Borough of Ringwood v. Bd. of Review

Decision Date09 June 2016
Docket NumberDOCKET NO. A-1244-14T2
PartiesBOROUGH OF RINGWOOD, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and BARBARA FICKEN, Respondents.
CourtNew Jersey Superior Court — Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Before Judges St. John and Guadagno.

On appeal from the Board of Review, Department of Labor & Workforce Development, Docket No. 006,617.

Justin D. Santagata argued the cause for appellant (Kaufman Semeraro & Leibman LLP, attorneys; Mr. Santagata, on the briefs).

Paula M. Dillon argued the cause for respondent Barbara Ficken (Krumholz Dillon, P.A., attorneys; Ms. Dillon, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Brian M. Scott, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant, Borough of Ringwood (Ringwood), challenges the final determination of the Board of Review, Department of Labor and Workforce Development (Board), finding Barbara Ficken had not voluntarily quit her job, and therefore was not disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a). We conclude the Board's decision, reversing that of the Appeal Tribunal (Tribunal), was not adequately supported by the facts in the record and therefore we reverse.

We discern the following facts from the record, which includes a testimonial hearing conducted via telephone by the Tribunal on March 12, 2014. For sixteen years, from November 1997 to December 2013, Ficken was a police dispatcher for Ringwood. Ficken's last day of attendance at work was July 26, 2013. Thereafter to August 11, she was on vacation. Ficken was scheduled to return on August 12, but she called in sick for that day and the following day.

On August 14, 2013, Ficken's husband dropped off a note to her supervisor from Michael Lief, M.D., stating that she could not work from August 12 through August 16, 2013. Her husband also submitted a second note, from Efstathia Chiopelas, M.D., on the same day, stating Ficken could not work from August 14 through September 3, 2013. Dr. Chiopelas explained, "[d]ue to aflare of her underlying disease she was advised to rest and stay home from work." Ficken testified she saw both these doctors on August 14, which is typical of her visits, as she sees "three to five specialists a day usually." Both doctors' letterheads bear the same address. As of August 14, Ficken had exhausted her paid sick leave.

On September 4, Ficken again saw Dr. Lief. He gave her a note excusing her from work through January 1, 2014, "due to her ongoing chronic medical conditions," which was delivered by her husband to her supervisor on September 5.

Ringwood's attorney, Justin Santagata, testified that he sent Ficken a notice dated September 11, 2013, under the Federal Family Medical Leave Act (FMLA), 29 U.S.C.S. §§ 2601 to 2654, advising her to submit the requisite medical certifications to obtain the four-month leave of absence and that her job would not be held beyond that period. The notice indicated the amount of FMLA days Ficken had and that Ringwood was not required to hold her position past the expiration of these days.

The notice was sent via regular and certified mail; the certified mail was returned, but the regular mail was not. The letter was addressed to Ficken at her address in Ringwood. Santagata testified that this address was obtained from Ringwood's records. Ficken did not provide the requisitemedical certifications or any further information and testified that she never received this notice. She testified that she moved from Ringwood at the end of August, had filled out a change of address form at the post office, and had received other correspondence that was forwarded from that address.

On September 26, 2013, Ficken called Susan Rohdieck, a deputy clerk in Ringwood, about temporary disability benefits.1 Rohdieck testified that Ficken indicated she received a letter from Ringwood's attorney that she could lose her job. Rohdieck also memorialized the conversation in her notes on Ficken's disability claim memo.

On December 18, 2013, Ringwood's manager, Scott Heck, sent Ficken a letter stating that she had failed to fill out the FMLA paperwork, and that Ringwood had waited until the expiration of the FMLA period, and now that time had expired. Therefore, Ringwood advised Ficken that she had abandoned her position and relinquished her job. The address on the letter was in West Milford, Ficken's then current address.

Ficken testified she was released by her doctor to return to work on December 27, 2013. Thereafter, on December 30, 2013, Ficken came to Heck's office to discuss the termination letter.Ficken's friend, Jean Lee, accompanied her to the office. In response to a question from Santagata, Lee testified that Ficken told her that Ficken did not open a letter from Santagata's office.

On January 5, 2014, Ficken filed an application for unemployment benefits. On February 11, 2014, a Notice of Determination indicated Ficken was granted unemployment benefits as it was found that she was discharged for "simple misconduct." Ringwood appealed this decision to the Tribunal and a hearing was conducted via telephone on March 12, 2014. Heck, Rohdieck, and Santagata testified for Ringwood, while Ficken and Lee testified for Ficken.

In a decision mailed on April 22, 2014, the Tribunal found:

[t]he claimant asserts she did not receive correspondence from the borough attorney, which had required her to fill out FMLA paperwork to approve her leave of absence. This assertion is rejected as the preponderance of evidence presented indicates the claimant did receive the correspondence, via regular mail, sent by the borough attorney. As such, it is concluded by this Tribunal that the claimant's failure to request permission for a leave of absence by properly filling out the FMLA paperwork, demonstrates her intention to abandon the job.

The Tribunal found Ficken was disqualified for benefits under N.J.S.A. 43:21-5(a), concluding that she voluntarily left work without good cause attributable to the work. It found thatthe disqualification did not arise under N.J.S.A. 43:21-5(b), as Ficken was not discharged for misconduct connected with the work.2

On May 7, 2014, Ficken appealed the decision of the Tribunal to the Board. The Board issued its final agency decision on November 5, 2014. The Board adopted most of the Tribunal's findings of fact, except it rejected the finding that Ficken had received correspondence from Ringwood's attorney and instead concluded:

[t]he claimant hand-delivered the medical documentation excusing her from work through October [sic3] 1, 2014, on September 3, 2013. Subsequently, the claimant maintained contact with the benefits clerk regarding her temporary disability claim. The claimant did not receive any additional forms to complete after September 3, 2013 regarding a leave under the [FMLA]. On December 30, 2013, the claimant received a termination letter, dated December 18, 2013, from the employer. The employer decided to fill the claimant's position due to the nature of the work that the claimant performed.

The Board held that Ficken was not disqualified under N.J.S.A. 43:21-5(a) because the facts showed that Ficken's separation was not voluntary, she had done enough to evidence an intent to keep her job, and she had not received the FMLA notice. In reversing the Tribunal, the Board concluded:

[t]he testimony at the hearing clearly established that the claimant was ill, provided the employer with the proper medical documentation, and she maintained contact with the employer regarding her disability leave. Thus, the claimant intended to return to work upon her recovery as in Garcia v. Board of Review, 191 N.J. Super. 602 (App. Div. 1983).

Additionally, the Board found that Ringwood "discharged the claimant during the period she was disabled, because [Ringwood] needed to fill her position." Finding no evidence that Ficken was discharged for misconduct, the Board agreed with the Tribunal that no disqualification arose under N.J.S.A. 43:21-5(b). Therefore, Ficken was eligible for unemployment benefits. This appeal ensued.

Ringwood argues the entire case turns on the single disputed fact of Ficken's receipt of the FMLA notice. Ringwood contends that Rohdieck's memo on Ficken's file, which included Ficken's statement about receiving a letter from Ringwood's attorney about losing her job, should have been admitted into evidence because of its "significance in the context of allother evidence." Next, Ringwood argues the Board erred in holding that Ficken did not receive the notice and contends it is unsupported by the testimony. Lastly, Ringwood argues the Board failed to appreciate the dispositive significance of the notice.

Ficken contends the Board's grant of her unemployment benefits is consistent with public policy and the legislative intent of the statutes. Moreover, Ficken argues that the record shows that she did not voluntarily quit, and did not receive the FMLA notice. The Board maintains its decision was reasonable and supported by credible evidence in the record and, thus, there is no reason to disturb its ruling.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citation omitted); In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). An appellate court will not reverse the decision of an administrative agency unless it is "arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole." Stallworth, supra, 208 N.J. at 194 (citation omitted); see also In re Suspension of License of Silberman, 169 N.J. Super. 243, 255—56 (App. Div. 1979), aff'd, 84 N.J. 393 (1980).

A reviewing court should not substitute its own judgment for the agency's judgment even though it might have reached a different conclusion. Stallworth, supra, 208 N.J. at 194....

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