JOSEPH H. GARLANGER v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5201-11T1

JOSEPH H. GARLANGER,

Appellant,

v.

BOARD OF REVIEW, and

PRIDE INDUSTRIES, INC.,

Respondents.

____________________________________________

September 10, 2013

Argued August 6, 2013 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the Board of Review, Department of Labor, Docket No. 337,767.

Joseph M. Pinto argued the cause for appellant (Polino and Pinto, P.C., attorneys; Mr. Pinto, on the brief).

Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).

PER CURIAM

Petitioner Joseph H. Garlanger appeals from the May 31, 2012 final decision of the Board of Review (Board), affirming the decision of an Appeal Tribunal, denying Garlanger's claim for unemployment benefits. We affirm.

Garlanger was employed as a tractor operator for Pride Industries, Inc. (Pride) for approximately ten months. His employment was terminated for violating the company's standards of conduct, including workplace violence. After Garlanger filed a claim for unemployment benefits, a deputy to the Director of the Division of Unemployment and Disability Insurance (Division) found him disqualified for benefits because his actions constituted simple misconduct and a willful and deliberate disregard of the standards of behavior his employer had a right to expect.

Petitioner appealed. Before the hearing began, the appeals examiner notified the parties that she would not be bound by the prior determination of simple misconduct and would also consider whether petitioner's conduct constituted severe misconduct.

Pride's human resources (HR) director, Doris Fowers, testified to petitioner's prior infractions. On November 10, 2010, petitioner was issued a written warning for being rude to an employee or a customer; on January 15, 2011, he was issued a verbal warning for safety violations stemming from an incident in which he backed up a truck into a salt dome, damaging both the truck and the dome itself; and on January 25, 2011, he was issued a written warning for "walking off or not following the instructions to do what he had been assigned to do that day and going off and doing something else." Petitioner was asked to sign these warnings when issued, but refused.

The incident which led to petitioner's termination occurred on April 27, 2011. Petitioner had received notice from the Burlington County Probation Office that a wage garnishment of $120 would be implemented due to an unrelated matter. Petitioner was given a letter from Pride explaining the terms of the court-ordered wage garnishment. The letter indicated $130 would be deducted from petitioner's paycheck. Petitioner became upset, as he felt the garnishment should be limited to $120, and went to the administration building.

Samantha Gralla, a rehabilitation counselor who works with and advocates for disabled employees, testified she shared an office with Heather Algarin, a Human Resources Assistant at Pride. Gralla was in the office when petitioner "burst into the door, screaming . . . got into Algarin's face . . . very close proximity to her face . . . screaming about these garnishes." Gralla testified "we really couldn't get too much information out of him at the time regarding the garnishment because he was so upset about it." Gralla described petitioner's voice as being "very raised" and "a different tone . . . very intense tone . . . and [] something [we] weren't familiar with based

. . . on . . . the past visits, that this was something more

. . . a little more intensive [than] we've seen before."

At this time, John Irwin, another Pride employee, was near the HR office. When petitioner saw Irwin, he yelled at him, "thanks for showing up this morning mother fucker." Petitioner repeated the expletive, and began walking toward Irwin, who was standing in the hallway just outside of the office. Irwin testified he felt "extremely threatened and started getting angry [him]self." Ms. Gralla stepped in between the two men and closed the door separating them, to diffuse the situation. Gralla described petitioner's actions as he "switched his focus from Ms. Algarin to Mr. [Irwin] and . . . was very close to him getting physically combative, it seemed like his hands were about to go up and his body language completely shifted and changed." Gralla closed the door to prevent anything from happening between the two men. After closing the door she realized the danger of locking herself and others in the office with petitioner.

Throughout the ordeal, petitioner was screaming that he "was going to sue Ms. Algarin and the company and that Mr. Irwin was worthless and used other profane language and calling both of them names . . . among a lot of other things." Irwin testified he stayed in the hallway until petitioner left the building because he was concerned for the safety of those in the office. Irwin "wanted to make sure that it didn't get physical so [he] stayed there until . . . [petitioner] left the building." Ms. Gralla testified she had worked with petitioner in the past and that "his actions were absolutely amplified in this incident," and that "safety was . . . a threat at the time."

After petitioner slammed the door, left the building and drove off, Ms. Algarin immediately went to Ms. Fowers office "red face and [with] tears and shaking," and explained what had just occurred. Fowers testified Algarin was "so upset and she was afraid that petitioner was going to harm her and that she was scared to death." The next morning, Pride contacted the police and had police officers on hand because "so many people were worried that petitioner would do something." Ms. Fowers, Ms. Gralla and several other members of the management team discussed the issue and decided to terminate petitioner's employment because the incident "pretty much took it over the top . . . . [They] felt that because it was such a safety concern this wasn't something that we could support any longer." On April 28, 2011, the day after the incident, Ms. Fowers, with police present, met with petitioner and terminated his employment as a result of the incident.

Petitioner testified that he was upset about the ten dollar discrepancy in the garnishment but denied any type of threatening or improper behavior. He claimed Pride was trying to get rid of him because he wrecked one of their trucks.

In a written opinion, the appeals examiner found petitioner's "inappropriate and threatening manner rises to the level of severe misconduct." The examiner found petitioner indefinitely disqualified for unemployment insurance benefits pursuant to N.J.S.A. 43:21-5(b).

Petitioner appealed and the Board affirmed the Division's findings. On appeal, appellant presents the following arguments:

I.

CLAIMANT'S ACTIONS DO NOT CONSTITUTE MISCONDUCT AS DEFINED BY THE UNEMPLOYMENT COMPENSATION LAW IF THEY WERE CAUSED BY AND ARE A CONSEQUENCE OF HIS MENTAL DISABILITY.

A. STANDARD OF REVIEW.

B. ACTIONS GENERATED BY MENTAL ILLNESS ARE NOT WILLFUL, DELIBERATE OR INTENTIONAL AND, THEREFORE, DO NOT CONSTITUTE MISCONDUCT.

II.

THE SECOND APPEALS EXAMINER'S REFUSAL TO REQUIRE THE EMPLOYER TO PRODUCE THE DOCUMENTS ORDERED BY THE FIRST APPEALS EXAMINER WAS ARBITRARY AND CAPRICIOUS AND PREJUDICED CLAIMANT'S RIGHT TO A FAIR HEARING.

III.

CLAIMANT'S ACTIONS SHOULD NOT HAVE BEEN DETERMINED TO BE SEVERE MISCONDUCT.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "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. Co. v. N.J. Tpk. Auth., 137 N.J.8, 27 (1994). The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); seealso Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

We may not engage in our own assessment of evidence as though we are the court of first instance. In re Taylor, 150 N.J.644, 646 (1999). Likewise, the credibility of witnesses is a matter left to the administrative agency, and we are obliged to accept the agency's findings so long as they are supported by sufficient credible evidence. Brady, supra, 152 N.J.at 210.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A.43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Yardville Supply Co. v. Bd. of Review, 114 N.J.371, 375 (1989). Although the Act is remedial in nature, it is the claimant who bears the burden of proving entitlement to benefits. Brady, supra, 152 N.J. at 218. "The basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J.at 374.

Petitioner argues his actions cannot constitute misconduct as they were a result of mental illness and thus do not satisfy the legal definition of misconduct. He further argues the New Jersey Administrative Code, as well as prior case law, requires an element of deliberation, willfulness, or intent to be present in order for an action to constitute misconduct and the presence of petitioner's disorders rendered him incapable of the requisite mental state to commit misconduct.

The New Jersey Administrative Code supplies a comprehensive definition of misconduct as it applies to job termination

(a) 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.

(b) To sustain disqualification under this section, the burden of proof is on the employer to show that the employee's actions constitute misconduct.

. . . .

(c) "Connected with the work" means not only misconduct that occurs in the course of employment during working hours, but includes any conduct which occurs after working hours or off the employer's premises where there is substantial evidence that the conduct adversely impacts the employer or the individual's ability to perform the duties of his or her job.

[N.J.A.C. 12:17-10.2.]

Further, the Code specifies when misconduct may lead to discharge:

(a) An individual shall be considered to have been discharged for an act of misconduct where it is established that he or she has committed an act of misconduct as defined in N.J.A.C. 12:17-10.2 and met one of the following:

. . . .

3. Violated a reasonable rule of the employer which the individual knew or should have known was in effect.

[N.J.A.C. 12:17-10.6.]

Although petitioner concedes his actions were inappropriate, he argues the final element of the Code's definition of misconduct cannot be met as his actions were not "within the individual's control," due to his mental illness. Petitioner cites examples from other states in which those with mental diseases have been cleared of misconduct and entitled to unemployment benefits. See Steele v. Emp't Dep't, 923 P.2d 1252 (Or. Ct. App. 1996) (determining employee did not commit misconduct when missing work for two consecutive days due to alcoholism, as alcoholism is a recognized mental disease in Oregon); James v. Lemmon, 629 S.E.2d 324 (N.C. Ct. App. 2006) (missing work or not being able to complete certain tasks due to a mental disability was not a wanton disregard of employer's rules and therefore was not misconduct).

The cases cited by petitioner are not relevant to the disposition of this case because in each instance, statutory exceptions existed which allowed for disparate treatment towards those afflicted with mental conditions. New Jersey does not have such a statutory exception.

Petitioner never established a causal link between his actions of April 27, 2011, and his mental illnesses. Instead, he focused on verifying that Pride was aware of his disorders, a point conceded by Pride. Petitioner implied that the existence of his mental condition alone was enough to establish he did not have control of his actions.

Petitioner argues that even if we find misconduct, the appeals examiner's determination that petitioner's actions rose to the level of severe misconduct is improper. We disagree. N.J.S.A. 43:21-5(b), provides certain distinguishing examples between simple and severe misconduct:

Examples of severe misconduct include, but are not necessarily limited to the following: repeated violations of an employer's rule or policy . . . threats that do not constitute gross misconduct . . . or where the behavior is malicious and deliberate but is not considered gross misconduct.

Doris Fowers testified that petitioner had received several prior written and verbal warnings about his behavior. Pride attempted to work with petitioner to rectify his behavior at work; however, in this instance he "crossed the line" and Pride was no longer willing to employ petitioner.

The appeals examiner found the testimony of Pride's witnesses were "consistent and are considered more credible than the claimant." Based on this credible testimony, the appeals examiner found petitioner repeatedly violated Pride's rules of conduct.

We find no abuse of discretion with the examiner's finding that petitioner's actions amounted to severe misconduct because he acted in a threatening manner. Threats need not be specifically verbalized in order to be actionable and result from conduct or implication. Petitioner stormed into Pride's HR office, began screaming at an assistant, confronted and had to be separated from another employee and used profane language. It is significant that every testifying witness felt their personal safety was in danger as a result of petitioner's conduct.

We find the petitioner's remaining argument lacks sufficient merit to warrant a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

The documents that were not provided to petitioner would not have changed the outcome. Petitioner was free to provide medical records or other evidence that might support his claim that his conduct was a function of his mental condition. The appeals examiner correctly determined the employee handbook was irrelevant because "it is common sense that an employee cannot yell, curse or act in a threatening manner towards others."

We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that petitioner's conduct amounted to severe misconduct.

Affirmed.