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Smith v. Board of Review


April 30, 2008


On appeal from the Board of Review, Department of Labor, Docket No. 117,423.

Per curiam.


Submitted April 16, 2008

Before Judges Cuff and Lisa.

Appellant, Sandra Smith, appeals from a final decision of the Board of Review (Board) issued on February 13, 2007, affirming a decision of the Appeal Tribunal issued on November 2, 2006, which disqualified appellant for benefits from April 30, 2006 through June 10, 2006 because she was discharged for misconduct connected with the work, see N.J.S.A. 43:21-5(b), and ordering her to refund $2525 in benefits paid. Appellant argues (1) the Board used the wrong standard of review and improperly considered and evaluated the evidence, and (2) appellant should not be required to refund benefits because of hardship. The second argument is not properly before us, because appellant is required to seek an administrative remedy for waiver of the refund obligation based upon hardship before judicial review is appropriate. See N.J.A.C. 12:17-14.2(a). In her appellate brief, appellant states that "[s]he is going to make such an application to the Department of Labor." We reject appellant's first argument. Accordingly, we affirm the Board's decision.

Appellant's employer, ACS State & Local Solutions (ACS), administers the EZ Pass program. Appellant worked for ACS for more than two years at an EZ Pass call center as a violations clerk. She interacted with the public by telephone. The misconduct for which appellant was terminated consisted of two incidents, in which appellant hung up on customers. The incidents came to light through random monitoring of calls by ACS's quality assurance personnel.

On April 26, 2006, she placed a customer on hold for two minutes, then switched from hold to mute for eight minutes. During that time, according to ACS, "the customer kept saying hello, hello, hello and [appellant] never picked it up again." The customer finally hung up after eight minutes on mute. ACS considers that a hang up because the employee taking the call is required by company policy to periodically get back to the customer to apprise the customer of the status of the inquiry. The second incident occurred on April 27, 2006. After placing a customer on hold, appellant engaged the release button, disconnecting the call.

With respect to the eight-minute hold on April 26, 2006, appellant contended that work conditions made the delay necessary, because she had to leave her work station to go to a monitor to obtain information required to respond to the caller.

Regarding the April 27, 2006 call, company policy provided that calls could be released only with the authorization of a team leader. Appellant acknowledged this and said she had no recollection of releasing any calls during that timeframe. The monitor said she did not hear any authorization from a team leader while listening to the call. Further, it is possible to hit the release button by mistake. However, the buttons are designed in a manner to avoid such mistakes. Thus, appellant contended that if there was a released call she either hit the button by mistake or it was on authorization from a team leader. The Appeal Tribunal and Board specifically found that she did not mistakenly release the call on April 27, 2006 but did so intentionally.

The employer's human resources manager testified that "[a]ll employees receive disciplinary training and the sign off if they had taken that training and one of the things that they are trained is that in no instance whatsoever, is any customer ever hung up, that will be grounds for immediate termination of employment." Thus, according to that witness, employees such as appellant are on notice that they will be immediately terminated for violation of that ACS policy, and a number of employees have been terminated on that basis.

Appellant argues that the evidence did not support the Board's finding that she committed the transgressions of which she was accused, and, even if she did, they do not meet the legal definition of misconduct for unemployment insurance purposes.

Our standard of review of an agency determination is very limited. We will not upset the determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that the findings on which the decision was based were not supported by substantial credible evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The Appeal Tribunal found that the testimony of the employer's representatives was more credible than appellant's, thus establishing that she "hung up on customers without completing the calls twice in a two-day period." The Board made the same finding based on its review of the record. Upon judicial review, we are required to give due regard to the ability of the factfinder in an administrative proceeding to judge credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The record supports the findings made here, and we have no occasion to interfere. We are also satisfied that the record establishes misconduct by appellant. See Borowinski v. Bd. of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (disqualifying misconduct includes "a deliberate violation of the employer's rules").



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