JAYSON SAPORITO v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5021-12T1

JAYSON SAPORITO,

Appellant,

v.

BOARD OF REVIEW, and PUBLIC

SERVICE ELECTRIC AND GAS

COMPANY,

Respondents.

____________________________________

August 4, 2014

Submitted July 22, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the Board of Review, and Public Service Electric and Gas Company, Docket No. 411,065.

Smith Eibeler, LLC, attorneys for appellant (Christopher J. Eibeler, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief).

Respondent Public Service Electric and Gas Company, has filed a brief.

PER CURIAM

Jayson Saporito appeals from a final decision of the Board of Review, which found that he is disqualified from unemployment compensation benefits for severe misconduct related to his work. We reverse.

This appeal arises from the following facts. Saporito worked for Public Service Electric & Gas Company (PSE&G) as a utility mechanic. Saporito began working for the company in September 1999. He was terminated as of October 22, 2012, because the previous week, he was involved in an accident with a company vehicle.

Saporito filed a claim for unemployment benefits, and a deputy in the Division of Unemployment Insurance determined that Saporito was disqualified for benefits under N.J.S.A. 43:21-5(b) because he was discharged for severe misconduct related to the work. Saporito sought review of the deputy's determination by the Appeal Tribunal. A hearing on the appeal was conducted on February 13, 2013.

At the hearing, Richard Moeller of PSE&G explained that Saporito had been operating a company vehicle and struck the vehicle in front of him, causing extensive damage to that vehicle. Moeller said that Saporito was at fault because "striking another vehicle from behind is hard to explain otherwise." Moeller noted that the PSE&G vehicle also was damaged in the collision.

Saporito told Moeller that the car in front of his vehicle slammed on its brakes. Saporito tried to miss the car. He claimed that the car in front had no brake lights. Moeller noted that the police report indicated that the car had heavy damage to its rear end, and the front end of the PSE&G vehicle also was damaged. The police report indicated that Saporito was primarily at fault for causing the accident. There was no mention of faulty brake lights in the police report.

Moeller further testified that PSE&G employees typically receive a copy of the company's policy handbook, but he did not have a signed receipt indicating that Saporito had been provided with the handbook. He stated that Saporito had previously been given written "reminders" about an altercation on the job with another employee and his attendance record.

In addition, Saporito had received a written warning in January 2012 because he was operating a company vehicle without authorization, and was involved in an accident while doing so. Saporito was interviewed concerning the accident. He said he struck another vehicle and acknowledged that had been using the company car while not working. Moeller explained that employees are only allowed to use company vehicles "for work purposes."

Saporito testified that the October 2012 accident occurred because the car in front of his vehicle stopped short and swerved to avoid another car that had stopped short. Saporito said that he tried to go around the car in front of his vehicle, but "[t]he guy behind me came flying [by] me and cut me off. So I swerved to the right to avoid the other car."

Saporito stated that the car directly in front of his vehicle did not have any brake lights, but he did not mention this to the police officer because he was "all like blurry and everything[.]" Saporito was asked why he did not have enough time to brake to avoid hitting the car in front of his vehicle. He said it was because he was going to go around the car, which "kind of threw [him] off[.]"

Saporito stated that he assumed he had received a company policy handbook, but he did not know where it was. Saporito admitted that he had received a written warning for operating the company vehicle without permission and getting involved in an accident. He explained that he did not tell the company he was going to pick up his work truck. Saporito went to the company's shop nearby. A female driver was at a gas station and she "came flying out of the gas station." Saporito tried to avoid her, but "clipped the side of her car." Saporito claimed that the police never determined who was at fault in this accident. Saporito said he was disputing the company's determination that he was at fault in the second accident, and the union had filed a grievance on his behalf.

The Appeal Tribunal issued its decision on February 20, 2013. The appeals examiner determined that Saporito was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b) for severe misconduct connected with the work. The appeals examiner found that Saporito's position as a utility mechanic required that he drive the company's vehicles safely.

The appeals examiner wrote, "In this case, the motor vehicle that the claimant rear-ended did not have functional brake lights. However, had the claimant been driving at a safe distance behind the vehicle and been attentive to traffic patterns, the accident would not have occurred."

The appeals examiner also wrote that Saporito had been involved in two at-fault accidents with a company vehicle. The hearing officer pointed out that Saporito drove in the unsafe manner after previously receiving a written warning. He found that Saporito had acted in deliberate disregard to the standards of behavior the company had a right to expect.

Saporito appealed the appeals examiner's decision to the Board, which issued its final decision in the matter on May 9, 2013. The Board found that Saporito had been afforded a full and impartial hearing. The Board upheld the Appeal Tribunal's finding that Saporito was disqualified for benefits because he had been discharged for severe misconduct connected with the work.

Saporito filed a notice of appeal to this court on June 20, 2013. The Board thereafter filed a motion for a remand so that the Board could reconsider its decision in light of Silver v. Board of Review, 430 N.J. Super. 44, 55 (App. Div. 2013). We denied the motion.

On appeal, Saporito argues that the evidence did not establish that he committed misconduct connected with the work. He contends that the appeals examiner's findings of fact have no support in the record and are contrary to the undisputed evidence.

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 action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. Co. 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 [we] would come to the same conclusion if the original determination was [ours] 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)). If the agency's "factual findings are supported 'by sufficient credible evidence, [we] are obligated to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

Since its inception in 1936, the New Jersey Unemployment Compensation Law has disqualified employees from unemployment benefits if they have been suspended or discharged for "misconduct" or "gross misconduct." Silver, supra, 430 N.J. Super. at 48 (citing N.J.S.A. 43:21-5(b)). In 2010, the statute was amended to add a third category of misconduct, specifically "severe misconduct." Ibid. (citing L. 2010, c. 37, 2).

The statute prescribes different periods of disqualification for the misconduct involved. Id. at 49 n.4. "Misconduct" results in the employee's disqualification for the week of suspension or discharge and the seven weeks that immediately follow. Ibid. After suspension or discharge for "severe misconduct," the employee is ineligible for benefits until he becomes re-employed for a period of four weeks and earns six times the individual's weekly benefit rate. Ibid. In cases involving "gross misconduct," no benefits are paid from the employer's account, and the employee is disqualified until he has eight weeks of new employment and earns ten times the weekly benefit rate. Ibid.

The statute defines "gross misconduct" as an act punishable as a first, second, third or fourth-degree offense. N.J.S.A. 43:21-5(b). The term "misconduct" is not defined. However, the Department of Labor and Workforce Development (Department) has adopted a regulation defining that term as an act 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(a).

In addition, the term "severe misconduct" is not defined in N.J.S.A. 43:21-5(b). Instead, the statute provides a non-exclusive list of examples of such conduct:

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).]

In Silver, we noted that although the Department's regulation pertains only to simple misconduct, that term should have the same meaning throughout N.J.S.A. 43:21-5(b) and the implementing regulation. Silver, supra, 430 N.J. Super. at 55. We also noted that two of the examples of "severe misconduct" in the 2010 amendment to the statute described conduct that is not necessarily deliberate, intentional or malicious. Ibid. Those examples are "repeated violations of an employer's rule or policy" and "repeated lateness or absences after a written warning." Ibid.

We concluded that in the 2010 amendment, the Governor and the Legislature intended that "severe misconduct" would be "a gap-filler between simple misconduct and gross misconduct." Ibid. We said that it made no sense to allow conduct with a lower level of culpability, such as mere inadvertence or negligence "to qualify as severe misconduct and carry with it a harsher sanction than simple misconduct." Ibid.

We therefore held that the two examples of misconduct mentioned required "acts done intentionally, deliberately, and with malice." Ibid. We said that because these two types of misconduct require repeated violations, "such a construction would render the conduct more egregious than simple misconduct, which could result from a single such violation committed intentionally and with malice." Id. at 56. We stated that we understood the terms "'intentional' and 'malicious' as used in the regulation to include deliberate disregard . . . of the standards of behavior that the employer has the right to expect of an employee." Ibid.

We are convinced that, in view of our decision in Silver, the Board's decision cannot stand. Here, the appeals examiner found that Saporito was discharged for "severe misconduct" because he deliberately violated standards his employer had a right to expect. The examiner found that Saporito drove the company vehicle in an unsafe manner, and was involved in two vehicular accidents, despite a prior warning from his employer. The Board accepted these findings.

However, even if we assume that Saporito twice disregarded his employer's requirement that he drive the company's vehicles in a safe manner, the evidence failed to establish that he did so deliberately, intentionally or maliciously. The evidence shows that Saporito may have driven the company vehicle negligently, but his conduct does not constitute "misconduct" as that term is defined in the Department's regulation, or "severe misconduct" as we defined that term in Silver.

In view of our decision, we need not address Saporito's contention that there was insufficient evidence in the record to support the hearing examiner's finding that he was at-fault in the two accidents.

Reversed.