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Abdelmessih v. Board of Review


October 22, 2008


On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, 154,194.

Per curiam.


Submitted October 6, 2008

Before Judges R. B. Coleman and Sabatino.

Frail Abdelmessih ("claimant") appeals a final determination of the Board of Review denying his petition for unemployment benefits. We affirm.

These are the pertinent facts that emerged at the hearing before the Appeal Tribunal. Claimant was employed as a driver for Aerotek Aviation, LLC ("Aerotek"), a company that does on-site maintenance work at Newark Airport. On Friday, June 1, 2007, claimant's immediate supervisor notified Aerotek's site manager, Patricia McKascle, that claimant had been badgering and threatening a female co-worker, L.H., on the job site that week. That same day, L.H. called McKascle herself and reiterated her complaint of harassment. According to McKascle, L.H. broke down in tears during their conversation.

The record indicates that claimant and L.H. were once close friends and had even car pooled together, but their relationship eventually soured. After that rift occurred, L.H. requested and obtained a change in her work schedule. Claimant requested a similar shift change, but it was denied. Upset about this, claimant allegedly started yelling at and harassing L.H. while she was at work. Other fellow employees interceded and asked him to leave her alone.

The following week, McKascle arranged a meeting at the work site to address the complaints about claimant's behavior. The meeting with McKascle included claimant, L.H., and a manager from Delta Airlines. The Delta manager was involved because he routinely scheduled the work of claimant and other Aerotek employees on Delta's equipment.

McKascle's testified that claimant became agitated during the meeting, gesturing at the Delta manager and accusing him of giving special treatment to L.H. Claimant started to yell and scream. When McKascle was unable to calm him down, McKascle directed claimant to leave the job site and take a few days off. Claimant refused to do so. He instead became more agitated, according to McKascle, "raising his voice over and over."

Claimant's agitated behavior prompted McKascle to call the Port Authority police. An officer soon arrived, taking claimant's identification badge from him and escorting him off the premises.

McKascle recalled that about two months before their June 2007 meeting, claimant had similarly become irate at his immediate supervisor, threatening him in McKascle's presence. According to McKascle, claimant's face had "turned total colors" before McKascle was able to get between the two men and subdue claimant.

Following these incidents, McKascle spoke with her supervisor in Atlanta, who instructed McKascle to terminate claimant. Accordingly, claimant was discharged on June 3, 2007, on the grounds of misconduct. He thereafter applied for unemployment benefits for the period from June 3 through July 14, 2007.

In claimant's own testimony before the Appeal Tribunal, he denied harassing L.H. He accused L.H. of "trying to use anything to make a problem" for him. Claimant asserted that he had been "doing good work" at Aerotek and had been "fired unjustly." He contended that he was experiencing health problems, and that he had not been able to find other work.

After considering this testimony, the appeals examiner concluded that claimant had been discharged "due to the insubordinate behavior he had demonstrated at the meeting [with McKascle]." Crediting McKascle's testimony, the examiner specifically found that claimant had been "repeatedly asked" by his superiors to maintain his composure, but had "continued [to be agitated], albeit the employer's instruction." Consequently, the examiner determined that claimant had engaged in misconduct connected with the work and was therefore ineligible for unemployment benefits for the five-week period immediately following that misconduct. The Board of Review affirmed the examiner's determination, and this appeal ensued.

As a general matter, the scope of appellate review of final decisions by administrative agencies is limited. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In matters such as this one involving unemployment benefits, we accord particular deference to the expertise of the Board of Review, and its repeated construction and application of Title 43. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). Moreover, it is not our role to second-guess the credibility determinations of a factfinder, so long as those findings have a substantial and reasonable basis in the record. See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Here, the applicable statute is N.J.S.A. 43:21-5(b), which prescribes that "[a]n individual shall be disqualified for benefits [f]or the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week, as determined in each case."

Likewise, the associated regulation, N.J.A.C. 12:17-10.2, describes misconduct as conduct 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."

With respect to misconduct arising from an employee's insubordination, N.J.A.C. 12:17-10.6(a)(1) further provides that:

(a) An individual shall be considered to have been discharged for an act of misconduct where it is established that he or she has committed an act of misconduct as defined in [N.J.A.C.] 12:17-10.2 and met one of the following:

(1) Refused without good cause to comply with instructions from the employer, which were lawful, reasonable, and did not require the individual to perform services beyond the scope of his or her customary job duties[.]

Based on the testimony before the Appeal Tribunal, we are satisfied that the examiner's conclusion that claimant was ineligible for benefits under N.J.S.A. 43:21-5(b) and the associated regulation, due to his insubordination on the job site, is manifestly supported by substantial credible evidence. That conclusion is also consistent with case law applying the statute and regulations. See, e.g., Borowinski v. Board of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (willful refusal to comply with an employer's reasonable instructions disqualifies an employee from unemployment benefits); Demech v. Board of Review, 167 N.J. Super. 35, 38 (App. Div. 1979) (same).

Claimant contends, for the first time on appeal, that the true reason that he was discharged was because he had observed an improper sexual relationship between L.H. and the Delta manager on the job site. He said nothing about this in his testimony before the appeal examiner, despite being prompted by the examiner at the end of his testimony to add any other points that he had to raise. We shall not address these accusations, which are outside of the record before us. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). It was incumbent upon claimant to present testimony on these matters at the hearing, where the examiner could have given them full and fair consideration. While the contentions may have been relevant in a separate and timely proceeding under the applicable anti-discrimination or whistleblower statutes, they have not been properly presented here.

The final agency decision of the Board finding claimant ineligible for unemployment benefits is affirmed.


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