On appeal from Board of Review, Department of Labor and Workforce Development, Docket No. 317,048.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi and Fasciale.
Cleveland M. Regis appeals from an April 12, 2011 final agency decision rendered by the Board of Review, Department of Labor, concluding that he is disqualified to receive unemployment benefits. We vacate the decision, remand, and direct that further proceedings be conducted regarding the relationship between Regis and the decedent and the employer's policy on documentation of excused absences.
Regis worked as a shipping clerk for approximately five years. His
employer implemented an attendance point program (the program) to
discourage excessive absenteeism and, as a result, employees were
permitted up to ten points before being terminated. Pursuant to the
program, points were not assigned for funeral leave, provided that the
employee produced an obituary or death certificate.*fn1
As of June 2010, Regis had accumulated eight and one-half
In November 2010, Regis requested leave to accompany his mother and attend funeral services in Virginia for a decedent that he represented to be his grandfather. The employer approved the request, Regis attended the service, and thereafter Regis produced the decedent's obituary. The obituary did not mention Regis or Regis's mother.*fn2 His employer then requested additional documents, such as his mother's birth certificate, to verify that the decedent was Regis's grandfather. Regis explained that no written verification existed, and stated that "he was embarrassed to put [his] family business out there," but offered to his employer "telephone numbers . . . for [his] family members to confirm that [the decedent] was [his] grandfather." There is no evidence in the record that Regis's employer contacted these family members. After Regis failed to produce written verification, and although his employer was "not clear what [Regis] was trying to [explain]," the employer retracted its approval, determined that Regis obtained in excess of ten points, and terminated him.
In February 2011, an Appeal Tribunal conducted a telephonic hearing. The employer produced two managers and a human resource specialist. Regis testified and produced a union representative. The Appeal Tribunal determined that Regis's "failure to provide the additional documents" constituted severe misconduct, pursuant to N.J.S.A. 43:21-5(b), and upheld a Deputy's determination that Regis was disqualified from receiving unemployment benefits.
In April 2011, the Board upheld the Appeal Tribunal's findings, but for different reasons, and disqualified Regis from receiving benefits. The Board stated that:
[W]e agree with the decision reached [by the Appeal Tribunal] except [that] the cause of the discharge was [Regis's] unauthorized absences, which were unapproved [by the employer] because [Regis] was unable to establish that the funeral he attended was for his grandfather. The employer's testimony satisfies us that the funeral was not for [Regis's] grandfather.
On appeal, Regis argues that (1) the Board's final decision was arbitrary, capricious, and unreasonable; and (2) he did not engage in severe misconduct. Because we conclude that the relationship between Regis and the decedent and the employer's policy on documentation of excused absences remain ambiguous, we reverse and remand for further proceedings. As a result, we need not reach whether Regis's actions constituted severe misconduct pursuant to N.J.S.A. 43:21-5(b). That determination should be made by the Appeal Tribunal and the Board of Review in the first instance on a complete record.
Our role in reviewing a final administrative agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial, credible evidence in the record, or in violation of express or implicit legislative policy. Taylor, supra, 158 N.J. at 656-57. We must, therefore, determine whether the agency's findings could have reasonably "been reached on sufficient credible evidence present in the record considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Id. at 656 (internal quotation marks omitted) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). If we find sufficient, credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes, supra, 109 N.J. at 588; Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981).
If, however, our review of the record leads us to conclude that the agency's finding is clearly mistaken or erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assist. & Health Servs., 140 N.J. 480, 490 (1995). We may not ...