ANNE RAYMOND VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5129-16T3
ANNE RAYMOND,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR, and
UROLOGY GROUP OF
PRINCETON, PA,
Respondents.
_____________________________
Submitted January 30, 2019 – Decided February 15, 2019
Before Judges Koblitz and Currier.
On appeal from the Board of Review, Department of
Labor and Workforce Development, Docket No.
107,106.
James Valentin, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Shaffer,
Assistant Attorney General, of counsel; Daniel Pierre,
Deputy Attorney General, on the brief).
Respondent Urology Group of Princeton, PA, has not
filed a brief.
PER CURIAM
Claimant Anne Raymond appeals from the March 30, 2017 decision of the
Board of Review (Board) finding her insubordination rose "to the level of simple
misconduct connected with the work," and rendered her disqualified for benefits
from November 6 through December 31, 2016. See N.J.S.A. 43:21-5(b). We
affirm.
Claimant was disqualified due to misconduct connected to her work.
Raymond appealed and the Appeal Tribunal reversed, finding that she used
profanity toward her employer after receiving a warning about her conduct, but
that this was a "normal reaction" and did not go beyond the "ordinary reactions
of a reasonable person." The employer, Urology Group of Princeton, PA,
appealed and the matter was remanded because no audible record was available.
A second hearing took place before the Appeal Tribunal.
The facts as found by the Appeal Tribunal are not in serious dispute.
Claimant worked for Urology Group as a "desk receptionist" from October 2012
until her termination for insubordination in November 2016. That November
day, claimant's supervisor brought claimant into a room and gave her a written
warning for poor time management and "gossiping and making comments about
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working for the devil." Claimant said her employers were all "motherfuckers"
and repeated the statement after being told that cursing would be grounds for
termination. Although claimant later sent a message by text apologizing for her
comments, she did not remember cursing when she testified before the Tribunal.
She said she just remembered crying because she was upset.
Our review of administrative agency decisions is limited. We will not
disturb an agency's action unless it was clearly "arbitrary, capricious, or
unreasonable." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).
N.J.S.A. 43:21-5 disqualifies a claimant from unemployment benefits
(b) For the week in which the individual has been
suspended or discharged for misconduct connected
with the work, and for the five weeks which
immediately follow that week, as determined in each
case.
"Misconduct" means conduct which is improper,
intentional, connected with the individual's work,
within the individual's control, not a good faith error of
judgment or discretion, and is either a deliberate
refusal, without good cause, to comply with the
employer's lawful and reasonable rules made known to
the employee or a deliberate disregard of standards of
behavior the employer has a reasonable right to expect,
including reasonable safety standards and reasonable
standards for a workplace free of drug and substance
abuse.
The Administrative Code further defines insubordination:
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a) An individual shall be considered to have been
discharged for an act of simple misconduct where it is
established that he or she has committed an act of
"simple misconduct" and met one of the following:
1. Refused without good cause to comply with
instructions from the employer, which were lawful,
reasonable, and did not require the individual to
perform services beyond the scope of his or her
customary job duties;
2. Acted beyond the expressed or implied authority
granted to the individual by the employer; or
3. Violated a reasonable rule of the employer which the
individual knew or should have known was in effect.
[N.J.A.C. 12:17-10.5.]
The Tribunal stated: "This Tribunal does not believe that the use of
profanity is insubordination." The Tribunal found it did not "go beyond the
ordinary reactions of a reasonable person."
The Board disagreed, determining that misconduct encompassed the use
of profanity after being told to stop or risk termination. The Board found the
"use of profanity directed at the employer [that] continued after the employer
advised her that her language was inappropriate and grounds for termination"
disqualified claimant from unemployment benefits. In the current environment
where cursing is prevalent, we might make a different assessment, but we do not
reverse. See In re N.J. Dept. of Envtl. Prot. Conditional Highlands Applicability
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4
Determination, 433 N.J. Super. 223, 235 (App. Div. 2013) ("If the Appellate
Division is satisfied after its review that the evidence and the inferences to be
drawn therefrom support the agency head's decision, then it must affirm even if
the court feels that it would have reached a different result itself." (quoting
Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001))).
The Board's decision was not arbitrary, capricious, or unreasonable.
Affirmed.
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