KATRINA JAMES v. BOARD OF REVIEW, DEPARTMENT OF LABOR, AND CLAIRE'S BOUTIQUES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4442-08T34442-08T3

KATRINA JAMES,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, AND CLAIRE'S BOUTIQUES, INC.,

Respondents.

_______________________________________

 

Argued February 23, 2010 - Decided

Before Judges Fuentes and Simonelli.

On appeal from a Final Decision of the

Board of Review, Department of Labor,

203,546.

Matthew P. Pietrowski argued the cause

for appellant (Levinson Axelrod, attorneys;

Mr. Pietrowski, on the brief).

Alan C. Stephens, Deputy Attorney General,

argued the cause for respondent Board of Review

(Paula T. Dow, Acting Attorney General, attorney;

Lewis A. Scheindlin, Assistant Attorney

General, of counsel; Mr. Stephens, on the

brief).

Respondent Claire's Boutiques, Inc. has not

filed a brief.

PER CURIAM

Katrina James appeals from the denial of her application for unemployment compensation benefits. The Board of Review found appellant ineligible for benefits because she was terminated for engaging in conduct that showed a wanton or willful disregard of her employer's interest. We reverse. After reviewing the available record, we are satisfied that the evidence presented does not support the Board's findings.

Appellant worked at Claire's Boutiques, Inc. as an assistant manager from February 18, 2008, until she was terminated on July 24, 2008. The incidents that gave rise to her dismissal occurred on June 19 and 20, 2008. On the first date appellant pierced the ears of a seventeen-year-old girl. Although she claims that she was not properly trained on this issue, appellant concedes that she was aware that it was against the employer's policy to pierce the ears of minors without a signed parental consent.

By way of explanation, appellant testified that on the date in question the store was crowded and she was under great pressure to move things along quickly. Although appellant completed the form that clearly stated the store's policy requiring minors to have the written consent of a parent before piercing, appellant testified that she simply did not appreciate that the customer was only seventeen years old.

The June 20, 2008 incident involved Jennifer Rubino, another assistant manager. According to appellant, on that date she partially completed the required ear-piercing form, but passed on the customer to Rubino to perform the actual piercing. It is undisputed that the customer in this incident was also only seventeen years old.

From this evidence the Appeals Tribunal found that:

while the claimant may have initially misread the [customer's] birth date on the driver's license, she did review the release form prior to piercing the customer's ears. Although misreading the date may have been an error, she was responsible to make sure that the release form was filled out properly to avoid legal liability. The claimant's failure to review the form and piercing the minor's ears are considered misconduct.

The claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 7-20-08 through 8-30-08, as the discharge was for misconduct connected with the work.

On appellant's direct administrative appeal, the Board of Review adopted the Appeals Tribunal's findings without modification.

In her appeal to this court, appellant argues that she should be judged only by her conduct on June 19, 2008. Although she was initially involved in taking the customer's personal information in the second incident, the actual piercing was done by a fellow employee. With respect to the June 19, 2008 incident, appellant concedes she may have been negligent in failing to appreciate that the customer was under the age of eighteen. She argues, however, that mere negligence or inadvertence does not render her ineligible to receive unemployment compensation benefits.

Under N.J.S.A. 43:21-5(b), a person is disqualified for benefits "[f]or 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 . . . as determined in each case." Although the term "misconduct" is not defined by either statute or regulation, we have defined the term to require the employer to prove that the discharged employee engaged in:

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.

[Borowinski v. Board of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (quoting Beaunit Mills, Inc. v. Board of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957))].

Appellant argues that the evidence presented to the Appeals Tribunal and subsequently adopted by the Board of Review does not support a finding of wanton or willful disregard of her employer's policy on ear-piercing. Stated differently, two incidents of piercing the ears of seventeen-year-old customers does not satisfy the wanton or intentional standard of misconduct, especially when considered in the light of appellant's uncontroverted account of the circumstances that led to the violations.

In response, the Board argues that appellant seeks to trivialize the significance of the violations at issue. Citing Smith v. Board of Review, 281 N.J. Super. 426, 432 (App. Div. 1995), the Board maintains that even if these were deemed to be isolated incidents unlikely to reoccur, they nonetheless had the potential to expose her employer to civil penalties provided by State regulations and civil liability in an action instituted by the minors' parents.

We disagree that Smith is applicable here. In Smith, a hospital orderly served food to a patient awaiting surgery in violation of hospital protocol. Id. at 428. The orderly was terminated and thereafter found ineligible to receive unemployment compensation benefits under N.J.S.A. 43:21-5(b). Ibid. In upholding the denial of benefits we noted that this single act amounted to wanton misconduct because it had the capacity of placing the patient's life in danger. Id. at 432-433.

By contrast here, appellant's misconduct, although sufficiently severe to warrant her termination, did not threaten the health or safety of these underage customers. There are no allegations that appellant did not follow safety protocols in piercing the girls' ears, nor is there any evidence that the employer has been sanctioned for any regulatory infraction or has been sued by the parents of these minors.

Our review of decisions reached by State administrative agencies is limited to determining whether its factual findings are supported by "sufficient credible evidence in the record." In re Taylor, 158 N.J. 644, 657 (1999). That being said, we do not simply engage in a pro forma exercise designed to rubber stamp the agency's decision. Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996). We are duty bound to engage in a "careful and principled consideration of the agency record." Ibid.

Here, there is insufficient evidence to support the Board's finding that appellant's misconduct rose to the level of rendering her ineligible to receive unemployment compensation benefits under N.J.S.A. 43:21-5(b).

Reversed.

 

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A-4442-08T3

April 13, 2010