On appeal from the Board of Review, Department of Labor, Docket No. 261,282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2012
Before Judges Axelrad and Sapp-Peterson.
Claimant, Patricia Ackley, appeals from a final agency decision of the Board of Review (the Board) issued on May 25, 2011. The Board's decision upheld an Appeal Tribunal's ruling that Ackley was ineligible for unemployment benefits from October 25, 2009 through October 31, 2009, as she did not report in accordance with the regulations, and from November 8, 2009 through December 19, 2009, on the grounds that Ackley had been suspended from her employment with the State of New Jersey for misconduct connected with work, N.J.S.A. 43:21-5(b).*fn1 We affirm.
Ackley is employed as a senior probation officer in the Family Division. Her job duties include processing domestic violence complaints and preparing temporary restraining orders and documents for the court. She was suspended with pay on September 28, 2009, because her constant crying and not responding to or assisting co-workers prevented her from functioning in her position and was also disrupting her work unit. Ackley acknowledged her conduct had been disruptive but attributed it to a personality conflict with her supervisor. Her physician diagnosed her as suffering from work-related anxiety and depression, and recommended a transfer to a different supervisor. Human Resources rejected the request on the basis that the medical documentation failed to list any functional limitations necessitating a reasonable accommodation.
Ackley was suspended without pay effective October 1, 2009. Her suspension was indefinite pending disciplinary charges and receipt of a fitness-for-duty medical report which would allow Ackley to return to work. A Preliminary Notice of Disciplinary Action (PNDA) dated October 7, 2009, allowed Ackley to appeal the suspension, which she did, and an administrative hearing was scheduled for November 4, 2009.
On December 4, 2009, Ackley entered into a settlement with the vicinage in which she admitted to the charges set forth in the PNDA of failure to perform duties, insubordination, neglect of duty, and conduct unbecoming a public employee, and agreed to a five-day suspension without pay, effective November 12, 2009.*fn2
The Settlement Agreement further provided that Ackley "will be allowed to utilize and exhaust her earned sick leave, administrative leave and vacation leave, in this specific order, for all unpaid time out of work from September 28, 2009 through November 11, 2009." Ackley was also reassigned to a different work team and supervisor.
Ackley returned to work on November 19, 2009, and, pursuant to the settlement, the remaining time she was out of work (September 28 to November 11) was modified from an indefinite suspension to personal leave. Ackley received her full salary from all accrued leave time from September 28 through October 22, 2009. Ackley testified she did not use her accrued time from October 23 through November 11, 2009, because she needed the time for "medical matters." Mr. Shannon, the Human Resources Manager, verified that Ackley had time available to cover her entire leave but declined to use it. Accordingly, Ackley was recorded as fourteen days off without pay for the period from October 23 through November 14, 2009. While on leave, Ackley filed a claim for unemployment benefits effective November 1, 2009, and requested the claim be backdated to October 25, 2009.
The Deputy Director's determination, mailed on November 13, 2009, found Ackley eligible for benefits without disqualification. The employer appealed, and a hearing was held by the Appeal Tribunal on February 4, 2010. In a decision mailed on April 28, 2010, the Appeal Tribunal reversed the Deputy and held Ackley disqualified for benefits for the six-week period pursuant to N.J.S.A. 43:21-5(b) on the ground she was suspended for misconduct connected with the work. Ackley appealed, and on October 20, 2010, the Board remanded the matter for another hearing and decision. A second hearing was held before the Appeal Tribunal on November 10, 2010.
In a decision mailed on November 10, 2010, the Appeal Tribunal reversed the Deputy's determination and found Ackley's ignorance of the procedures an insufficient reason for permitting the predating of an application for benefits, and Ackley's reason for failing to file an unemployment claim prior to November 1, 2009 was "without good cause." Accordingly, the Tribunal held her ineligible for benefits from October 25 through October 31, 2009, as she did not report in accordance with the Division's regulations, N.J.A.C. 12:17-4.1 and -4.2. The Tribunal additionally found Ackley was not unemployed for the period from November 1 through November 11, 2009, because she could have used her accrued time and be paid during that time when she was granted a personal leave of absence.
With regard to Ackley's disqualification for misconduct connected with work, N.J.S.A. 43:21-5(b) and N.J.A.C. 12:17-10.l, the Tribunal stated: Misconduct connected with the work also includes the concept of gross negligence. Essentially, gross negligence is doing harm to the interests of the employer by acts of commission or omission which, even if not willful, are of such nature that the claimant should have known better than to commit such acts.
In this matter, the claimant was suspended for the period 11/12/09 through 11/18/09, due to the claimant's failure to perform assigned duties and being disruptive in the work place. The claimant had received prior warning, regarding this type of behavior. The claimant's action was a ...