RONALD J. MAZZEO v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONALD J. MAZZEO,
 

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and ACME MARKETS, INC.,

Respondents.

______________________________________________

August 4, 2014

Before Judges Ashrafi and St. John.

On appeal from the Board of Review, Department of Labor, Docket No. 363,217.

Ronald J. Mazzeo, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert Strang, Deputy Attorney General, on the brief).

Respondent Acme Markets, Inc. has not filed a brief.

PER CURIAM

Appellant Ronald Mazzeo appeals from the July 26, 2012 final decision of the Board of Review (Board), which affirmed the decision of the Appeal Tribunal (Tribunal) finding Mazzeo disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(b) for misconduct. We conclude the Board's decision was adequately supported by the facts in the record and consonant with the applicable statutory provisions and, therefore, we affirm.

We discern the following facts from the record, which includes a testimonial hearing conducted via telephone by the Tribunal on April 12, 2012. Mazzeo was employed by Acme Markets, Inc. as a produce manager, and later as an associate, from April 1, 1975 to October 17, 2011, when he was suspended without pay. Following an investigation by Acme, he was discharged on November 3, 2011.

Two incidents form the basis for Mazzeo's discharge. The first incident involved an alleged physical contact with a female employee. Mazzeo testified that a female employee alleged that he "inappropriately touched her in the back hallway," but that "he had no conception of ever touching her." He could not recall the date of the incident, but recalled that they were in "tight quarters" and he "might have bumped into her" when they walked through the door. He explained that if he had touched her it was accidental.

The second incident occurred on October 8, 2011 when Mazzeo made a comment to a male co-worker to the effect of "[b]end over and get a jar of Vaseline." Mazzeo testified that the comment was directed towards the young co-worker and "it was just a joke, no one was supposed to hear it, it was a really slow day." Mazzeo claimed he had "no idea" anyone else was within earshot; however, a customer heard the statement and issued a complaint to management.

Mazzeo was suspended from Acme without pay on October 17, 2011, and filed a claim for unemployment benefits on October 30. Following an investigation by Acme, Mazzeo was discharged on November 3. On November 23, a Deputy for the Division of Unemployment and Disability Insurance found Mazzeo disqualified for benefits from October 30 because he was discharged for "severe misconduct connected with the work." The Deputy determined the disqualification would continue until Mazzeo "worked four or more weeks in employment and earned at least six times his weekly benefit rate."

Mazzeo appealed the Deputy's decision to the Tribunal and a hearing was conducted via telephone on April 12, 2012. In a decision mailed on April 17, 2012, the Tribunal modified the decision of the Deputy and imposed a partial disqualification for benefits under N.J.S.A.43:21-5(b) for the time period from October 16, 2011 through December 10, 2011.

In its decision, the Tribunal noted "the claimant worked in areas along with the customers and needed to be aware of others sensibilities as a representative of the employer." It determined that "claimants action leading to his termination which he admits to was an isolated incident without prior warnings and would not rise to the level of severe misconduct."

Appellant appealed the decision of the Tribunal to the Board and, in a decision mailed on July 26, 2012, the Board affirmed the decision of the Tribunal. This appeal ensued.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J.182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J.571, 579 (1980)). "'[I]n reviewing the factual findings made in an unemployment compensationproceeding, 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.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid.(quoting Self v. Bd. of Review, 91 N.J.453, 459 (1982)). Unless the agency's action "was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Ibid.

"An individual shall be disqualified for benefits . . . [f]or the week in which the individual has been suspended or discharged for misconductconnected with the work, and for the seven weeks which immediately follow that week, as determined in each case." N.J.S.A.43:21-5(b). In order to avoid disqualification, the claimant has the burden of establishing that his or her departure was for good cause related to work. Brady, supra, 152 N.J.at 218.

"Misconduct" is defined 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). We have defined "misconduct" to 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.

[Borowinski v. Bd. of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J.579 (1957)).]

The Tribunal found, and the Board affirmed, that appellant was discharged for misconduct connected with the work. The Tribunal reasoned that "claimants manner of speech which led to his termination was: improper, intentional, connected with his work, within the claimant's control, a deliberate violation of the employer's rules and a disregard of standards of behavior which the employer has the right to expect of an employee."

Accordingly, we are satisfied there was sufficient credible evidence in the record to support the Board's decision that appellant was discharged for misconduct connected with the work and was disqualified for benefits under N.J.S.A.43:21-5(b) as of October 16, 2011 through December 10, 2011.

Affirmed.