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Lewis v. Board of Review


February 18, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 202,831. Melva Lewis, appellant, argued the cause pro se.

Per curiam.


Argued: November 12, 2009

Before Judges C.L. Miniman and Waugh.

Appellant Melva Lewis appeals from final agency action of the Board of Review, Department of Labor (the Board), affirming the decision of the Appeal Tribunal, which concluded that Lewis was disqualified for benefits from August 31 through October 11, 2008, on the ground that she was discharged for misconduct connected with the work. We affirm.

Genevieve Rumore, Director of Nursing for the McCarrick Care Center, Inc., testified that Lewis was hired on September 4, 2007, as a Certified Nursing Assistant (CNA). She was discharged from employment on September 4, 2008, for insubordination in refusing to do a job that her supervisor, Kathy Cerebe, required her to do. The incident occurred on September 2 when Lewis refused to walk a resident to the lunchroom. Lewis stated, "I am not walking that person," and walked away from Cerebe. The resident was a "one assist for transfer and ambulation," presumably meaning that she required one person to assist her. Lewis stated, "Not with me. She is too hard." Cerebe suggested that Lewis ask another CNA for assistance, and Lewis replied, "Not with me. I am not walking her." Cerebe then sent Lewis home, suspending her for insubordination, and notified Rumore of the incident. A phlebotomist from St. Peters University overheard this discussion.

Lewis immediately went to see Rumore rather than leave the facility. Before speaking with her, Rumore learned that Lewis had refused to change her assignment at 7:10 a.m. that day when the nurse on the floor wanted to change the CNA assignments. Lewis told another nursing supervisor that, when she worked in the other assignment, it took her a week to recuperate. Additionally, Rumore learned that on Sunday, August 31, Lewis refused to work the next day on the second floor, where late-stage dementia patients reside, and stated that if the night nursing supervisor did not get someone to switch assignments, she would not work on Monday. Irene Wyochetick, the Assistant Director of Nursing and Employee Health Nurse, told Rumore there was nothing in Lewis's medical file that would prevent her from being able to work full duty.

Rumore then met with Lewis and Wyochetick on September 2 at about 11:15 a.m. Lewis denied refusing to walk the resident in question. She denied threatening to call out sick on Monday if she did not get the assignment she wanted. Lewis complained that when she worked on the second floor, she "aches all over for days afterwards" and that all the staff did so as well. Lewis then begged for her job, saying she needed to pay her bills. Rumore said she needed employees who want to work and told her to go home, saying that she would call her back after speaking with the Administration. On September 3, Rumore gave Lewis an appointment for September 4.

Rumore explained that the CNAs work for the entire nursing facility, not just one floor or the other, and that the employer needed to be able to move employees around the facility as needed. The resident in question weighed 152 pounds and "there is no reason why if she was having a hard time if the person was a one person transfer, that she couldn't have asked somebody else to help her walk the person."

Rumore testified that Lewis had been given prior warnings. In April 2008 she received a verbal warning about failing to give residents baths. On May 8, 2008, she was given a final written warning for insubordination because she had been yelling at Cerebe and the Assistant Director of Nursing after they told her to be quiet in the PEP Program where she had been speaking in a raised voice. That is a program for end-stage dementia patients where the lights are dimmed, the doors are closed, quiet music is played, and soft stimulation, such as hand rubbing, is given to the patients. She had also been criticized in May for failing to comply with facility policy that all staff speak English. Lewis was given a three-day suspension at that time.

Lewis contradicted portions of Rumore's testimony. She denied that she refused to walk the resident. She explained that she needed the assistance of another CNA to get that resi- dent out of bed that morning and into a wheelchair. She was taking her out of her room at 10:10 a.m. when she saw Cerebe and the phlebotomist at the front desk. Cerebe told Lewis that she had to walk the resident and Lewis replied, "no not me Kathy. She gave me a hard way--it took me and Alicia to put her in a chair." Lewis testified that Cerebe said she could get another CNA to help Lewis put the resident in the dining room because "everyone have to be in the dining room by 11:00." She then went to look for another CNA down the other corridors, but everyone was busy and she had to wait. She then assisted another resident and again unsuccessfully looked for help. When her door watch time came, she saw that the resident was no longer where she left her. Lewis claimed the resident was bigger than her and she could not lift her by herself. When she was asked if she reported to Cerebe that she could not find help, Lewis seemingly contradicted herself by testifying, "When I came from each corridor, [Cerebe] was no longer there nor the resident was no longer there." She did not ask anyone where the resident had gone. When Lewis went to the lunchroom, Cerebe told her to punch out, and she was writing her up for insubordination.

Next, Lewis denied that she had received a written warning on May 8. Rather, she claimed, "There was all verbal abuse to me in a room with three people yelling at me about my religion."

She admitted, however, that she was suspended and told to go home. She claimed that she was told, "if your boss tell you to do something, you better jump and you better ask how high." She admitted she was told that she could not pray in another language. She felt her rights were violated, but made no complaints to the Human Resource Department.

Lewis also denied ever saying that she would not work the second floor, although she admitted there was nothing in her file saying that she was not capable of working both floors. She claimed that she never hid that she had a cervical spine and neck injury, but also claimed that she told them when she was hired that she could not lift heavy residents. She admitted she never presented her employer with any medical documentation of this injury.

After Lewis testified, Rumore explained that Cerebe had another CNA walk the resident to the lunchroom and that the resident remained a one-person transfer.

The appeal examiner made written findings of fact and conclusions of law. Specifically, she found:

On 09/02/08 the claimant was instructed by her supervisor to walk a resident to the dining room. The claimant put the resident into a wheel chair and left the resident outside of the dining room. The claimant left the resident because she was trying to find another aide to assist her. The claimant did not notify her supervisor that she left the patient.

Relying on N.J.S.A. 43:21-5 and N.J.A.C. 12:17-10.6, the appeals examiner concluded:

In this case walking the resident was within the claimant scope of her customary job duties. Her not completing the task and failure to notify her supervisor of a problem, after being warned prior, which was the cause of her discharge constitutes insubordination. Therefore, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 08/31/08 through 10/11/08 as the discharge was for misconduct connected with the work.

Lewis timely appealed this determination to the Board. The Board reviewed the record, found that Lewis had been given a full and impartial hearing and a complete opportunity to offer any and all evidence she wished to present. It found that there was no valid ground for a further hearing and affirmed the Appeal Tribunal on the record below. This appeal followed.

Lewis contends she had never been given any written or verbal warnings about being insubordinate related to her job description of patient care. As a result, she contends she should not have been disqualified from benefits.

Appellate courts have a limited role in reviewing the decisions of administrative agencies. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Courts will not reverse an agency decision 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) (quoting Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 391 (1983)). In deciding whether an agency ruling is supported by substantial, credible evidence, we are obligated to accord deference to administrative agency fact-finding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). If we find sufficient credible competent evidence in the record to support the agency's conclusion, then we must uphold the agency's findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 29 (1981).

Thus, an administrative agency's decision may be disturbed only where it can be demonstrated that its decision is arbitrary or capricious, unsupported in the record, or in violation of express or implicit legislative policies. N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978). In Worthington v. Fauver, 88 N.J. 183 (1982), the Court stated:

"Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of circumstances. Where there is room for two opinions, action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." [Id. at 204-05 (quoting Bayshore Sewerage Co. v. Dep't Envtl. Prot., 122 N.J. Super. 184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)).]

The New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, provides that an individual seeking unemployment benefits is disqualified "[f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period), as determined in each case." N.J.S.A. 43:21-5(b).

While the statute does not define misconduct, "[w]e attempted to define the abstract term" over a half-century ago:

Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be [1] an act of wanton or willful disregard of the employer's interest, [2] a deliberate violation of the employer's rules, [3] a disregard of standards of behavior which the employer has the right to expect of his employee, or [4] negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or [5] show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. [Emphasis supplied.]

[Smith v. Bd. of Review, 281 N.J. Super. 426, 430-31 (App. Div. 1995) (quoting Beaunit Mills v. Div. of Employment Sec., 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)).]

Action or inaction constituting misconduct must be willful, deliberate or intentional. Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979). A single act of misconduct is sufficient. Smith, supra, 281 N.J. Super. at 431.

In this case, the record provides clear support for the Board's conclusion that Lewis is disqualified for benefits. The examiner was entitled to find the employer's testimony credible. Although Lewis disputes Rumore's concerns about her performance, the examiner was entitled to credit them and we must uphold the Board's determination. Clowes, supra, 109 N.J. at 587.



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