On appeal from the Board of Review, Department of Labor, Docket No. 137,034.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...