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James T. Wilson v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 21, 2011

JAMES T. WILSON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR
AND LUTHERAN SOCIAL MINISTRIES OF NEW JERSEY, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 209,700.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2011

Before Judges Messano and Waugh.

Petitioner James T. Wilson appeals from the final agency action of respondent Department of Labor, Division of Unemployment and Disability Insurance (Division) denying his application for unemployment insurance benefits. We affirm.

Wilson was an employee of respondent Lutheran Social Ministries of New Jersey (LSM) when he was terminated on September 22, 2008. According to LSM, Wilson had forged the signature of a LSM social worker on a statement alleging that she had witnessed the sale of drugs at one of LSM's residential properties. The social worker, however, told LSM that she had only signed a handwritten statement asserting that she had seen a "transaction" of some sort, but had not signed the typed document produced by Wilson asserting that she had witnessed the sale of "drugs." She further stated that she had not seen drugs and was not totally certain that it had been a drug transaction. When Wilson was unable to produce the original handwritten statement, LSM terminated his employment.

Wilson filed a claim for unemployment benefits on September 28, 2008. The Division's Deputy Director determined that he was eligible for benefits without disqualification. LSM appealed that decision to the Appeal Tribunal. A telephonic hearing was held on February 4, 2009, in which Wilson did not participate. The Appeal Tribunal reversed the Deputy Director's decision, finding that Wilson was disqualified from receiving benefits for the period from September 21, 2008 to November 1, 2008, because he had been terminated for misconduct related to his employment.

Wilson and LSM appealed to the Board of Review. Wilson argued that his failure to participate in the Appeal Tribunal hearing was for good cause. On April 17, 2009, the Board reversed and remanded for a new hearing. The Board determined that Wilson's failure to participate in the Appeal Tribunal's hearing was for good cause and that there was a need for further testimony from LSM to determine whether the termination was for "gross misconduct" connected with his work, which would result in a complete disqualification for benefits under N.J.S.A. 43:21-5(b).

The new hearing took place on June 24, 2009. In addition to Wilson and two employer representatives, the social worker whose signature was allegedly forged testified at that hearing. She testified that she had neither seen nor signed the typed statement. She further testified that she had not seen drugs change hands and for that reason had not referred to drugs in her handwritten statement. LSM argued that Wilson forged the document, conduct which amounted to "gross misconduct" warranting total disqualification of benefits. The Appeal Tribunal issued its second decision on July 24, 2009. It determined that the questioned document had not been signed by the social worker, and consequently determined that Wilson had been terminated for "gross misconduct" connected with the work warranting complete disqualification.

Wilson appealed to the Board of Review. The Board upheld the finding that the termination was for misconduct, but determined that it was not "gross misconduct." Consequently, the Board amended the penalty to a six-week disqualification. This appeal followed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if the agency's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quoting another source). Although the Act is remedial in nature, it is the claimant who bears the burden of proving entitlement to benefits. Brady, supra, 152 N.J. at 218. And, "[t]he basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J. at 374.

Having carefully reviewed the issues raised on appeal in light of the record and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

The Appeal Tribunal's determination that the typed document was not genuine was supported by "substantial evidence" in the record. Even if, as Wilson contends, his efforts were an attempt to facilitate enforcement of LSM's anti-drug policies, it was not "arbitrary, capricious, or unreasonable" for the Board to have determined that forging a document to alter or enhance a witness's statement was misconduct. We note that, by overturning the Appeal Tribunal's finding of "gross misconduct," the Board considerably reduced the nature of the penalty imposed on Wilson. Finally, we see nothing "arbitrary, capricious, or unreasonable" with respect to the procedure followed by the Division. It is not unusual for witnesses before the Appeal Tribunal to testify by telephone, nor was the failure of Wilson's attorney to appear at the hearing, through no fault of the Division, a basis for overturning the result.

Affirmed.

20110121

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