KATHLEEN M. HILTS VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1709-16T1
KATHLEEN M. HILTS,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
and PEP BOYS MANNY,
MOE & JACK OF DELAWARE,
INC.,
Respondents.
_____________________________
Submitted May 3, 2018 – Decided June 19, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from the Board of Review, Department
of Labor, Docket No. 085,845.
Kathleen M. Hilts, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Aimee Blenner, Deputy Attorney
General, on the brief).
PER CURIAM
Kathleen M. Hilts appeals from a final agency decision of the
Board of Review (Board), which deemed her ineligible for
unemployment benefits based upon the administrative finding that
she was terminated from her job for simple misconduct pursuant to
N.J.S.A. 43:21-5(b). For the reasons that follow, we affirm.
The facts derived from the record are summarized as follows.
Hilts was employed by respondent, Pep Boys Manny, Moe and Jack,
Inc. of Delaware (Pep Boys), as a parts manager from April 23,
2013 until March 9, 2016. Pep Boys terminated her for violating
its company policy against workplace violence based upon Hilt's
disclosure of a physical altercation she had with a customer on
February 13, 2016. The altercation arose after the customer, who
was allegedly caught shoplifting, attempted to assault Hilts.
Hilts avoided the assault, but instead of retreating and calling
police, she grabbed the customer and forcibly threw him out of the
store where she worked.
After Pep Boys terminated Hilts, she applied for unemployment
benefits. In response, a Deputy Director of respondent, the
Department of Labor and Workforce Development, issued a Notice of
Determination, advising Hilts she was disqualified from receiving
benefits for the period March 6, 2016, through April 30, 2016.
According to the Notice, Hilts' "discharge was for simple
misconduct," arising from her "willful and deliberate disregard
2 A-1709-16T1
of the standards of behavior [her] employer had a right to expect."
Hilts filed an appeal with the Appeal Tribunal in which she
recounted her positive work history with Pep Boys and, as to the
confrontation with the customer, she argued that she was simply
defending herself.
In response to Hilts' appeal, the Appeal Tribunal conducted
a telephonic hearing on June 17, 2016, at which both Hilts and a
representative from Pep Boys testified.1 On the same date, the
Appeal Tribunal issued a written decision affirming the Deputy
Director's determination, after it found Hilts had been discharged
for simple misconduct under N.J.S.A. 43:21-5(b). Hilts appealed
and stated in her letter to the Board, among other things, that
she had "security footage" from the store relating to the claims
made against her. Based on Hilts' possession of the "security
footage," the Board remanded the matter to the Appeal Tribunal for
additional testimony and it further directed Hilts to provide
copies of the security footage to Pep Boys and the Appeal Tribunal
in advance of the hearing.
1
This was actually a second hearing. At the first hearing, Hilts
did not appear and the Appeal Tribunal affirmed the Deputy
Director's initial decision because there was no contravening
evidence presented. The matter was later reopened.
3 A-1709-16T1
On September 23, 2016, the Appeal Tribunal conducted the
remand hearing. Only Hilts participated. During the hearing,
Hilts confirmed that there was no video recording of the February
13 incident2 that led to her termination, and that she grabbed the
customer by the back of his jacket and "escorted" him out of the
store so that he would not try to hit her again.
After considering the evidence presented at the hearing, the
Appeal Tribunal issued its written decision, again affirming the
Deputy Director's denial of benefits for the limited period. The
Appeal Tribunal found that Pep Boys learned about the February 13
incident from Hilts and from its observation of Hilts' interaction
with the customer from a video recording of what transpired outside
the store. It also found that according to Hilts, she "grabbed
the customer by the back of the jacket and threw him out of the
store [which] was done to defend herself" against the customer's
"attempt[] to hit her with his fist."
Turning to its legal conclusions, the Appeal Tribunal
discussed the provisions of N.J.S.A. 43:21-5(b), which related to
the disqualification of an applicant for benefits when their
2
Hilts produced video from another incident on a different day
during which she chased another employee, who was chasing a
shoplifter in the parking lot, while telling the employee to stop
and get back in the store in accordance with the company's policy
that store personnel should not pursue shoplifters, but rather
call the police.
4 A-1709-16T1
termination is due to "misconduct," and the definition of
misconduct stated in N.J.A.C. 12:17-10.6(3), which included when
an employee violates "a reasonable rule of the employer which the
[employee] knew or should have known was in effect."
The Appeal Tribunal concluded by finding that the security
footage Hilts presented was not relevant to her termination, and
that her admitting to grabbing a customer and throwing him out of
the store was in violation of Pep Boy's policy against workplace
violence about which Hilts was aware. It rejected Hilts' argument
that she acted in self-defense because she had an opportunity to
leave the scene and call police, rather than grabbing the customer.
Because there was no evidence that Hilts had been given any
warnings against this conduct, the Appeal Tribunal concluded her
actions only arose to "simple" misconduct, rather than severe
misconduct, which imposed a lengthier period of ineligibility.
See N.J.S.A. 43:21-5(b).
Hilts appealed again to the Board, arguing it was unfair that
the same claims examiner conducted the two hearings before the
Appeal Tribunal, and challenging as untrue testimony given by Pep
Boy's representative during the first hearing. Further, Hilts
claimed she did not act with the "intention of breaking any company
policy or losing [her] job." After considering her submission,
5 A-1709-16T1
the Board issued its written decision on November 15, 2016,
affirming the Appeal Tribunal's decision. This appeal followed.
On appeal, Hilts contends that as a self-represented
litigant, she has been "treated very unfairly" by both respondents.
She claims that her termination "was based on false allegations
from a manager who disliked" her. In support, she incorporates
her letter to the Board appealing the Appeal Tribunal's final
determination.
Our review of decisions by administrative agencies is
limited, with petitioners carrying a substantial burden of
persuasion. In re Stallworth, 208 N.J. 182, 194 (2011); Brady v.
Bd. of Review, 152 N.J. 197, 218 (1997). An agency's determination
must be sustained "unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." Russo v. Bd. of Trs., Police & Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192
N.J. 19, 27-28 (2007)). "[I]f substantial evidence supports the
agency's decision, 'a court may not substitute its own judgment
for the agency's even though the court might have reached a
different result[.]'" In re Carter, 191 N.J. 474, 483 (2007)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992)). The burden of proof rests with the employee to
6 A-1709-16T1
establish a right to collect unemployment benefits. Brady, 152
N.J. at 218.
Applying our deferential standard of review, we conclude that
Hilts' contentions are without sufficient merit to warrant
discussion in a written opinion, and we are satisfied that the
Appeal Tribunal's decision, as adopted by the Board in its final
agency decision, was supported by substantial credible evidence
and was legally correct. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
7 A-1709-16T1