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Galante v. Board of Review

July 10, 2007

DIANE GALANTE, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND FOXTONS, INC., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, No. 87-865.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 31, 2007

Before Judges Stern and Lyons.

Appellant, Diane Galante, appeals from a decision of the Board of Review which found her disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(b) and liable for a refund in the sum of $966 for benefits received for the weeks ending August 27, 2005 through September 3, 2005 in accordance with N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Appellant was employed by Foxtons, Inc. ("Foxtons") as a real estate field services coordinator from April 19, 2004 through August 22, 2005. She was discharged for what Foxtons alleged was misconduct connected with her work. Appellant filed a claim for unemployment compensation benefits on August 28, 2005. The determination of the deputy claims examiner was mailed on September 15, 2005. It held appellant disqualified for benefits from August 21, 2005 through October 1, 2005 on the ground that she was discharged for misconduct connected with her work.

A request for a refund from the Director of Unemployment Insurance was mailed on September 15, 2005 advising appellant that she was liable for a refund of $966 received as benefits for weeks ending August 27, 2005 through September 3, 2005. On September 20, 2005, appellant filed an appeal of the determination of the deputy claims examiner and of the request for a refund with the Appeal Tribunal. A hearing in the matter was held before the Appeal Tribunal on October 20, 2005 at which only the appellant appeared.

On October 21, 2005, a decision was issued by the Appeal Tribunal finding appellant eligible for benefits. On October 28, 2005, Foxtons filed an appeal of the decision of the Appeal Tribunal with the Board of Review. The Board of Review issued an order on December 7, 2005, remanding the matter for a hearing and a decision on all issues. The Appeal Tribunal held the hearing on remand on January 19, 2006.

Kathy Currao, Foxtons' Human Resources Director, testified at the hearing that appellant was discharged because she used the internet to search for other employment on company time and visited websites that were not business-related. She said appellant visited WebDate.com 433 times, JobSearch.org 103 times, Shopping.msn.com 84 times, Yahoo.Hot.Jobs 72 times and Ads.Tarot.com 50 times. Appellant used her computer for non-work related purposes at various times throughout the workday.

Currao also testified that appellant's inappropriate use of the internet began in June 2005, but appellant was not terminated until August 22, 2005 because Foxtons was searching for a person to replace her. Currao denied that a lawsuit filed by appellant against Foxtons was the cause of her discharge. She said appellant also used the company computer to send her resume to another employer. Mike Toth, appellant's last supervisor, testified that he warned appellant in mid-July about her low productivity which he felt was caused by her excessive use of the internet.

Eric Olsen, Foxtons' Director of New Business and appellant's supervisor earlier in her employ with Foxtons, stated that company policy permitted employees to use the internet for personal business only during lunch time and break periods. According to Olsen, however, during the course of appellant's employment, this policy was changed to ban any personal use of the internet, and employees were notified of the change in policy via e-mail. As a new business consultant, appellant's breaks and lunches were at regular times and management was aware of when she took her lunch breaks because she completed a time sheet.

Appellant testified both at the October 20, 2005 hearing and the January 19, 2006 hearing. She stated that during the course of her employment, she purchased a house through Foxtons. Prior to closing on the house, she hired a home inspector recommended by Foxtons to inspect the home. The home was described as having a large, dry basement. Appellant claims that after she purchased the home, she found this description to be false. As a result, appellant filed a lawsuit against the seller, Foxtons, and the home inspector. The lawsuit was served on Foxtons the same day that appellant was terminated.

Appellant contends that her discharge was in retaliation for filing the lawsuit.

Appellant admitted, however, that she used the internet 103 times to search for a job at JobSearch.org on company time. Appellant began to look for a job because she "knew" she was going to be fired for filing the lawsuit. Appellant denied visiting WebDate.com 433 times and stated that many of the other websites she visited were work-related. Appellant said that she ...


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