WENDY E. TINNES v. BOARD OF REVIEW DEPARTMENT OF LABOR and MELISSA L. HARRISON t/a MYSTIQUE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0706-08T20706-08T2

WENDY E. TINNES,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and MELISSA L. HARRISON,

t/a MYSTIQUE,

Respondents.

__________________________________________________________

 

Submitted May 20, 2009 - Decided

Before Judges Axelrad, Messano and Kestin.

On appeal from a Final Decision of the Board of Review, Department of Labor 187,350.

Wendy E. Tinnes, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Melissa L. Harrison, t/a Mystique, respondent pro se.

PER CURIAM

Appellant Wendy E. Tinnes was employed as a manicurist and receptionist by respondent Melissa L. Harrison, t/a Mystique, from January 3, 2006 to April 25, 2008, when she was discharged. Tinnes filed a claim for unemployment benefits which was originally denied, a deputy director of the Division of Unemployment Insurance concluding her discharge was based upon "misconduct," specifically the use of "inappropriate language in the workplace" after having "been previously warned."

Tinnes's appeal of that decision was heard telephonically on June 13, 2008. Harrison testified regarding Tinnes' inappropriate behavior at the nail salon, and a witness, Carol Donohue, supported the allegations by recounting a specific incident in which Tinnes embarrassed her before other patrons. Tinnes testified Harrison told her she was being discharged because "business was slow." She produced two witnesses who testified about her conduct in the salon, and Harrison's statements that Tinnes was terminated because of "the economy[.]"

The Appeal Tribunal (the Tribunal) issued its decision on June 19, finding that Tinnes was not discharged because of misconduct, but rather because "the employer could no longer afford to keep" her employed. Upon Harrison's appeal, the Board of Review (the Board) reversed the decision of the Tribunal. The Board found Tinnes "was discharged for using profanity while working on a client and loss of revenue." It further found that Tinnes "had been warned previously about the use of profane language and inappropriate conversation while performing services for [her] employer." The Board concluded Tinnes was disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(b). This appeal ensued.

In her pro se brief, Tinnes contends that she was "let go by [her] employer due to economic reasons and therefore [] should not have been disqualified for benefits." We have considered her argument in light of the record and applicable legal standards that govern our review. We affirm.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[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.'" Ibid. (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. (quotations and citations omitted); Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

The purpose of New Jersey's Unemployment Compensation Act (the Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted) (emphasis added). Although the Act is remedial in nature, the claimant bears the burden of proving entitlement to benefits. Brady, supra, 152 N.J. at 218. Moreover, "[t]he basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J. at 374.

Under the Act,

An individual shall be disqualified for benefits:

(a) . . . .

(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week . . . .

[N.J.S.A. 43:21-5(b).]

"Our decisions have long-recognized that 'misconduct' requiring a temporary disqualification from receiving unemployment compensation benefits must be more than simply inadequate job performance that provides good cause for discharge." Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009). Rather,

[m]isconduct . . . must be 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.

[Ibid. (quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956) (in turn quoting 48 Am. Jur. Soc. Sec., Unemployment Comp. 38 at 541 (1943)), certif. denied, 23 N.J. 579 (1957)).]

"[D]isqualification under N.J.S.A. 43:21-5(b) is warranted only when the employee's conduct that resulted in his or her discharge had 'the ingredients of wilfulness, deliberateness and intention.'" Parks, supra, 405 N.J. Super. at 254 (quoting Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979). "[M]isconduct has been held to include deliberate refusal to comply with an employer's reasonable work rules." Smith v. Bd. of Review, 281 N.J. Super. 426, 431 (App. Div. 1995) (citing Broderick v. Bd. of Review, 133 N.J. Super. 30 (App. Div. 1975)).

In this case, the Board credited the testimony of Harrison and her witness regarding Tinnes's profanity and inappropriate comments in the workplace. This continued after she was "instructed to refrain from such behavior and comply." The Board further concluded that Tinnes's conduct led to the "alienat[ion] [of] customers and caused a loss of revenue[]" at Mystique. These findings are supported by substantial, credible evidence in the record, and we will not disturb them. Based upon those facts, the Board's conclusion that Tinnes engaged in "misconduct connected with the work" was justified, as was her disqualification from receiving unemployment benefits pursuant to N.J.S.A. 43:21-5(b).

Affirmed.

 

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A-0706-08T2

 

June 19, 2009