Docket No. A-0406-15T3.


Superior Court of New Jersey, Appellate Division.

Decided February 9, 2017.

Attorney(s) appearing for the Case

Christine S. Reeves, appellant pro se.

Christopher S. Porrino , Attorney General, attorney for respondent Board of Review ( Melissa Dutton Schaffer , Assistant Attorney General, of counsel; Robert M. Strang , Deputy Attorney General, on the brief).

Respondent Care One 11 History Lane Operating Co. has not filed a brief.

Before Judges Fuentes and Simonelli.


This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.


Appellant Christine S. Reeves appeals from the August 28, 2015 final decision of the Board of Review (Board), which affirmed the May 22, 2014 decision of the Appeal Tribunal that she was disqualified from receiving benefits for "severe misconduct" connected with the work under N.J.S.A. 43:21-5(b), and must refund unemployment benefits that she improperly received. We affirm.

Reeves was employed as a certified nursing assistance at Care One Senior Care Center (Care One), which provides assisted living and long-term care to elderly residents. She was suspended on February 6, 2014, after an incident involving an elderly resident. Two other employees, Christine Haas and Carol Romero, both registered nurses, witnessed the incident.

Care One terminated Reeves on February 17, 2014 for her conduct toward the resident. On February 23, 2014, Reeves filed a claim for unemployment benefits with the New Jersey Department of Labor (Department). On February 28, 2014, the Department issued a benefit determination that Reeves was entitled to $307 per week in unemployment benefits with a maximum benefit amount of $7982. (Ra3) Reeves collected $307 per week for ten weeks, from March 1, 2014 to May 3, 2014. Because she had earnings from a job she began on May 8, 2014, Reeves collected only $81 in the eleventh week concluding on May 10, 2014.

Care One appealed. At the hearing before the Appeals Tribunal, Care One's representative testified that according to Care One's handbook, which Reeves received, any type of abusive tone of voice toward a resident was grounds for immediate termination.

Haas testified that around lunchtime on the day of the incident, she was near the dayroom when she heard a resident "crying hysterically" that she has to go to the bathroom, and heard Reeves yell at the resident, "you should have thought about that before we started lunch." Haas saw Reeves reluctantly take the resident to the bathroom and heard Reeves yelling, "stop, stop, stop" in "an abusive tone of voice" while Reeves and the resident were inside the bathroom. Haas opened the bathroom door and saw Reeves pulling down the resident's briefs while yelling at the resident, and then "toss the brief[s] across the room into a trash can."

Romero testified that she was in her office at the time of the incident and heard a female voice yelling, "I'm not going to take you and next time think about going to the bathroom before you come to lunch." The yelling was so loud that Romero left her office to see what was going on. She saw Reeves pushing a resident in a wheelchair to the bathroom. She then saw the bathroom door being closed and then heard Reeves yell, "stop, stop, stop."

Reeves initially denied telling the resident that she should have thought of going to the bathroom before coming to lunch. She later admitted she told the resident that she should have "gotten someone to take her to the bathroom before lunch[.]" Reeves, however, did not think what she said was wrong.

In a May 22, 2014 decision, the Appeals Examiner found Haas and Romero credible and Reeves not credible, and determined that Reeves was discharged due to her behavior toward the resident, and her behavior rose to the level of severe misconduct connected with the work. The Appeals Tribunal disqualified Reeves for benefits from February 2, 2014 in accordance with N.J.S.A. 43:21-5(b), and remanded the matter to the Director of the Division of Unemployment Insurance to determine Reeves's potential liability for a refund of unemployment benefits. On May 27, 2014, the Director issued a request for refund in the amount of $3151.

Reeves timely appealed to the Board. On September 30, 2014, the Board affirmed the Appeals Tribunal's decision. Reeves appealed to this court. Before resolution of the appeal, we granted the Board's motion for a final remand to apply the standard articulated in Silver v. Board of Review, 430 N.J.Super. 44 (App. Div. 2013).

On August 28, 2015, the Board issued a revised decision, affirming the Appeals Tribunal's decision. The Board found that Reeves's actions constituted an abuse of her responsibilities to the resident, and her actions were deliberate and malicious. The Board concluded that Reeves's actions rose to the level of severe misconduct connected with the work under N.J.S.A. 43:21-5(b). On September 15, 2015, Reeves filed a notice of appeal.

On appeal, Reeves argues that the Appeals Tribunal and Board denied her due process and a fair and impartial hearing. She also argues that the evidence did not support a finding of simple misconduct, severe misconduct, or that she committed repeated violations of any employer policy.

We owe deference to the Appeals Tribunal's findings of fact and credibility assessments. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported `by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)); see also Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28-29 (1981).

In addition, we owe deference to the Board's expertise in unemployment cases and its repeated construction and application of the standards of Title 43. See, e.g., Brady, supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J.Super. 241, 245 (App. Div. 1985). Unless the Board's action "was arbitrary, capricious, or unreasonable, [its] ruling should not be disturbed." Brady, supra, 152 N.J. at 210. Applying these standards, we discern no reason to disturb the Board's decision.

Following a conditional veto by Governor Christie, the Legislature amended the unemployment statutes in 2010 to add a third intermediate category for benefit disqualification classified as "severe misconduct." See L. 2010, c. 37, § 2 (now codified at N.J.S.A. 43:21-5(b)). Prior to that time, the statute only included the categories of ordinary "misconduct" and "gross misconduct." See generally Silver, supra, 430 N.J. Super. at 48-49 (tracing the evolution of the statute). The amended statute does not provide a comprehensive definition of severe misconduct; however, the statute does provide certain examples of what comprises severe misconduct, including "where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section." N.J.S.A. 43:21-5(b); see also Silver, supra, 430 N.J. Super. at 53-55 (noting the enforceability of these illustrative examples).

We held in Silver that severe misconduct requires, at a minimum, proof of the same state of mind on the part of the claimant needed to show simple misconduct. Silver, supra, 430 N.J. Super. at 55-56. Specifically, it must first be shown that the claimant's actions that resulted in her discharge were "improper, intentional, connected with the work, malicious, and within the employee's control." Id. at 53 (emphasis omitted). Second, the conduct must "also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Ibid.

In the wake of Silver, the Department amended its regulations to include a definition of severe misconduct:

"Severe misconduct" means an act which (1) constitutes "simple misconduct," as that term is defined in this section; (2) is both deliberate and malicious; and (3) is not "gross misconduct." 1. Pursuant to N.J.S.A. 43:21-5, as amended by []L. 2010, c. 37, such acts of "severe misconduct" shall include, but not necessarily be limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute "gross misconduct," misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, or theft of time; except that in order for any such act to constitute "severe misconduct," it must also (1) constitute "simple misconduct"; and (2) be both deliberate and malicious. "Simple misconduct" means an act which is neither "severe misconduct" nor "gross misconduct" and which is an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior that the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. Nothing contained within this definition should be construed to interfere with the exercise of rights protected under the National Labor Relations Act or the New Jersey Employer-Employee Relations Act. [N.J.A.C. 12:17-2.1.]

The Board properly applied the Silver concepts in this case. Reeves deliberately and maliciously verbally abused and mistreated an elderly nursing home resident who was under her care, and disregarded the standards of behavior which her employer had the right to expect from an employee. Applying our standard of review, the Board's decision must be sustained, as there is ample evidence in the record as a whole to support the finding of severe misconduct with respect to Reeves's conduct. R. 2:11-3(e)(1)(D).

We have considered Reeves's arguments that she was denied due process and a fair hearing in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Reeves received all the due process to which she was entitled, as well as a fair hearing.



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