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OF LABOR and F.L., t/a F.T.1,



December 19, 2014


Submitted November 18, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Board of Review, Department

of Labor.

Isabella Basile, appellant pro se.

Greg Riley, attorney for respondent F.L., t/a F.T.

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


Isabella Basile ("Basile") appeals from a final determination of the Board of Review (the "Board") dated December 26, 2012, which found that she is disqualified for unemployment compensation benefits for severe misconduct connected to the work, pursuant to N.J.S.A. 43:21-5(b). We affirm.

Basile was employed as a server at a restaurant in Whitehouse Station. Her employment there began on July 1, 2011, and ended on January 27, 2012, when she was discharged. Basile applied for unemployment compensation benefits, and a deputy in the Division of Unemployment Insurance of the New Jersey Department of Labor found that Basile was eligible for benefits because she left her job for good cause attributable to the work. Her employer appealed that determination, and on August 29, 2012, the Appeal Tribunal conducted a telephonic hearing in the matter.

E.L. testified that she and her husband, F.L., own the restaurant where Basile worked. E.L. explained that Basile was discharged because she phoned an employee of the restaurant and left a recorded message, stating that F.L. and another employee S.R., were having "some type of sexual relations." E.L. said that Basile's statement was not true. She noted that, in the phone message, Basile also had claimed that S.R. did not do as much work as she did, and Basile threatened "to bring the restaurant down just as easily as she brought it up." The employee who Basile called reported the phone message to E.L. and F.L.

F.L. testified that Basile's statement regarding his alleged sexual relationship with S.R. was not true, and it "kind of ruined" his marriage. F.L. said that two days before Basile was fired, they had a disagreement when he told her to sweep the floor. She "got a little attitude" and told him she swept the floor that morning. F.L. stated that customers had complained about Basile because she told them her personal problems. He also said there had been disagreements as to the sequence in which the food should be served.

S.R. testified that she heard the recording of Basile's phone message. She denied that she was in any personal relationship with F.L. She noted that, in the phone message, Basile also said that S.R. had been involved in relationships with other co-workers. S.R. said this also was not true.

A recording of the phone message was played for the appeals examiner. S.R. then testified that, after she heard the recording, she confronted Basile. Basile denied saying that S.R. and F.L. were having a sexual relationship. Basile told S.R. that she thinks "of you guys as family[.]" Basile said she would never interfere with E.L.'s and F.L.'s marriage.

Basile admitted that it was her voice on the recording. She acknowledged that she left the message on the co-worker's voicemail, and apologized for using profanity in the call. She testified that she was uncomfortable working in the restaurant, and stated that F.L. had grabbed her, stabbed knives into the wall, and threw things "all over." Basile said that F.L. had accused her of stealing, and he would always "blurt out" that he was the "boss." She admitted, however, she did not speak to F.L. or E.L. about these complaints. She claimed that she was not able to do so.

Basile further testified that, in the recorded message, she did not state that F.L. and S.R. were having a relationship, only that "it was probable." She said she had reported for work every day on time and never took a day off. She denied that customers had complained about her, and said she never discussed her personal problems at work. She stated that no one told her that customers had complained about her.

E.L. commented that she wanted the salads to be served first, but Basile had insisted upon serving the appetizers first. Basile responded by stating that in a restaurant, "you always" serve the appetizers before the salad. She added that F.L. made statements in front of her "to make [her] feel like [she] was a piece of garbage[.]" He stated that S.R. "was the best waitress in the restaurant and he was going to make her a manager." Basile claimed that F.L. made these statements even though she had been "working [her] butt off as usual."

The appeals examiner found that Basile had been terminated because she made false allegations about a sexual relationship between F.L. and S.R. in the recorded voicemail message. The appeals examiner noted that Basile admitted making the call. The examiner also noted that Basile had disagreed with the owners concerning the manner in which the meals should be served.

The examiner concluded that Basile was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(b). Pursuant to the statute, Basile was disqualified "[f]or 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 re-employed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate[.]" Ibid.

Basile appealed to the Board, which issued a final determination affirming the decision of the Appeal Tribunal. This appeal followed.

Basile argues that: (1) the Board's decision must be reversed because it failed to use the correct legal test to evaluate misconduct; (2) the appeals examiner did not consider whether her actions were malicious or improper; (3) the examiner failed to consider whether the employer's expectations applied to a private conversation between co-employees after work; (4) the examiner did not properly evaluate the alleged misconduct since it did not involve repeat violations; (5) a private after-work comment should not constitute misconduct connected with the work since it would punish a discussion concerning a hostile work environment and dangerous conditions in the workplace; (6) federal labor law protects the discussion of working conditions, dangerous employer actions and hostile work environment; (7) New Jersey law indicates that the disqualification for misconduct cannot be premised on "concerted activity" by employees; (8) misconduct should not reach private conversations between co-workers concerning a hostile work environment, in view of the remedial and humanitarian purposes of the Unemployment Compensation Law; (9) the Board's decision should be reversed because the employer admitted that the termination process started after the claimant reported dangerous activity in the workplace; and (10) the recorded statement is protected against retaliation by the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "in those rare circumstances in which an agency's action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Furthermore, "[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 factfinder could reasonably so conclude upon the proofs." Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

Here, the Board found that Basile was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(b) because Basile engaged in severe misconduct connected with the work. The statute does not define the term "severe misconduct." However, the statute provides that "severe misconduct" includes, but is not limited to

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(b).]

The term "gross misconduct" is defined as the commission of an act that is punishable as a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal justice. N.J.S.A. 43:21-5(b).

Misconduct for purposes of disqualification under N.J.S.A. 43:21-5(b) has been defined by regulation as conduct that is "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. Moreover, we have held that "severe misconduct" under N.J.A.C. 43:21-5(b) requires that the acts be done intentionally, deliberately and with malice. Silver v. Bd. of Review, 430 N.J. Super. 44, 55 (App. Div. 2013).

We are convinced that there is sufficient credible evidence in the record to support the Board's determination that Basile engaged in severe misconduct in connection with her work, thereby justifying her disqualification for unemployment benefits pursuant to N.J.S.A. 43:21-5(b). As noted previously, Basile falsely claimed that F.L. and a co-worker were having a sexual relationship thereby causing marital difficulty between F.L. and his wife. In addition, Basile had threatened to harm the business. The Board properly found that Basile's actions were intentional, malicious, and deliberate. The record supports the Board's finding that Basile acted in disregard of the standards of conduct her employer had a right to expect of its employees.

We have considered all of Basile's contentions and conclude that they are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).


1 In this opinion, we refer to the certain parties and individuals by their initials, to protect their privacy.