JAY J. BROWN v. BOARD OF REVIEW et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3942-04T23942-04T2

JAY J. BROWN,

Claimant-Appellant,

v.

BOARD OF REVIEW and

TRI-STATE DESIGN, INC.,

Respondents-Respondents.

________________________________________________________________

 

Submitted July 11, 2006 - Decided July 31, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from a Final Decision of the

Board of Review, Department of Labor, 53,240.

Jay J. Brown, appellant pro se.

Zulima V. Farber, Attorney General of New

Jersey, attorney for respondent, Board of

Review (Michael J. Haas, Assistant Attorney

General, of counsel; Ellen A. Reichart,

Deputy Attorney General, on the brief).

PER CURIAM

Claimant Jay J. Brown appeals from a decision dated February 16, 2005 by the Board of Review (Board) finding him ineligible for unemployment benefits. We affirm.

The facts relevant to this appeal are as follows. Claimant was employed by Tri-State Design, Inc. from March 16, 1998 through November 4, 2002 as a recruiter for temporary office staff. He initially worked in Tri-State's Kenilworth office, but when that office closed, he worked from home and reported to meetings at the company's Verona office when required to do so by his supervisors. After the Verona office closed, the company moved to Wayne, Pennsylvania.

On November 1, 2002, claimant's supervisor, Cheryl Mankins, requested that he report one day a week to the Pennsylvania office. Mankins sent claimant an e-mail advising him to report to the Pennsylvania office the following week. The e-mail stated:

[The president of the company] and I need you to come to the office once a week to work with the team. It would be a team-building effort. It will keep you updated with open employment requirements. I hope it does keep you organized as well. Then we may not have you calling candidates that have already been hired. I would like you to know, to know which day of the week you will be coming.

Mankins testified that she and the president of the company thought it important for claimant "to be aware of all the changes[,] to . . . meet with the team to see if there's anything new, [and] to work together. When you work remotely sometimes you get disconnected, plus there's also issues with our server. You know it was remote dial-in access." The Pennsylvania office was eighty miles from claimant's home but the employer did not believe it was burdensome for him to commute one day per week.

Claimant refused to comply with the employer's request. Mankins testified that claimant "said he wasn't coming in. He said he came in the week before and he didn't get a sandwich or anything offered to him, and he wasn't going to do it." Indeed, when Mankins called claimant on Friday, he "hung up the phone" and sent a responding e-mail, stating:

What's the deal? Why do you keep blowing me off. Something needs to be addressed. You're stonewalling me. Don't underestimate you - I'm not a fool. I've been given excuses. I want to speak . . . for you not to speak to me. I have sensed you mistrust me in the tone of your e-mails. I'm feeling the same way about you. I am not new; I know how you operate.

When asked if he was refusing to come to the Pennsylvania office, claimant responded, "Yes." Thereafter, he was terminated for insubordination.

Claimant testified that the reason he refused to attend meetings in Pennsylvania once a week "is because they wanted me to do the same exact thing I was doing at home; and I couldn't see driving a hundred, two-hundred-mile round trip, and that was not an option. The agreement was I worked from home. You know after I worked from home a year or two, then they decided I could come in once a week, which was not part of the agreement."

After hearing the testimony, the Appeal Tribunal determined that claimant was disqualified for benefits under N.J.S.A. 43:21-5 because he was discharged for misconduct connected with his work.

"Misconduct within the meaning of the Unemployment Compensation Act excluding from its benefits an employee discharged for misconduct must be an act of wonton 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 employees or negligence in such degree or recurrence as to manifest culpability, wrongful intent, employer's interests, or of the employee's duties and obligations to the employer." 48 American Jurisprudence 541.

The Appeal Tribunal found that "claimant refused to report as required by the company. The claimant does not show good cause for refusing to report once a week on a day of his choice." The Appeal Tribunal concluded:

The claimant's action in refusing a directive from the supervisor and from the president, which was the cause of the discharge, was a disregard of the standards of behavior which the employer has a right to expect of his employees and constitutes misconduct connected with the work. Therefore, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 11/3/2002 through 12/14/2002 as he was discharged for misconduct connected with the work.

Claimant appealed to the Board of Review and the Board affirmed the Appeal Tribunal's decision but modified claimant's termination date to November 5, 2002.

In this appeal, claimant argues that his "leaving was due to unreasonable request by employer to move work location, which would cause a hardship, and therefore, he should not have been disqualified for benefits." In essence, claimant argues that he "was unable to comply with the new employment conditions due to hardship." Claimant has presented no evidence, however, that he was "unable" to comply, nor did he present any evidence indicating that he had no obligation to comply with his employer's request. Rather, the evidence indicated that claimant simply chose not to comply with the employer's request that he report to the Pennsylvania office once a week on a day of his choice.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We may not engage in an independent assessment of the evidence, In re Taylor, supra, 158 N.J. at 656, and we will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). We give great deference to administrative decisions, State v. Johnson, 42 N.J. 146, 159 (1964), but we do not act simply as a rubber stamp of the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

Applying these principles to the record before us, we are satisfied that the Board's decision was neither arbitrary, capricious nor unreasonable. The decision is supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D). Claimant failed to carry his burden to demonstrate that he was not fired for misconduct.

Affirmed.

 

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A-3942-04T2

July 31, 2006