KATHLEEN M. HILTS v. BOARD OF REVIEW DEPARTMENT OF LABOR

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1709-16T1

KATHLEEN M. HILTS,

        Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
and PEP BOYS MANNY,
MOE & JACK OF DELAWARE,
INC.,

     Respondents.
_____________________________

              Submitted May 3, 2018 – Decided June 19, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 085,845.

              Kathleen M. Hilts, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Aimee Blenner, Deputy Attorney
              General, on the brief).

PER CURIAM
     Kathleen M. Hilts appeals from a final agency decision of the

Board   of   Review     (Board),    which    deemed   her   ineligible       for

unemployment benefits based upon the administrative finding that

she was terminated from her job for simple misconduct pursuant to


N.J.S.A. 43:21-5(b).      For the reasons that follow, we affirm.

     The facts derived from the record are summarized as follows.

Hilts was employed by respondent, Pep Boys Manny, Moe and Jack,

Inc. of Delaware (Pep Boys), as a parts manager from April 23,

2013 until March 9, 2016.          Pep Boys terminated her for violating

its company policy against workplace violence based upon Hilt's

disclosure of a physical altercation she had with a customer on

February 13, 2016.      The altercation arose after the customer, who

was allegedly caught shoplifting, attempted to assault Hilts.

Hilts avoided the assault, but instead of retreating and calling

police, she grabbed the customer and forcibly threw him out of the

store where she worked.

     After Pep Boys terminated Hilts, she applied for unemployment

benefits.     In response, a Deputy Director of respondent, the

Department of Labor and Workforce Development, issued a Notice of

Determination, advising Hilts she was disqualified from receiving

benefits for the period March 6, 2016, through April 30, 2016.

According    to   the   Notice,     Hilts'   "discharge     was   for    simple

misconduct," arising from her "willful and deliberate disregard

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of the standards of behavior [her] employer had a right to expect."

Hilts filed an appeal with the Appeal Tribunal in which she

recounted her positive work history with Pep Boys and, as to the

confrontation with the customer, she argued that she was simply

defending herself.

     In response to Hilts' appeal, the Appeal Tribunal conducted

a telephonic hearing on June 17, 2016, at which both Hilts and a

representative from Pep Boys testified.1    On the same date, the

Appeal Tribunal issued a written decision affirming the Deputy

Director's determination, after it found Hilts had been discharged

for simple misconduct under 
N.J.S.A. 43:21-5(b).    Hilts appealed

and stated in her letter to the Board, among other things, that

she had "security footage" from the store relating to the claims

made against her.    Based on Hilts' possession of the "security

footage," the Board remanded the matter to the Appeal Tribunal for

additional testimony and it further directed Hilts to provide

copies of the security footage to Pep Boys and the Appeal Tribunal

in advance of the hearing.




1
  This was actually a second hearing. At the first hearing, Hilts
did not appear and the Appeal Tribunal affirmed the Deputy
Director's initial decision because there was no contravening
evidence presented. The matter was later reopened.


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     On September 23, 2016, the Appeal Tribunal conducted the

remand hearing.      Only Hilts participated.      During the hearing,

Hilts confirmed that there was no video recording of the February

13 incident2 that led to her termination, and that she grabbed the

customer by the back of his jacket and "escorted" him out of the

store so that he would not try to hit her again.

     After considering the evidence presented at the hearing, the

Appeal Tribunal issued its written decision, again affirming the

Deputy Director's denial of benefits for the limited period.           The

Appeal Tribunal found that Pep Boys learned about the February 13

incident from Hilts and from its observation of Hilts' interaction

with the customer from a video recording of what transpired outside

the store.     It also found that according to Hilts, she "grabbed

the customer by the back of the jacket and threw him out of the

store [which] was done to defend herself" against the customer's

"attempt[] to hit her with his fist."

     Turning    to   its   legal   conclusions,   the   Appeal   Tribunal

discussed the provisions of 
N.J.S.A. 43:21-5(b), which related to

the disqualification of an applicant for benefits when their


2
   Hilts produced video from another incident on a different day
during which she chased another employee, who was chasing a
shoplifter in the parking lot, while telling the employee to stop
and get back in the store in accordance with the company's policy
that store personnel should not pursue shoplifters, but rather
call the police.

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termination   is   due   to   "misconduct,"   and   the   definition    of

misconduct stated in N.J.A.C. 12:17-10.6(3), which included when

an employee violates "a reasonable rule of the employer which the

[employee] knew or should have known was in effect."

     The Appeal Tribunal concluded by finding that the security

footage Hilts presented was not relevant to her termination, and

that her admitting to grabbing a customer and throwing him out of

the store was in violation of Pep Boy's policy against workplace

violence about which Hilts was aware.     It rejected Hilts' argument

that she acted in self-defense because she had an opportunity to

leave the scene and call police, rather than grabbing the customer.

Because there was no evidence that Hilts had been given any

warnings against this conduct, the Appeal Tribunal concluded her

actions only arose to "simple" misconduct, rather than severe

misconduct, which imposed a lengthier period of ineligibility.

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

     Hilts appealed again to the Board, arguing it was unfair that

the same claims examiner conducted the two hearings before the

Appeal Tribunal, and challenging as untrue testimony given by Pep

Boy's representative during the first hearing.            Further, Hilts

claimed she did not act with the "intention of breaking any company

policy or losing [her] job."       After considering her submission,



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the Board issued its written decision on November 15, 2016,

affirming the Appeal Tribunal's decision.          This appeal followed.

     On    appeal,   Hilts    contends     that   as   a   self-represented

litigant, she has been "treated very unfairly" by both respondents.

She claims that her termination "was based on false allegations

from a manager who disliked" her.          In support, she incorporates

her letter to the Board appealing the Appeal Tribunal's final

determination.

     Our   review    of   decisions   by    administrative    agencies     is

limited,   with   petitioners    carrying     a   substantial    burden    of

persuasion.    In re Stallworth, 
208 N.J. 182, 194 (2011); Brady v.

Bd. of Review, 
152 N.J. 197, 218 (1997). An agency's determination

must be sustained "unless there is a clear showing that it is

arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record."      Russo v. Bd. of Trs., Police & Firemen's

Ret. Sys., 
206 N.J. 14, 27 (2011) (quoting In re Herrmann, 
192 N.J. 19, 27-28 (2007)).       "[I]f substantial evidence supports the

agency's decision, 'a court may not substitute its own judgment

for the agency's even though the court might have reached a

different result[.]'"        In re Carter, 
191 N.J. 474, 483 (2007)

(quoting Greenwood v. State Police Training Ctr., 
127 N.J. 500,

513 (1992)).      The burden of proof rests with the employee to



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establish a right to collect unemployment benefits.         Brady, 
152 N.J. at 218.

    Applying our deferential standard of review, we conclude that

Hilts'   contentions   are   without   sufficient   merit   to   warrant

discussion in a written opinion, and we are satisfied that the

Appeal Tribunal's decision, as adopted by the Board in its final

agency decision, was supported by substantial credible evidence

and was legally correct.     R. 2:11-3(e)(1)(D) and (E).

    Affirmed.




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