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Scott R. Skolnick v. Board of Review


January 10, 2012


On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 251,946.

Per curiam.


Argued October 5, 2011

Before Judges Cuff and St. John.

Appellant Scott R. Skolnick appeals from a final decision of the Board of Review (the Board), dated September 23, 2010, disqualifying him from unemployment benefits, pursuant to N.J.S.A. 43:21-5(b), for misconduct connected with his work. For the reasons that follow, we affirm.

Skolnick was employed by T.G.I. Friday's, Inc. (TGIF) as a waiter from July 2002 to July 2009, when General Manager Ralph Russo terminated him for misconduct related to a verbal altercation between Skolnick and a TGIF hostess.

On July 26, 2009, Skolnick filed a claim for unemployment compensation benefits. A deputy to the Director of the Division of Unemployment Insurance held that Skolnick was eligible for benefits. TGIF appealed the deputy's determination to the Appeal Tribunal, arguing that Skolnick was discharged for misconduct connected with his work.

An appeals examiner conducted a hearing on March 16 and 17, 2010. Skolnick testified that a group of customers came into the restaurant and the hostess attempted to escort them to a table. Skolnick explained to her that it would be better to seat them closer to the kitchen because it was later in the evening and the restaurant was empty. He claimed the hostess confronted him, screaming that he should not tell her how to do her job. Skolnick asserted that he did not use abusive language, but that she was abusive to him. He stated he went into the kitchen to continue his job, but she followed him and continued to scream at him. After Skolnick explained to management what had transpired, he was sent home. Skolnick asserted that he was discharged not because of the incident, but as a result of numerous complaints he made over the years concerning certain illegal practices engaged in by TGIF.

Vincent Santiago, a TGIF manager, testified that while he was in the kitchen, he heard screaming in the kitchen's expo area, just off the dining room. He arrived on the scene to observe Skolnick and the hostess yelling at each other. Santiago testified he observed Skolnick screaming at the hostess, with his finger in her face. The hostess was screaming at Skolnick, telling him to get his finger out of her face and to get away from her. Santiago stated that when he observed them, Skolnick was physically blocking the movement of the hostess. Santiago ordered them to go to different areas of the restaurant. He questioned the hostess, who told him that Skolnick started yelling at her when she was at the hostess stand, which caused her to go to the kitchen to seek the help of a manager.

Albert Morielle, a TGIF manager, testified that he did not witness the incident, but was advised of its occurrence.

Morielle testified that when he questioned Skolnick, he denied involvement in the incident. Two restaurant guests then approached Morielle, telling him they were seated adjacent to the hostess station. They explained to him that Skolnick approached the hostess and was verbally abusive to her, screaming and yelling at her, almost to the point that they felt he would hit her.

The Appeal Tribunal reversed the deputy's determination. In its decision, the Appeal Tribunal found that Skolnick was discharged for a verbal altercation with a co-worker, which behavior was inappropriate for the workplace. The Appeal Tribunal determined that Skolnick was disqualified from benefits pursuant to N.J.S.A. 43:21-5(b), as the discharge was for misconduct connected with Skolnick's work.

Skolnick appealed the Appeal Tribunal's decision to the Board. In its September 23, 2010 determination, the Board agreed with the Appeal Tribunal's decision reached on the basis of the record below. The Board therefore upheld the Appeal Tribunal's finding that Skolnick was appropriately disqualified from benefits pursuant to N.J.S.A. 43:21-5(b). This appeal followed.

On appeal, Skolnick argues that TGIF did not offer sufficient and credible evidence to prove by a preponderance of the evidence that he engaged in misconduct, and that the Board's decision was based on non-credible hearsay evidence. Additionally, he asserts that his actions do not rise to the level of misconduct connected with the work. We disagree.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). "There are well-recognized principles governing the judicial review of administrative agency determinations" and appellate courts "have a limited role in the review of such decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (citation and quotation marks omitted). 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.'" Brady, supra, 152 N.J. at 210 (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "If a reviewing court concludes that a decision of the [Board] is arbitrary, the court may either finally determine the matter by fixing the appropriate penalty or remand it to the [Board] for redetermination." Ibid. In determining whether agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) 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. [In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Here, the Board found that Skolnick was disqualified from unemployment compensation benefits under N.J.S.A. 43:21-5(b), which provides that a claimant may be disqualified for benefits if the discharge results from "misconduct connected with the work." Misconduct includes "'a disregard of standards of behavior which the employer has the right to expect of his employee[.]'" Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956) (quoting 48 Am. Jur., Social Security, Unemployment Compensation 541 (1943)),*fn1 certif. denied, 23 N.J. 579 (1957). "Judicial attempts to imbue the term with substantive meaning have, however, insisted upon the ingredients of willfulness, deliberateness and intention if an employee's act is to qualify as misconduct." Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979). Skolnick's actions of screaming at the hostess, accompanied by his physically threatening gestures, evinces his willful disregard of standards of behavior which his employer has the right to expect of its employee.

Skolnick also argues that the hearsay evidence admitted, violated his right to a fair proceeding. N.J.A.C. 1:12-15.1(b) provides:

Hearsay evidence shall be admissible and accorded whatever weight the examiner deems relevant, appropriate, and reasonable under the circumstances. Notwithstanding the admissibility of hearsay evidence, the decision as rendered must be supported by sufficiently substantial and legally competent evidence to provide assurance of reliability and to avoid the fact or appearance of arbitrariness.

The hearsay evidence was reliable, as it was corroborated by other evidence in the record. We are satisfied that there is substantial, legally competent, credible evidence in the record, including testimony of a manager who observed part of the confrontation.


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