DIANE GALANTE v. BOARD OF REVIEW, DEPARTMENT OF LABOR, et al.

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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A0303-06-T5-0303-06T5

DIANE GALANTE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and FOXTONS, INC.,

Respondents.

___________________________________

 

Submitted May 31, 2007 - Decided

Before Judges Stern and Lyons.

On appeal from the Board of Review, Department of Labor, No. 87-865.

Diane Galante, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent, Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent, Foxtons, Inc., did not file a brief.

PER CURIAM

Appellant, Diane Galante, appeals from a decision of the Board of Review which found her disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(b) and liable for a refund in the sum of $966 for benefits received for the weeks ending August 27, 2005 through September 3, 2005 in accordance with N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Appellant was employed by Foxtons, Inc. ("Foxtons") as a real estate field services coordinator from April 19, 2004 through August 22, 2005. She was discharged for what Foxtons alleged was misconduct connected with her work. Appellant filed a claim for unemployment compensation benefits on August 28, 2005. The determination of the deputy claims examiner was mailed on September 15, 2005. It held appellant disqualified for benefits from August 21, 2005 through October 1, 2005 on the ground that she was discharged for misconduct connected with her work.

A request for a refund from the Director of Unemployment Insurance was mailed on September 15, 2005 advising appellant that she was liable for a refund of $966 received as benefits for weeks ending August 27, 2005 through September 3, 2005. On September 20, 2005, appellant filed an appeal of the determination of the deputy claims examiner and of the request for a refund with the Appeal Tribunal. A hearing in the matter was held before the Appeal Tribunal on October 20, 2005 at which only the appellant appeared.

On October 21, 2005, a decision was issued by the Appeal Tribunal finding appellant eligible for benefits. On October 28, 2005, Foxtons filed an appeal of the decision of the Appeal Tribunal with the Board of Review. The Board of Review issued an order on December 7, 2005, remanding the matter for a hearing and a decision on all issues. The Appeal Tribunal held the hearing on remand on January 19, 2006.

Kathy Currao, Foxtons' Human Resources Director, testified at the hearing that appellant was discharged because she used the internet to search for other employment on company time and visited websites that were not business-related. She said appellant visited WebDate.com 433 times, JobSearch.org 103 times, Shopping.msn.com 84 times, Yahoo.Hot.Jobs 72 times and Ads.Tarot.com 50 times. Appellant used her computer for non-work related purposes at various times throughout the workday.

Currao also testified that appellant's inappropriate use of the internet began in June 2005, but appellant was not terminated until August 22, 2005 because Foxtons was searching for a person to replace her. Currao denied that a lawsuit filed by appellant against Foxtons was the cause of her discharge. She said appellant also used the company computer to send her resume to another employer. Mike Toth, appellant's last supervisor, testified that he warned appellant in mid-July about her low productivity which he felt was caused by her excessive use of the internet.

Eric Olsen, Foxtons' Director of New Business and appellant's supervisor earlier in her employ with Foxtons, stated that company policy permitted employees to use the internet for personal business only during lunch time and break periods. According to Olsen, however, during the course of appellant's employment, this policy was changed to ban any personal use of the internet, and employees were notified of the change in policy via e-mail. As a new business consultant, appellant's breaks and lunches were at regular times and management was aware of when she took her lunch breaks because she completed a time sheet.

Appellant testified both at the October 20, 2005 hearing and the January 19, 2006 hearing. She stated that during the course of her employment, she purchased a house through Foxtons. Prior to closing on the house, she hired a home inspector recommended by Foxtons to inspect the home. The home was described as having a large, dry basement. Appellant claims that after she purchased the home, she found this description to be false. As a result, appellant filed a lawsuit against the seller, Foxtons, and the home inspector. The lawsuit was served on Foxtons the same day that appellant was terminated. Appellant contends that her discharge was in retaliation for filing the lawsuit.

Appellant admitted, however, that she used the internet 103 times to search for a job at JobSearch.org on company time. Appellant began to look for a job because she "knew" she was going to be fired for filing the lawsuit. Appellant denied visiting WebDate.com 433 times and stated that many of the other websites she visited were work-related. Appellant said that she limited her use of the internet to lunch time and break periods as permitted by company policy.

After a review of the testimony, the Appeal Tribunal found that appellant had been applying for jobs since June 2005, using the company computer while at work. The Tribunal also found that Foxtons had started searching for a replacement for appellant by the end of July because of appellant's extensive personal internet use. The Appeal Tribunal found the testimony of appellant's supervisor to be credible, particularly the testimony that appellant's production was suffering because of her extensive use of the internet for personal reasons and that the supervisor had spoken with her regarding her use of the internet and lack of productivity. Further, the Tribunal determined that the supervisor was credible in his statement that he had been in the process of discharging her before the complaint was served. Lastly, the Tribunal decided that appellant's actions violated Foxtons' policy regarding the use of the internet which was the cause of discharge and concluded that appellant's actions were, "in willful disregard of the employer's interest and constituted misconduct connected with the work." Consequently, the Appeal Tribunal held that appellant was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b) from August 21, 2005 through October 1, 2005 and liable for a refund of $966 in benefits received. On July 19, 2006, the Board of Review affirmed the decision of the Appeal Tribunal and this appeal ensued.

Appellant claims that the Board erred in affirming the decision of the Appeal Tribunal, arguing that she was terminated not for misconduct connected with the work, but in retaliation for exercising her legal rights by suing Foxtons. Appellant points out that the summons and complaint alleging fraud were served on Foxtons on the same day she was terminated. In her brief, she reiterates her testimony from the prior hearings that she had received no words of reprimand regarding any non-productive behavior but, in fact, had received a promotion in July.

We begin our consideration of appellant's argument by restating the applicable legal principles. N.J.S.A. 43:21-5(b) sets forth a disqualification for unemployment compensation benefits as follows:

An individual shall be disqualified for benefits:

(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 (in addition to the waiting period), as determined in each case . . . .

The term, "misconduct" is undefined in the statute. Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979). "Judicial attempts to imbue the term with substantative meaning have, however, insisted upon the ingredients of willfulness, deliberateness and intention if an employee's act is to qualify as misconduct." Ibid.

We attempted to define the abstract term "misconduct" in general and non-exclusive terms in Beaunit Mills v. Bd. of Review:

Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct 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.

[ 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957).]

"This definition sets forth alternative bases for findings of misconduct and does not require multiple acts to constitute statutory misconduct." Smith v. Bd. of Review, 281 N.J. Super.

426, 431 (App. Div. 1995). "Misconduct" has been held to include deliberate refusal to comply with an employer's reasonable work rules. See generally Broderick v. Bd. of Review, 133 N.J. Super. 30, 33 (App. Div. 1975).

N.J.A.C. 12:17-10.2(a), however, defines "misconduct" for purposes of N.J.S.A. 43:21-5(b) as follows:

For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.

The Supreme Court in Brady v. Bd. of Review has outlined our scope of review in matters such as this:

The judicial capacity to review administrative agency decisions is limited. Public Serv. Elec. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985) (citation omitted). Moreover, "[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the [fact-finder] could reasonably so conclude upon the proofs." Charatan v. Board of Review, 200 N.J.Super. 74, 79 (App. Div. 1985) (citations omitted); see also Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) ("Appellate courts must defer to an agency's expertise and superior knowledge of a particular field. Thus, if substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result.") (citations omitted). If the Board's factual findings are supported "by sufficient credible evidence, courts are obliged to accept them." Self v. Board of Review, 91 N.J. 453, 459 (1982); Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 28-29 (1981) (same).

Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. See In re Warren, 117 N.J. 295, 296 (1989). The Court "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. v. Turnpike Auth., 137 N.J. 8, 27 (1994).

[ 152 N.J. 197, 210 (1997).]

Appellant argues that the Appeals Tribunal opinion, affirmed by the Board, is in error, that the testimony of Foxtons' representatives was not true and that appellant was, in fact, terminated in retaliation for her suing her employer for fraud. Our scope of review in this case is limited to whether the factual findings made by the Appeal Tribunal and affirmed by the Board are supported by sufficient credible evidence. A review of the hearings, and particularly the January 19, 2006 hearing, provides more than a sufficient basis for concluding that the Appeal Tribunal's factual findings are supported by sufficient credible evidence.

The Appeal Tribunal found the representatives of Foxtons to be credible, particularly with respect to their testimony regarding appellant's use of the internet for personal reasons during work hours, the lack of appellant's productivity beginning in July, the fact that there was a warning given to her and that Foxtons was in the process of discharging her before the complaint was served. These findings all support the Tribunal's determination that appellant was terminated, not in retaliation for the filing of the suit, but for violating the company's internet use policy and for her lack of productivity.

We recognize that appellant does not agree with the factual findings of the Appeal Tribunal and that the transcript reveals the parties' divergent views concerning the reasons why appellant was terminated. As stated in Brady, however, in reviewing factual findings, the test is not whether we would come to the same conclusion if the original determination was ours to make, but whether the fact-finder could reasonably conclude as he or she did based upon the proofs. We hold that, based upon the evidence, the fact-finder could reasonably conclude that appellant intentionally violated the company's internet policy and was devoting substantial time to finding new employment knowing that a lawsuit was about to be filed by her against her employer.

Lack of productivity and violations of a company's internet policy would certainly qualify as misconduct within the meaning of the Unemployment Compensation Act. Such conduct is improper, in willful disregard of an employer's interest, a deliberate violation of the employer's rules, shows disregard for the standards of behavior which an employer has the right to expect from his employee, and evidences an intentional, substantial indifference towards the employee's duties and obligations to the employer. See Beaunit Mills, supra, and N.J.A.C. 12:17-10.2(a).

Because we find no error in the Board's conclusion that appellant was discharged for misconduct connected with the work pursuant to N.J.S.A. 43:21-5(b), we also find no error in the order for reimbursement of $966 in benefits received. See N.J.S.A. 43:21-16(b) and Bannan v. Bd. of Review, 299 N.J. Super. 671, 674-75 (App. Div. 1997).

 
Consequently, we affirm the decision of the Board of Review in all respects.

(continued)

(continued)

11

A-0303-06T5

July 10, 2007