medical claims department. Crystal terminated Nino on May 8, 2006, claiming that her work was unsatisfactory. She filed a claim for unemployment compensation benefits, and her claim was denied by a claims examiner, who determined that her poor work performance rendered her ineligible. Nino appealed, and a hearing before the Appeal Tribunal was conducted on June 28, 2006.
At that hearing, Nino testified that she had been discharged not because of poor work performance, but because she was pregnant and fell behind in her work due to illness, including a three-day hospitalization in April 2006 during the early part of her pregnancy. Maghsoudolou testified that Nino failed to follow instructions that required her to make additional efforts to collect funds owed to Crystal's clients. He asserted that the problems with Nino's work had commenced as early as November 2005, four months before she became pregnant in March 2006. Maghsoudolou testified that Crystal terminated Nino only after she failed to reduce her backlog of work, and that the termination was because of her poor work performance, not because she was pregnant.
During the June 28, 2006 hearing, Maghsoudolou attempted to show the hearing examiner his reports to verify that the problems with Nino's work commenced as early as November 2005. The hearing officer did not inquire of Maghsoudolou whether he wanted to introduce the reports into evidence, and the hearing officer did not examine the reports. Maghsoudolou acknowledged during his testimony that despite Nino's poor work performance that began in November 2005, he did not make any effort to discuss the problem with her until March 28, 2006. Maghsoudolou testified that when Nino's work had not improved in April, he terminated her on May 8, 2006. At the end of the hearing and after the record was closed, the following colloquy occurred between Nino and the hearing examiner:
CLAIMANT: You [know] what's the funny part, that we billed for the OBGYN and then when I lost the baby, Peyman gave me my job back.
When I went on disability the 24th of May that the doctor (inaudible). He says Diana I don't need the (inaudible), I'm going to give you your job back when you finish your pregnancy and complete your disability till your done. He found out the baby died the same day and then he tells me you know since you're no longer pregnant, see what ...