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Wells v. Board of Review


September 19, 2008


On appeal from the Board of Review, Department of Labor, Docket No. 137,034.

Per curiam.


Submitted September 9, 2008

Before Judges Parker and Yannotti.

Jervone C. Wells appeals from a final determination of the Board of Review, which found that Wells was disqualified under N.J.S.A. 43:21-5(b) for unemployment compensation benefits from December 3, 2006 through January 13, 2007, because he had been discharged by his employer, Stryker Orthopaedics Corporation, for misconduct connected with his work. We affirm.

Wells was employed by Stryker in its distribution department. He was discharged from his position on December 4, 2006, because he violated the company's policy and its Code of Conduct regarding use of the company's computer system. On December 3, 2006, Wells filed a claim for unemployment compensation benefits. A deputy claims examiner found that Wells was eligible for benefits. Stryker filed an appeal from that determination, and the Appeal Tribunal conducted a hearing in the matter on April 17, 2007 and May 16, 2007.

At the hearing, Paige Whittingham, Stryker's Human Resources Manager, testified that the company's employee handbook states that it is impermissible for an employee to use the company's computer system "to make offensive, harassing, obscene derogatory, or threatening communications" or "to download, distribute, view, publish, print or sen[d] pornographic, obscene, sexual, ethnic, religious, racial or [any] other form of harassing, offensive or inappropriate material." The employee handbook additionally states that an employee may be subject to disciplinary action if the employee violated the company's "Rules of Conduct," which provide that it is unacceptable for an employee to engage in the "improper use of [the company's] systems or property, including computers, voicemail or intranet."

Whittingham further testified that each time an employee uses the company's computer system, a start-up message appears on the screen. The message states that the system may only be used: in accordance with . . . Corporate Policy Number 7 entitled E-mail, Voice Mail, and Computer System Policy. Unauthorized or improper use of this system may result in disciplinary action up to and including discharge. . . . By using this system, you indicate your awareness of and consent to these terms and conditions of use.

According to Whittingham, Wells sent his wife an e-mail that said, "Never dress up as a [l]lama." Attached to the e-mail was a video that depicted two men dressed as llamas. The men appeared to be attempting to engage in sexual relations with a live elk or deer. Whittingham stated that the video "was very graphic." Whittingham additionally stated that Wells sent e-mails to several persons with an attached "Lingerie Calendar." The calendar had pictures of obese women dressed in lingerie.

It appears that Wells had intended to e-mail the "Lingerie Calendar" to his co-workers, but he misdirected one of the e-mails to the company's Human Resources Director at a different site, who reported the matter to the Human Resources department in Wells' office. The company conducted an investigation, which resulted in the termination of at least twelve persons, including Wells, for the unauthorized and inappropriate use of the e-mail system.

Wells admitted that he sent the e-mails at issue. He also admitted that he had received a copy of the company's employee handbook. Wells said that the "llama" e-mail was not mentioned when he was fired, but it was brought up later to justify his termination. Wells did not say whether that particular e-mail was inappropriate or offensive.

Wells said, however, that there was nothing inappropriate in the "Lingerie Calendar." He asserted that the calendar did not depict nudity. He stated, "That's not nudity. Nudity is nude. . . . That's lingerie. That's clothing. That's underwear."

The Appeal Tribunal found that Wells was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(b) because he had been discharged for misconduct connected with the work. The Appeal Tribunal stated that Wells: was discharged for sending E-mails of an inappropriate nature. It has become common practice for employees to use the computer for personal use, but the company draws the line at material which some people may find offensive. As the claimant should have known that the items he was sending may be found offensive by some, his actions are considered misconduct. Therefore, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 12-3-06 through 1-13-07, as the discharge was for misconduct connected with the work.

The Appeal Tribunal remanded the matter to the Director of the Division of Unemployment and Temporary Disability Insurance, for an initial determination as to whether Wells must refund the benefits previously paid to him. Wells appealed the Appeal Tribunal's decision to the Board of Review, which issued a final decision on July 3, 2007, affirming the Appeal Tribunal's determination. This appeal followed.

Wells argues that the "Lingerie Calendar" was "in no way" offensive. He asserts that the company fired more than half of the employees in the distribution department for financial reasons, and the company used "the e-mail thing to get things rolling." Wells claims that the company did not treat him fairly, and other employees who allegedly violated the company's rules had only received warnings or suspensions. Therefore, Wells argues that the Board erred by finding that he was not entitled to unemployment compensation benefits and he should not have been required to repay the benefits initially paid to him.

The standard of review that applies in an appeal from a final determination of an administrative agency is well established. The agency's decision must not be disturbed unless it has been 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. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Thus, our scope of review is limited to the following inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Id. at 211.]

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'". Id. at 210 (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, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). Having thoroughly reviewed the record in light of these standards of appellate review, we are convinced that the Board's final decision must be affirmed.

As stated previously, N.J.S.A. 43:21-5(b) provides that an individual is disqualified for unemployment compensation benefits if the individual was discharged for misconduct connected with the work. The disqualification precludes the individual from receiving benefits for the week in which the individual was terminated and the five weeks that immediately follow. Ibid. The disqualification under N.J.S.A. 43:21-5(b) applies if the employee engages in a willful disregard of the employer's interest or a deliberate violation of its rules or standards of behavior. Borowinski v. Bd. of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (citing Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)).

We are satisfied that there is sufficient credible evidence in the record to support the Board's finding that Wells was discharged for misconduct connected with his work. The evidence established that Wells used the company's computer system for the dissemination of material that was obscene and inappropriate. Although Wells argues otherwise, his conduct violated the company's written policy governing the use of its computer system and its Code of Conduct. Therefore, the Board correctly determined that Wells was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b).

Wells additionally contends that he should not have been ordered to repay the benefits he received before it was determined that he was not eligible for unemployment compensation. However, Wells has not provided us with a copy of the decision requiring repayment of those benefits. Furthermore, Wells has not explained why repayment of the benefits should not be required in these circumstances.


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