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Garlanger v. Board of Review

Superior Court of New Jersey, Appellate Division

September 10, 2013



Argued August 6, 2013

On appeal from the Board of Review, Department of Labor, Docket No. 337, 767.

Joseph M. Pinto argued the cause for appellant (Polino and Pinto, P.C., attorneys; Mr. Pinto, on the brief).

Christopher M. Kurek, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kurek, on the brief).

Before Judges Lihotz and Guadagno.


Petitioner Joseph H. Garlanger appeals from the May 31, 2012 final decision of the Board of Review (Board), affirming the decision of an Appeal Tribunal, denying Garlanger's claim for unemployment benefits. We affirm.

Garlanger was employed as a tractor operator for Pride Industries, Inc. (Pride) for approximately ten months. His employment was terminated for violating the company's standards of conduct, including workplace violence. After Garlanger filed a claim for unemployment benefits, a deputy to the Director of the Division of Unemployment and Disability Insurance (Division) found him disqualified for benefits because his actions constituted simple misconduct and a willful and deliberate disregard of the standards of behavior his employer had a right to expect.

Petitioner appealed. Before the hearing began, the appeals examiner notified the parties that she would not be bound by the prior determination of simple misconduct and would also consider whether petitioner's conduct constituted severe misconduct.

Pride's human resources (HR) director, Doris Fowers, testified to petitioner's prior infractions. On November 10, 2010, petitioner was issued a written warning for being rude to an employee or a customer; on January 15, 2011, he was issued a verbal warning for safety violations stemming from an incident in which he backed up a truck into a salt dome, damaging both the truck and the dome itself; and on January 25, 2011, he was issued a written warning for "walking off or not following the instructions to do what he had been assigned to do that day and going off and doing something else." Petitioner was asked to sign these warnings when issued, but refused.

The incident which led to petitioner's termination occurred on April 27, 2011. Petitioner had received notice from the Burlington County Probation Office that a wage garnishment of $120 would be implemented due to an unrelated matter. Petitioner was given a letter from Pride explaining the terms of the court-ordered wage garnishment. The letter indicated $130 would be deducted from petitioner's paycheck. Petitioner became upset, as he felt the garnishment should be limited to $120, and went to the administration building.

Samantha Gralla, a rehabilitation counselor who works with and advocates for disabled employees, testified she shared an office with Heather Algarin, a Human Resources Assistant at Pride. Gralla was in the office when petitioner "burst into the door, screaming . . . got into Algarin's face . . . very close proximity to her face . . . screaming about these garnishes." Gralla testified "we really couldn't get too much information out of him at the time regarding the garnishment because he was so upset about it." Gralla described petitioner's voice as being "very raised" and "a different tone . . . very intense tone . . . and [] something [we] weren't familiar with based . . . on . . . the past visits, that this was something more . . . a little more intensive [than] we've seen before."

At this time, John Irwin, another Pride employee, was near the HR office. When petitioner saw Irwin, he yelled at him, "thanks for showing up this morning mother fucker." Petitioner repeated the expletive, and began walking toward Irwin, who was standing in the hallway just outside of the office. Irwin testified he felt "extremely threatened and started getting angry [him]self." Ms. Gralla stepped in between the two men and closed the door separating them, to diffuse the situation. Gralla described petitioner's actions as he "switched his focus from Ms. Algarin to Mr. [Irwin] and . . . was very close to him getting physically combative, it seemed like his hands were about to go up and his body language completely shifted and changed." Gralla closed the door to prevent anything from happening between the two men. After closing the door she realized the danger of locking herself and others in the office with petitioner.

Throughout the ordeal, petitioner was screaming that he "was going to sue Ms. Algarin and the company and that Mr. Irwin was worthless and used other profane language and calling both of them names . . . among a lot of other things." Irwin testified he stayed in the hallway until petitioner left the building because he was concerned for the safety of those in the office. Irwin "wanted to make sure that it didn't get physical so [he] stayed there until . . . [petitioner] left the building." Ms. Gralla testified she had worked with petitioner in the past and that "his actions were absolutely amplified in this incident, " and that "safety was . . . a threat at the time."

After petitioner slammed the door, left the building and drove off, Ms. Algarin immediately went to Ms. Fowers office "red face and [with] tears and shaking, " and explained what had just occurred. Fowers testified Algarin was "so upset and she was afraid that petitioner was going to harm her and that she was scared to death." The next morning, Pride contacted the police and had police officers on hand because "so many people were worried that petitioner would do something." Ms. Fowers, Ms. Gralla and several other members of the management team discussed the issue and decided to terminate petitioner's employment because the incident "pretty much took it over the top . . . . [They] felt that because it was such a safety concern this wasn't something ...

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