DAVID KENT VS. BOARD OF REVIEW (DEPARTMENT OF LABOR)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 16, 2021
• Docket: A-3859-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3859-19

DAVID KENT,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR, and 360 FIRE PREVENTION, LLC,

Respondents. __________________________

Submitted May 17, 2021 – Decided June 16, 2021

Before Judges Sabatino and Gooden Brown.

On appeal from the Board of Review, Department of Labor, Docket No. 203,408.

David Kent, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Donna Arons, Assistant Attorney General, of counsel; Christopher Hamner, Deputy Attorney General, on the brief).

PER CURIAM David Kent appeals from the April 30, 2020 final agency decision of the

Board of Review upholding his disqualification for benefits under N.J.S.A.

43:21-5(b) on the ground that he was discharged from employment for

misconduct connected with the work. Based on our review of the record in light

of the applicable legal principles, we vacate the decision and remand for further

proceedings.

We glean these facts from the record. Kent commenced employment as a

delivery driver for 360 Fire Prevention, LLC in October 2018. After he was

discharged on December 16, 2019, he filed a claim for unemployment benefits.

On January 15, 2020, a Division of Unemployment Insurance Deputy

determined that Kent was "eligible for benefits from [December 22, 2019]." The

January 15 Notice of Determination informed Kent:

You were discharged from your position at 360 Fire Prevention on [December 16, 2019] for insubordination and verbal abuse. There is insufficient evidence to support this allegation.

Your actions do not constitute a willful and deliberate disregard of the standards of behavior your employer had a right to expect therefore, your discharge was not for misconduct connected with the work.

On January 21, 2020, the employer appealed, contending that Kent "was

discharged for reasons which constitute misconduct in connection with the

A-3859-19 2 work." On February 3, 2020, an appeals examiner mailed Kent a Notice of

Phone Hearing, scheduling the hearing for 9:00 a.m. on February 20, 2020, and

explaining that "all evidence should be received by the Appeal Tribunal no later

than [twenty-four] business hours prior to the scheduled hearing date and time."

Although the notice included a phone number, fax number, and mailing address,

no email address was supplied. On February 17, 2020, Kent sent a document

notifying the examiner that he had "audio evidence" he wanted "to submit . . .

prior to the hearing" and "tried calling to get an email but was unable" to reach

the examiner.1

At the telephonic hearing conducted by the Appeal Tribunal on February

20, the evidence presented centered on the circumstances surrounding Kent's

discharge on December 16, 2019. During the hearing, Charles Musumeci, Jr.,

President of the company, and C.J. Musumeci, Vice-President of the company

and one of Kent's supervisors, testified for the employer. Kent and his brother

James testified on Kent's behalf. There was no discussion about the audio

evidence Kent had attempted to submit.

1 Kent later indicated that he "mailed two audio CDs to the Appeals examiner prior to the hearing" once he was unable to obtain an email address. A-3859-19 3 During the hearing, Charles testified that an "investigation" revealed that

during Kent's employment as a driver, Kent "was constantly speeding," "not

following protocol," "not fulfilling his responsibilities," and "lying about his

location and what he was doing." A few days before December 16, Charles

learned that Kent had "spent five hours at his home with . . . the company vehicle

running," "disconnected . . . the vehicle locating device," and lied about his

whereabouts.

According to Charles, although he was perturbed by these revelations and

planned to discuss them with Kent, "there was a possibility of [Kent] getting

another chance." However, Kent "assumed . . . he was going to get fired due to

. . . his actions . . . from a few days before." As a result, on December 16, when

Kent "was off from work," Kent "walked into . . . C.J.['s] . . . office" with his

brother and "started to scream at the top of his lungs to the point where he

disturbed the entire internal portion of the office." Due to the disturbance, Kent

"was asked . . . to go outside."

Once outside, Kent "walked . . . within an inch [of Charles's face],

screaming, . . . flexing, . . . threatening, and yelling out of control like an

animal." Kent demanded to know "why" he was "being fired" and "who[ was]

firing [him]." Believing that Kent was "going to get violent," Charles asked

A-3859-19 4 Kent "to calm down" "three or four times," to no avail. Finally, Charles told

Kent that he was fired and told the onlookers, including C.J., to call the police.

At that point, Kent "backed down a little, got in his car, . . . started yelling at his

brother," and "left within minutes of the police being called."

Charles testified that the confrontation "was actually very scary." When

asked by the examiner whether Kent would have been fired if the confrontation

had not occurred, Charles equivocated but ultimately admitted that "he probably

. . . would have been fired anyway."

C.J. testified that Kent was fired because "during the work day," he "took

the [company] vehicle home, and spent time there . . . and did not inform [them]

as to his location." Although C.J. did not "personally . . . speak to [Kent]" about

the issues with his work performance, he "believe[d]" that it had been addressed

by either Charles or another one of Kent's supervisors.

Regarding the December 16 incident, C.J. testified that, accompanied by

his brother, Kent "walked right into [C.J.'s personal] office . . . without

permission," "started yelling . . . and was very loud and confrontational about

the whole situation." Although Kent had not yet been fired, when C.J. "walked

[him] outside," Kent continued "screaming" and "yelling" "about why he was

fired." C.J. testified that he "just tried to calm [Kent] down" "until [Charles]

A-3859-19 5 arrived," at which point Kent directed his rants towards Charles until Charles

actually fired him.

Kent disputed the employer's testimony concerning the December 16

encounter and his performance with the company. According to Kent, two days

earlier, when his brother who worked for the same company "gave notice that

he was taking a new job," his brother was informed "that they were going to let

[Kent] go." Although Kent was not scheduled to work on December 16, he

drove to the workplace with his brother and, while there, asked C.J. "why [he]

was getting fired." Kent testified that although he "wasn't happy about the

situation," he "wasn't yelling and screaming." In response to Kent's question

about why he was being fired, C.J. "didn't elaborate too much" so Kent waited

for Charles to arrive.

According to Kent, as soon as Charles arrived, the "first words" out of

Charles's mouth were "[y]ou're terminated." When Kent asked for a reason,

Charles responded "it didn't matter." When Kent tried to reason with him,

Charles "threatened to call the cops" so Kent eventually left to avoid getting

arrested. Kent acknowledged that after "[he] was actually terminated," he

became angry and "may have raised [his] voice." However, he denied

"threaten[ing Charles]" or doing "anything like that." Kent also acknowledged

A-3859-19 6 "taking a lunch [break]" at his home with the company van and explained that

the "GPS" was disconnected because of "a problem with the vehicle." However,

he denied being questioned about any issues with his work and denied lying

about his whereabouts.

James confirmed that when he resigned to take "another job offer from a

different company," Charles told him during his exit interview that he had

already made a decision "to fire [Kent]" and James's resignation "actually made

it easier for [him]." Charles explained to James that he was firing Kent because

he had "unplugged . . . the [GPS] . . . in the van," and "went home at lunch

numerous times and lied . . . about it."

James testified that when he relayed the information to Kent, Kent became

"a little upset." James acknowledged that during the December 16 encounter,

Kent became "loud" after Charles fired him. However, according to James, Kent

was not "threatening." Instead, Kent tried to respond to their accusations

regarding him "unplugging the [GPS]" but "they really didn't want to hear it."

After Charles threatened to call the police, he and Kent "packed up and . . . left."

The Appeal Tribunal reversed the Deputy. In its February 20, 2020

written decision, the Appeal Tribunal determined:

In this matter, [Kent] was discharged for insubordination, yelling and being confrontational with

A-3859-19 7 the employer. Here, [Kent] contends that he did not yell and threaten the employer on [December 16, 2019]. [Kent's] contention is not found to be credible in light of the employer's testimony that [Kent] was yelling and confrontational about why he was terminated and is given more weight as it is likely that [Kent] was upset over being told that he was going to be terminated by another party other than the employer and the employer had not made the decision to terminate [Kent] at that time. Hence, [Kent's] actions in being insubordinate and yelling and being confrontational with the employer shows a disregard of the employer's interest, and a disregard of the standards of behavior which the employer had the right to expect of his employees and the discharge was for misconduct connected with the work and [Kent] is disqualified for benefits under N.J.S.A. 34:21-5(b) as of [December 15, 2019] through [January 25, 2020].

On February 24, 2020, Kent appealed to the Board disputing the facts

supplied by his employer and urging the Board to review the audio files from

the December 16 incident that were included with Kent's appeal. In its April 30,

2020 decision, the Board affirmed the Appeal Tribunal "[o]n the basis of the

record below." The Board explained that "there [was] no valid ground for a

further hearing" because Kent "was given a full and impartial hearing and a

complete opportunity to offer any and all evidence."

On July 9, 2020, Kent filed this ensuing appeal. On March 15, 2021, we

granted Kent's motion to supplement the record with the audio recordings of the

December 16 incident and Kent's certified driver's abstract showing that he did

A-3859-19 8 not receive any moving violations while employed with 360 Fire Prevention. 2

The audio recordings appear to support the account provided by Kent and his

brother concerning the December 16 incident. On appeal, pointing to the audio

recordings "proving that he did not threaten his employer," Kent argues his

employer failed to meet "the burden of proof" to establish misconduct on his

part and the Board's contrary determination "was not supported by [sufficient]

credible evidence" in the record.

Ordinarily, "[o]ur scope of review of an administrative agency action is

limited and highly deferential." In re Y.L., 437 N.J. Super. 409, 412 (App. Div.

2014). "So long as the Board's decision is supported by sufficient credible

evidence in the record and was neither 'arbitrary, capricious, [nor] unreasonable,'

it will be affirmed." Ibid. (alteration in original) (quoting Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997)). In making this determination, we "must

examine: '(1) whether the agency's decision conforms with relevant law; (2)

whether the decision is supported by substantial credible evidence in the record;

and (3) whether, in applying the law to the facts, the administrative agency

clearly erred in reaching its conclusion.'" Ibid. (quoting Twp. Pharmacy v. Div.

2 The Board took no position on Kent's motion to supplement the record. A-3859-19 9 of Med. Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (App. Div.

2013)).

We also normally "review factual findings made by an administrative

agency deferentially." Ibid. "On appeal, 'the test is not whether an appellate

court would come to the same conclusion if the original determination was its

to make, but rather whether the factfinder could reasonably so conclude upon

the proofs.'" Ibid. (quoting Brady, 152 N.J. at 210). "So long as the 'factual

findings are supported "by sufficient credible evidence, courts are obliged to

accept them."'" Ibid. (quoting Brady, 152 N.J. at 210).

"Application of the substantial evidence rule presupposes an adequate

opportunity by the party against whom a decision has been rendered to have

marshalled and offered evidence." Jones v. Dep't of Corr., 359 N.J. Super. 70,

75 (App. Div. 2003). Additionally, when "an agency 'overlook[s] or

underevaluat[es] . . . crucial evidence,' a reviewing court may set aside the

agency's decision." Cottman v. Bd. of Review, 454 N.J. Super. 166, 171 (App.

Div. 2018) (alterations in original) (quoting Trantino v. New Jersey State Parole

Bd., 166 N.J. 113, 192 (2001)).

New Jersey's Unemployment Compensation Law is designed to reduce the

impact of unemployment for workers who become unemployed without fault.

A-3859-19 10 Brady, 152 N.J. at 221-22. However, N.J.S.A. 43:21-5(b) disqualifies

individuals from benefits for six weeks when "the individual has been suspended

or discharged for misconduct connected with the work. . . ." N.J.S.A. 43:21-

5(b) defines "misconduct" as:

[C]onduct 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. . . .

"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). "Inadvertent or unintentional

acts, or simple neglectful conduct not amounting to a wanton disregard of

consequences, will not so qualify." Id. at 38-39.

The Administrative Code defines insubordination as "an act of 'simple

misconduct'" that permits discharge and requires that the employee satisfy 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

A-3859-19 11 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.]

Insubordination has also been defined as: "'a wil[l]ful refusal of submission' to

the authority of her superiors," Laba v. Newark Bd. of Educ., 23 N.J. 364, 385

(1957) (quoting Harrison v. State Bd. of Educ., 134 N.J.L. 502, 505 (Sup. Ct.

1946)); the "willful disregard of an employer's instructions," or an "act of

disobedience to proper authority." Black's Law Dictionary 802 (7th ed. 1999).

"To sustain disqualification from benefits because of misconduct under

. . . subsection (b), the burden of proof is upon the employer, who shall, prior to

a determination by the department of misconduct, provide written

documentation demonstrating that the employee's actions constitute misconduct

. . . ." N.J.S.A. 43:21-5(b). In some cases, courts have found that "a single

incident can constitute misconduct." Smith v. Bd. of Review, 281 N.J. Super.

426, 432 (App. Div. 1995) (finding that an orderly who brought food to a

preoperative patient after being specifically instructed by a nurse that the patient

was not to be fed, was disqualified from benefits based on misconduct).

A-3859-19 12 However, the court in Demech found that "the single episode of spontaneous

minor violence made in response to clearly provocative conduct cannot be

considered misconduct in an unemployment compensation context" when an

employee hurled a twenty-five-pound roast at a co-worker who had persistently

and unremittingly verbally and physically abused her. 167 N.J. Super. at 40.

Here, the Appeal Tribunal found that Charles "was going to talk to [Kent]"

about "issues regarding speeding and not following protocol and not telling the

truth about his whereabouts during the work day" and "then consider termination

if he did not feel that his answers were truthful." (Emphasis added). However,

the Tribunal determined that the "misconduct connected with the work" for

which Kent was terminated constituted "insubordination, yelling and being

confrontational with the employer" during the December 16 encounter. In

reaching that conclusion, the Tribunal accepted the employer's account of the

December 16 incident and rejected Kent's version as lacking credibility.

Neither the Tribunal nor the Board addressed the audio recordings

provided by Kent to support his appeal. Because the audio recordings, which

provided crucial evidence to discredit the employer's account and confirm Kent's

version, were clearly overlooked, we are obliged to "set aside the agency's

decision." Cottman, 454 N.J. Super. at 171. We conclude that the Board acted

A-3859-19 13 unreasonably in declining to reopen the record so that the audio recordings could

be considered. The Board, through the Tribunal or itself, shall reopen the record,

consider the audio recordings and any evidence produced in response, re-

evaluate the evidence in the record, and issue a new decision on Kent's request

for unemployment benefits. 3 We do not offer a view on the merits of Kent's

entitlement to benefits; rather, those issues are to be decided anew by the Board

on the augmented record.

Vacated and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.

3 We note that while the employer's allegations about Kent's job performance may have constituted misconduct connected with the work to sustain Kent's discharge under N.J.S.A. 43:21-5(b), the Tribunal specifically found that Kent was not terminated based on those allegations which Kent also disputed. A-3859-19 14