NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. LISA W. WEEMS, v. Appellant, BOARD OF REVIEW,DEPARTMENT OF LABOR AND DEPARTMENT OF HOMELAND SECURITY, Respondents. Submitted January 6, Decided February 10, 2014 PER CURIAM Before Judges Kennedy and Guadagno. On appeal from the Board of Review, Department of Labor, Docket No. 259,834. Lisa W. Weems, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Walko, Deputy Attorney General, on the brief). Respondent Department of Homeland Security has not filed a brief. Claimant, Lisa W. Weems, appeals from a December 2, 2011 final decision of the Board of Review (Board), affirming the

2 decision of the Appeal Tribunal disqualifying her from unemployment benefits. For the reasons that follow, we affirm. Weems was employed by the Transportation Security Administration (TSA) of the United States Department of Homeland Security as a transportation security officer (TSO) from October 27, 2002, to September 25, She was assigned to Newark Liberty International Airport and performed security screenings of passengers and carry-on luggage. On July 3, 2009, Weems was assigned to Terminal A. When she completed her morning shift at 7:00 a.m., she retrieved five bags of personal luggage and, while still in uniform, proceeded via the monorail to Terminal C. While still in uniform, she entered the "sterile side" of the terminal, walking in through the exit ramp, without presenting her bags to be x-rayed and without passing through the metal detector. Regional Security Inspector Tammy Lee Roman noticed Weems entering through the exit ramp at approximately 8:00 a.m. and asked the exit lane operator who she was. When the operator could not identify her, videotape was reviewed. Weems was identified and it was determined that she was off duty and boarding a flight to New Orleans. Weems changed out of her uniform and boarded her flight. By the time Roman got to the gate, Weems's flight had already 2

3 pulled away. Because of the security breach, the flight was called back to the gate and all 113 passengers were ordered to disembark and were rescreened. On September 25, 2009, Weems was discharged for violating federal regulations and TSA policy. On September 27, 2009, Weems submitted a claim for unemployment benefits. A deputy assigned to the New Jersey Department of Labor initially determined that Weems was eligible for benefits. After the TSA appealed, an Appeal Tribunal conducted a hearing and reversed the deputy's determination. Weems appealed the Tribunal's decision to the Board, contending she did not receive adequate notice of the hearing. The Board remanded her claim to the Tribunal for a new hearing. After a second hearing, the Board again concluded that the TSA properly discharged Weems for misconduct. Weems appealed that decision and the Board again remanded, this time for the Tribunal to consider additional evidence regarding the relevant TSA policy at the time of the incident. After taking additional testimony, the Tribunal again concluded that Weems had been properly discharged for misconduct. After Weems's third appeal to the Board, it affirmed and adopted the Tribunal's decision disqualifying Weems from benefits from September 27, 2009, through November 7, 2009, pursuant to N.J.S.A. 43:21-5(b). 3

4 The pro se brief filed by Weems is devoid of the required "appropriate point headings, distinctively printed or typed," required by Rule 2:6-2(a)(5). From the material in the section of her brief entitled "Arguments," we surmise that she claims her discharge was for "off duty misconduct," and was not connected to her work. She also denies violating any "rules, regulation[s], policies or procedures[.]" The standard of review we employ in appeals from administrative agency decisions, including those of the Board of Review, is limited. Messick v. Bd. of Review, 420 N.J. Super. 321, 324 (App. Div. 2011). We focus on whether the Board's determination was arbitrary, unreasonable, capricious, or unsupported by the record. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). "'[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its 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)). We are required to defer to an agency's technical expertise, its superior knowledge of its subject matter area, and its factfinding role. See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992); Close v. Kordulak 4

5 Bros., 44 N.J. 589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). If we determine that the factual findings are supported by sufficient credible evidence, we are obliged to accept them. Self v. Bd. of Review, 91 N.J. 453, 459 (1982). Weems does not deny that she was off duty when she entered the exit lane of Terminal C. Rather, she claims that "there was no... policy which... required a TSA screening checkpoint employee, to be screened or have their baggage screened, while off or on duty, when their baggage is already in a sterile area." We disagree. 49 U.S.C.A (a), provides in pertinent part, that "[a] person may not knowingly and willfully enter, in violation of security requirements prescribed under section 44901, 44903(b) or (c), or of this title, an aircraft or an airport area that serves an air carrier or foreign air carrier." The Under Secretary of Transportation for Security is required to provide for the screening of all persons and property prior to boarding an aircraft, 49 U.S.C.A (a), and to prescribe regulations to protect passengers on an aircraft from acts of criminal violence, 49 U.S.C.A (b). 49 C.F.R provides: (a) No person may: 5

6 (1) Tamper or interfere with, compromise, modify, attempt to circumvent, or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure, or procedure implemented under this subchapter. (2) Enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such areas. (3) Use, allow to be used, or cause to be used, any airport-issued or airport-approved access medium or identification medium that authorizes the access, presence, or movement of persons or vehicles in secured areas, AOA's, or SIDA's in any other manner than that for which it was issued by the appropriate authority under this subchapter. While this section provides exceptions for TSA officers "conducting inspections or tests to determine compliance[,]" 49 C.F.R (b), Weems was off duty at the time she entered Terminal C, and this exemption clearly does not apply. 49 C.F.R provides in pertinent part: No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter. After the Board remanded this matter to the Tribunal for additional testimony regarding relevant TSA policy, Russell McCafferty, former TSA deputy of security, testified that TSOs, 6

7 like Weems, are exempt from screening while on duty and in uniform, but that exemption does not apply when the TSO is engaged in air travel, whether personal or official. Weems argues that her baggage was "already in the sterile area" and therefore, she was exempt from screening. While there is no proof in the record where Weems kept her baggage while she worked her shift in Terminal A, even if it was stored in a sterile area in that terminal, she removed her baggage and traveled on the public monorail before entering Terminal C. McCafferty noted that Weems did not enter through the same checkpoint where she worked that day, but even if she had, it was irrelevant where her bags were stored, as she was required to be screened. McCafferty's testimony is consistent with the previously cited regulations. We reject Weems's claim that, because she was off duty at the time she entered Terminal C, her infraction was not connected to work. New Jersey's Unemployment Compensation Law (the Act), provides that "[a]n individual shall be disqualified for benefits... for misconduct connected with the work...." N.J.S.A. 43:21-5(b). Although the Act does not define "misconduct connected with the work," we have previously described the term as an act of wanton or willful disregard of the employer's interest, a deliberate violation 7

8 of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his 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. [Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957).] Weems remained in uniform when she entered Terminal C, only changing clothes after she bypassed the checkpoints. Moreover, she continues to argue that her status as a TSO exempted her from screening. We find the argument that her misconduct was not connected with her work is without merit. Applying our highly deferential standard of review, we find no occasion to interfere with the Board's decision. The record amply supports the Board's decision disqualifying Weems from unemployment benefits. Affirmed. 8