JOAN CALLEGHER v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2878-04T52878-04T5

JOAN CALLEGHER,

Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and LEONARD &

LEONARD, P.A.

Respondents-Respondents.

__________________________________

 

Submitted May 3, 2006 - Decided May 19, 2006

Before Judges Stern and Alley.

On appeal from the Board of Review, Department of Labor.

Joan Callegher, appellant submitted a brief pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

PER CURIAM

Joan Callegher appeals from the denial of her claim for unemployment benefits. A deputy to the Director of the Division of Unemployment Insurance determined that Callegher was disqualified for benefits from June 13 through July 24, 2004, because she was discharged by respondent Leonard & Leonard on June 15, 2004, "for use of inappropriate or abusive language towards management/co-worker." The deputy found that Callegher's actions "constitute[d] a willful and deliberate disregard of the standards of behavior . . . [her] employer had a right to expect." Consequently, the deputy concluded that the "discharge was for misconduct connected with the work" and she was disqualified for benefits. See N.J.S.A. 43:21-5(b).

The appeal tribunal affirmed the decision after concluding that Ms. Callegher was discharged for "misconduct connected with the work," and, pursuant to N.J.S.A. 43:21-5(b), that she was disqualified for benefits from June 13 through July 24, 2004. The Board affirmed that decision, and Callegher appeals to us.

The term "misconduct connected with the work" is not defined in N.J.S.A. 43:21-5(b), but we have held that in order to constitute misconduct, an employee's actions must be willful, deliberate and intentional. See, e.g., Demech v. Board of Review, 167 N.J. Super. 35, 38 (App. Div. 1979); N.J.A.C. 12:17-10.2. An employee engages in disqualifying misconduct if he or she commits

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 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. Board of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957).]

The record justifies the finding that Callegher was "discharged for misconduct connected with the work" under N.J.S.A. 43:21-5(b).

In reviewing an administrative agency's factual determinations, a court must give due regard to the opportunity of the person who heard the testimony of the witnesses to judge their credibility. If, as here, the factual findings could reasonably have been based on sufficient credible evidence present in the record, we cannot overturn the final decision of the administrative agency. Brady v. Board of Review, 152 N.J. 197, 210 (1997); Clowes v. Terminix Intl., Inc., 109 N.J. 575, 587 (1988); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981). See also Zielenski v. Board of Review, 85 N.J. Super. 46, 54 (App. Div. 1964) (quoting Morgan v. Board of Review, 77 N.J. Super. 209, 213 (App. Div. 1962)). It is also well settled that we cannot disturb an agency's ruling unless we find "that the agency's action was arbitrary, capricious, or unreasonable," Brady v. Board of Review, supra, 152 N.J. at 210, and in Board of Review cases, "[i]f the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (citing Self v. Board of Review, 91 N.J. 453, 459 (1982)). Here, the Board of Review's affirmance of the appeal tribunal's decision is reasonably based upon the proofs and we must therefore affirm its judgment.

Affirmed.

 

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A-2878-04T5

May 19, 2006