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Upadhyay v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2010

PAARU UPADHYAY, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND MARRIOTT SENIOR LIVING SERVICES, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 186,488.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2010

Before Judges Graves and Newman.

Claimant Paaru Upadhyay appeals from the final decision of the Board of Review, which affirmed the decision of the Appeal Tribunal, denying unemployment compensation benefits to claimant from March 23, 2008 to May 3, 2008, on the ground that claimant was discharged for misconduct connected with her work. We now affirm.

Claimant was employed by Marriott Senior Living Services, Inc., as a certified medical assistant from February 12, 2004 to March 26, 2008. She was terminated for failing to properly note patients' medication records in the MARS logbook. The logbook is a medication record required by State law in which medical assistants and technicians are required to document all medication which is administered to patients.

In terminating claimant from her employment, the Appeal Tribunal made the following findings:

In this matter, the claimant contends that she made a mistake and failed to follow company procedure because she was overwhelmed with work.

The evidence demonstrates that the claimant was aware of the company policy and received numerous warnings for committing the same act. Because this was not an isolated incident, it appears that the claimant had a history of this behavior and should have made adjustments to ensure that her behavior was not repeated.

The claimant's failure to comply with company policy jeopardized the employer's business and their adherence to government regulations. The claimant's reason for termination exhibits misconduct.

On appeal, claimant contends that she should not be disqualified for benefits because her workload was overwhelming and that led her to make these mistakes. She asserts that she told her supervisor that the workload was too much and no solution was found for her. She also claims to have an anonymous witness that can corroborate her version of the events.

Our review of a state agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not reverse an agency determination unless it is "arbitrary, capricious or unreasonable" or it is "not supported by substantial credible evidence in the record as a whole." Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985). We have to determine whether the agency decision is supported by substantial credible evidence and are obliged to accord deference to an administrative agency's fact-finding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

Our review of the record demonstrates that there is substantial credible evidence in the record to support the termination of claimant. The record shows that claimant was given a written warning for failing to follow policy and department rules on January 27 and 28, 2007. She was given a verbal warning on April 11, 2007, for failing to work in a cooperative manner when counting narcotics with another medication care manager. On March 24, 2008, she received a final warning for failure to follow department policy on March 17, 2008, noting that she "continues to leave blanks in MARS." The notice for termination of March 26, 2008 was for her failure to follow instructions that day.

The failure to properly complete the MARS logbook was significant. Medications given to each patient had to be properly documented because a patient could be over- or under-medicated. The failure to comply was the kind of misconduct that could result in termination from employment. N.J.S.A. 43:21-5(b). It is clear that this was a reasonable rule of the employer which claimant was made well-aware of. N.J.A.C. 12:17-10.6. She received a number of warnings for her misconduct and did not make the necessary adjustments to ensure that it was not repeated. This was especially troublesome because this was part of the State-mandated requirement relating to the keeping of medication records.

Claimant's contention that she was denied the opportunity to present an anonymous witness is without merit. The hearing examiner properly precluded testimony from someone whose identity would not be disclosed by claimant. The employer has a right to cross-examine such a witness. See generally Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986). By not divulging the identity, regardless of why that would not be done, would deprive the employer of the due process rights to which it is entitled.

The decision denying unemployment compensation benefits is affirmed.

20100122

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