GILMAN & CIOCIA, INC v. BOARD OF REVIEW AND MARY E. WYVILLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3406-07T33406-07T3

GILMAN & CIOCIA, INC.,

Appellant,

v.

BOARD OF REVIEW AND

MARY E. WYVILLE,

Respondents.

______________________________

 

Argued June 1, 2009 - Decided

Before Judge Reisner and Sapp-Peterson.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 95-779.

Geoffrey Johnson argued the cause for appellant (Johnson & Conway, L.L.P., attorneys; Mr. Johnson, on the brief).

Ronald M. Gutwirth argued the cause for respondent Mary E. Wyville.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Ellen A. Reichart, on the statement in lieu of brief).

PER CURIAM

In this unemployment benefits appeal, the employer, Gilman & Ciocia (G & C), appeals from a February 5, 2008 final decision of the Board of Review finding claimant Mary E. Wyville eligible for benefits. We affirm.

I

G & C is an investment firm. The central issue in the unemployment claim was whether Wyville, a bond trader and office manager employed by G & C, quit her job because of dissatisfaction with her job title, or whether she quit because G & C wanted her to continue engaging in activities that violated securities regulations and jeopardized her bond trader's license.

According to Wyville, a bond trading firm was required to have a licensed principal in the office to sign off on trades. The office of G & C in which she worked did not have a licensed principal, and G & C refused to give Wyville that title, although she had taken and passed the required Series 24 licensing exam. To circumvent the requirement, G & C had its traders fax trades to another G & C office, where the trades would be signed for by the principal in that office. Wyville objected to participating in this activity, which she believed was illegal, or the related activity of phoning in trades to the other office. According to Wyville, her objections to this illegal conduct caused her to resign from her job. There is no dispute that Wyville filed a complaint with the North American Securities Dealers Association (NASD), which found that G & C had violated NASD regulations and issued the firm a Letter of Caution.

The Board concluded that the record supported Wyville's factual contention that she resigned to avoid participating in illegal activities, and reversed the Appeals Tribunal's conclusion that Wyville resigned without good cause attributable to the work. N.J.S.A. 43:21-5(a).

II

Before addressing the merits of the appeal, we briefly review the somewhat complicated history of this case. Wyville worked as a bond trader at G & C from January 1, 2003 through July 6, 2005, when she resigned. The Deputy initially denied her unemployment claim, reasoning that although Wyville contended she quit because her "employer was participating in illegal trading activities that put [her] personally at risk," the employer denied the allegations and Wyville had not submitted evidence to substantiate her claim.

Wyville appealed, and after a hearing on December 19, 2005, the Appeals Tribunal concluded that she was ineligible for benefits, reasoning that if Wyville genuinely believed the conditions of work "were unfair or illegal" she would not have been willing to "return to the same work under the same conditions." Wyville appealed to the Board, which dismissed her appeal as untimely without passing on the merits. Wyville, now represented by counsel, appealed to this court. However, with the Board's consent, we remanded the case back to the Board by order of August 24, 2006 "for a new hearing and new decision on the merits."

The Board in turn remanded the case to the Appeal Tribunal, which held a hearing at which only the employer appeared. As a result, on February 5, 2007, the Tribunal issued a decision simply incorporating by reference the findings of fact from its 2005 decision and finding Wyville ineligible for benefits. However, upon receiving proof that Wyville's attorney had not been given notice of the February 5 hearing, and Wyville herself was out of town on business at the time, the Board set the Tribunal's decision aside on March 15, 2007, and once again remanded the matter for "hearing and a decision."

The Tribunal held the required telephonic rehearing on June 21, 2007. The employer, without excuse or explanation, failed to participate in this hearing. Consequently, the evidence at this hearing consisted only of testimony from Wyville and her witness, Linda Ferro, and Wyville's documentary evidence. The Tribunal found that Wyville left her job because of dissatisfaction with her compensation and because she did not get along with the company's chief operating officer. The Tribunal did not credit Wyville's claim that she left due to the company's securities violations, primarily because she was willing to return to work in August 2005 after her resignation. Wyville appealed to the Board.

On February 5, 2008, the Board issued a final decision rejecting the Tribunal's findings and making its own findings of fact. Contrary to the Tribunal, the Board gave less weight to Wyville's alleged willingness to return to work, finding that "the employer discussed possible reemployment . . . but did not offer the claimant a position." The Board also gave greater weight to the fact that after Wyville resigned, the NASD confirmed her view that G & C was committing regulatory violations, and issued a letter of caution. Relying on Casciano v. Board of Review, 300 N.J. Super. 570 (App. Div. 1997), the Board found:

[I]n this case, based on the only testimony provided and supported by documentation, the claimant left the job rather than perform what she had reason to believe were improper procedures. This gave her good cause for leaving for reasons attributable to her work. Hence, no disqualification exists under N.J.S.A. 43:21-5(a).

III

It is well-established that our review of the Board's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). Further, the Board may reject the Tribunal's factual findings, including its credibility determinations, so long as the Board cogently and convincingly explains its rationale for the rejection. N.J.S.A. 43:21-6(e); Ryan v. Brown, 279 N.J. Super. 648, 651 (App. Div. 1995). See also Cavalieri v. Bd. of Trs. of the Pub. Employees Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).

Before addressing the merits, we briefly address an issue concerning the record on this appeal. In a footnote in its brief-in-chief, and in a point in its reply brief, G & C questions whether the Board had the entire record before it in rendering its decision and whether the Board considered that record. We decline to consider these contentions for two reasons.

First, appellate arguments are not properly raised in footnotes, Universal-Rundle Corp. v. Commercial Union Ins. Co., 319 N.J. Super. 223, 246 n.8 (App. Div.), certif. denied, 161 N.J. 149 (1999), nor is it proper to raise an appellate argument for the first time in a reply brief. See State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). The latter transgression is particularly problematic here, because it deprived the Board, which filed a statement in lieu of brief before the reply brief was filed, of the opportunity to address the issue of the record.

Second, the Board's attorney filed a statement of items comprising the record on appeal, memorializing the items the Board considered in rendering its decision. See R. 2:5-4(b). If G & C intended to question what the agency did or did not consider or what materials were properly part of the record, it should have filed a motion to settle the record. See R. 2:5-5(a). Having failed to do so, it has not properly preserved the issues for this appeal.

G & C also contends that the Board's decision is not supported by substantial credible evidence. In failing to participate in the Tribunal hearing or the administrative appeal before the Board, G & C waived its right to raise on this appeal issues that it could have, but did not, present to the Tribunal or to the Board. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). However, we also find no merit in G & C's challenge to the Board's decision.

Having reviewed the entire record presented to us on this appeal, we conclude there is adequate credible evidence to support the Board's factual findings. See Brady, supra, 152 N.J. at 210. The Board cogently explained its decision to credit Wyville's testimony, and the record supports that decision as well. See Ryan, supra, 279 N.J. Super. at 651; Cavalieri, supra, 368 N.J. Super. at 534.

Based on our review of the record, we note certain weaknesses in the Tribunal's credibility findings. Wyville was cogent, detailed and consistent in her testimony concerning the employer's demand that she illegally obtain signatures for trades without having the required principal trader in the office. The NASD later confirmed that her view was correct. Moreover, in context, her willingness to return to work after resigning does not fairly impugn her credibility. Notably, when Wyville explained that she was willing to return to work, she also indicated that her employer told her that if she returned, she would no longer be required to engage in the activity she believed was illegal and that another employee would be appropriately licensed. She also testified that ultimately the employer later told her that the alleged job was unavailable.

Based on the Board's factual findings, which find support in the record, the Board's decision is consistent with applicable law, under which an employee is not disqualified if she resigns to avoid participating in illegal activities. See Casciano, supra, 300 N.J. Super. at 577.

Affirmed.

 

The employer did not participate in this telephonic hearing.

G & C claims that one of the prior hearings was not transcribed. However, during the June 21, 2007 hearing, the appeals examiner actually played what appeared to be virtually the entire audiotape of that prior hearing, which was in turn transcribed into the record. Hence, it is clear that this material was before the Board when it made its decision. We also note that the examiner vigorously cross-examined Wyville at the June 21 hearing, appearing to be challenging her to prove that the prior Appeal Tribunal decisions were wrong, despite the Board's direction to give Wyville a new hearing.

(continued)

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9

A-3406-07T3

June 24, 2009