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Scott R. Skolnick v. Board of Review

January 10, 2012

SCOTT R. SKOLNICK, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND T.G.I. FRIDAYS, INC., RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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