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December 10, 2014


Submitted October 21, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from the Board of Review, Department of Labor, Docket No. 335,672.

Van Syoc & Weintraub, LLC, attorneys for appellant (Heidi R. Weintraub, on the brief).

Law Offices of Agre & Jensen, attorneys for respondents Jeffrey E. Jenkins and Eric J. Clayman (Robert N. Agre, of counsel and on the brief, AnnMarie Jensen, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Anthony DiLello, Deputy Attorney General, on the statement in lieu of brief).


Diannajean S. Giganti (Giganti) appeals from a final decision of the Board of Review (Board), finding her disqualified for unemployment benefits as a result of severe misconduct in her workplace. Since we find the Board's decision was rooted in facts in the record and consistent with relevant statutory provisions, we affirm.

Giganti, a licensed attorney, was employed by Jenkins & Clayman (employer) for about nine years until she was terminated on March 6, 2011, for substandard work. On December 27, 2010, a trustee reported after a meeting that Giganti was late, disruptive and appeared to be intoxicated. Stemming from the bankruptcy trustee report, from February 14, 2011, through her discharge date, Giganti was placed on an employer-imposed thirty-day probation period.

Giganti was provided a written statement memorializing the decision and how her probationary period would work. Specifically, Giganti was cited for: taking long lunches and returning to work intoxicated; arriving late to client, trustee and court appearances; leaving paperwork incomplete or poorly done; and instructing office staff to get liquor for her during work hours to consume and keep in her office. The employer's Senior Partner Jeffrey Jenkins informed her that she could no longer fraternize with office staff, must be on time for all meetings and appearances, and could not drink alcohol during work hours.

During the probation period, clients complained about Giganti's work performance and conduct. According to co-workers, Giganti continued to drink at work while interacting with clients. The co-workers testified they often smelled alcohol on her breath in the morning and after lunch. Co-workers also observed Giganti "take shots" in her office, the file room, the bathroom, and behind a local food market.

Giganti disputed she abused alcohol during her employment. She claimed she only imbibed alcohol while in the office on three specific occasions for special events such as a baby shower or going-away party. At the Tribunal hearing, she produced a witness who was formerly employed by the law firm as a paralegal. The witness testified Giganti had gone through marital issues, distressing her. The witness further testified Giganti never drank in the workplace aside from three specific occasions, and she was never intoxicated while interacting with clients nor did she ever ask any staff to purchase alcohol. On her behalf, Giganti alleged that during her probation period she was told she had nothing to worry about and was doing an "excellent job." Giganti also contended that her termination was in retaliation for a sexual harassment claim she previously brought against the law firm.

On May 13, 2011, Giganti filed a claim for unemployment benefits. The Deputy Director determined that Giganti was disqualified as a result of her severe misconduct. Giganti appealed the Deputy's determination. An in-person hearing before the Tribunal was conducted on October 4, 2011.1 At the hearing's conclusion, the examiner awarded unemployment compensation benefits and reversed Giganti's discharge, "as the claimant was not discharged for misconduct connected with the work." The employer appealed to the Board.

On appeal, in a written opinion, the Board reinstated the discharge decision finding

The primary accusation leveled against the claimant around which all of the other allegations of poor work performance revolve, is that she drank and was intoxicated on the job. In our view, this charge is amply supported by the employer's witnesses. Particularly compelling is the testimony of the young secretary who related how the claimant would regularly send her to a nearby liquor store to buy vodka to drink in the office and this at a time when the witness was too young to legally make the purchase.

The Board rejected Giganti's sexual harassment retaliation claim and highlighted the credence given to the law firm for imposing a probationary period before termination. Because "excessive use of alcohol at work" by statute is an element of severe misconduct, the Board found that Giganti was disqualified from benefits. N.J.S.A. 43:21-5(b). Based on its determination of ineligibility, the Board found Giganti was required to refund benefits she received from March 26, 2011 through April 2, 2011.

Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We defer to factual findings where supported by sufficient credible evidence. Ibid. "'[T]he 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 factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

A reviewing court will intervene only if the challenged action was arbitrary, capricious or unreasonable, or "clearly inconsistent with [the agency's] statutory mission or with other State policy." Ibid. (citations and internal quotation marks omitted). In sum, the scope of appellate review is confined to determining whether the agency decision offends the State or Federal Constitution; whether such action violates legislative policies; whether the record contains substantial evidence to support the agency's factual findings; and, lastly, whether the agency, in applying legislative policies to the facts, clearly erred in reaching a conclusion that could not reasonably have been made. Id. at 210-11.

Our decision is guided by fundamental principles of law governing unemployment compensation. The Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30 (the Act), is designed primarily to lessen the impact of unemployment that befalls workers without their fault. Brady, supra, 152 N.J. at 212. "The public policy behind the Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989).

The Act addresses grounds for disqualification for benefits. An individual shall be 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 seven weeks which immediately follow that week, as determined in each case.

For the week in which the individual has been suspended or discharged for severe misconduct connected with the work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case. Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.

[N.J.S.A. 43:21-5]

"[M]isconduct has been held to include deliberate refusal to comply with an employer's reasonable work rules." Smith v. Bd. of Review, 281 N.J. Super. 426, 431 (App. Div. 1995)(citing Broderick v. Bd. of Review, 133 N.J. Super. 30 (App. Div. 1975)). The agency rule defines misconduct.

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.

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

As we noted in Silver v. Board of Review, 430 N.J. Super. 44, 53 (2013), this rule "constitutes the controlling authority for disposition of claims based on misconduct." In the absence of the adoption of new regulations distinguishing simple misconduct from severe misconduct we construe the examples of severe misconduct as requiring acts done intentionally, deliberately and with malice. Id. at 54-55.

The Board, in reaching its finding, conducted a plenary de novo review of the hearing before the Tribunal. Messick v. Bd. of Review, 420 N.J. Super. 321, 325-26 (2011). The Board rejected the decision of the Tribunal "out of hand" as "grossly mischaracter[izing] the evidence presented" as entirely hearsay. The Board noted the hearing presented "two opposing narratives." Four witnesses testified on behalf of the employer; three of whom testified about Giganti's drinking on the job, her tardiness and her failure to perform her work in a timely manner. They also testified that Giganti's drinking continued during the probationary period. In opposition, Giganti and a formerly employed paralegal, who left prior to Giganti's probationary period, testified she did not abuse alcohol on the job.

We have noted that misconduct is

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.

[Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009)(quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956)(quoting 48Am. Jur. Soc. Sec., Unemployment Comp. 38 at 541 (1943)), certif. denied, 23 N.J. 579 (1957))].

Misconduct is not "mere mistakes, errors in judgment or in the exercise of discretion, or minor but casual or unintentional carelessness or negligence, and similar minor peccadilloes." Beaunit Mills, Inc., supra, 43 N.J. Super. at 182.

Here, the conduct engaged in by Giganti was determined by the Board to constitute severe misconduct. We conclude the finding that Giganti violated the clear and expressed rules established by her employer even when placed on a zero tolerance probationary period was supported by substantial and credible evidence. Her excessive and repetitive drinking while on the job alone satisfied the statutory example of "severe misconduct." Further, when considering the totality of Giganti's conduct, as the Board determined, there is no basis to conclude the conduct was the product of negligence or inadvertence. Applying our standard of review, we conclude the Board's decision was not erroneous.


1 The decision's reference to a "telephonic hearing" was in error.