NOT FOR PUBLICATION WITHOUT THE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-1409-15T2
LATOYA THOMPSON,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, AND BERAT
CORPORATION,
Respondents.
______________________________
Argued May 10, 2017 – Decided June 12, 2017
Before Judges Hoffman and Whipple.
On appeal from Board of Review, Department of
Labor, Docket No. 065,756.
Latoya Thompson, appellant, argued the cause
pro se.
Aimee Blenner, Deputy Attorney General, argued
the cause for respondent Board of Review,
Department of Labor (Christopher S. Porrino,
Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Lauren J. Zarrillo, Deputy Attorney
General, on the brief).
Amy B. Goldstein argued the cause for
respondent Berat Corporation (Kaufman
Dolowich & Voluck, L.L.P., attorneys; Gregory
S. Hyman and Katharine W. Fogarty, on the
brief).
PER CURIAM
Appellant appeals from an October 21, 2015 decision by the
Board of Review for the New Jersey Department of Labor affirming
the denial of appellant's request for unemployment benefits. We
affirm.
Respondent Berat Corporation (Berat) hired appellant as a
part-time cashier at its Glassboro ShopRite on June 30, 2014.
Berat terminated appellant's employment on June 28, 2015, after a
customer complained she used foul language in the register line.
Appellant claims she only used profanity in response to customers
and coworkers yelling at her. When confronted, appellant admitted
she used profanity, but she asserted she was responding to
obscenities directed at her by other people in the store. She
argued she faced a hostile work environment from the time she was
hired and had filed multiple complaints with the company regarding
work conditions throughout her employment. During her employment,
her allegations of harassment were investigated and determined to
be unfounded. The store's review of surveillance footage regarding
the incident showed no one interacting with appellant. Appellant
was counseled and suspended pending termination in order for her
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to exercise the option of grieving the termination through the
union.
Appellant filed for unemployment compensation benefits on
June 28, 2015. Following the suspension, a union meeting was
scheduled, but appellant refused to participate. On July 4, 2015,
appellant submitted a letter wherein she requested her employer
"to proceed with the termination process," and "I have been forced
to resign and no-longer feel safe based on the practices that
company has subjected me to."
In a determination mailed August 5, 2015, appellant was
informed she was disqualified for unemployment benefits because
she was terminated for "severe misconduct connected with the work."
Appellant appealed, and a hearing was held on September 11, 2015.
At the hearing, appellant admitted she used profanity in front of
a customer but said it was in response to harassment from coworkers
and customers in the store. Appellant also admitted she had not
looked for work because she was undergoing treatment, but she said
she was able to work and would "always be willing to work."
On September 14, 2015, an Appeals Tribunal mailed its
decision, finding appellant was discharged for using profanity in
front of a store customer in direct violation of company policy.
The Tribunal determined appellant was not eligible for benefits
because her actions constituted simple misconduct, N.J.S.A. 43:21-
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5(b), and she had not actively sought work, N.J.S.A. 43:21-4(c).
This appeal followed.
On appeal, appellant argues she was wrongfully terminated due
to a hostile work environment, was subject to unfair practices,
and should have been determined eligible. She argues, but for her
employer's mistreatment, she would still be employed. She asserts
she did not actively seek employment because she is undergoing
medical treatment.
We maintain a limited capacity when reviewing administrative
agency decisions. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
(citing Pub. Serv. Elec. v. N.J. Dep't of Envtl. Prot., 101 N.J.
95, 103 (1985)). We will not upset the ultimate determination of
an agency unless shown that it was arbitrary, capricious or
unreasonable, it violated legislative policies expressed or
implied in the act governing the agency, or the evidence does not
support the findings on which the decision is based. Ibid.
We begin by noting our recent pronouncement invalidating the
Department of Labor and Workforce Development's definition of
"simple misconduct" as arbitrary and capricious without prejudice
to the agency's adoption of a substitute regulation in conformance
with the regulatory scheme. See In re N.J.A.C. 12:17-2.1, A-4636-
14T3 (App. Div. May 1, 2017). We review the agency's finding of
simple misconduct in light of that decision.
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Here, it was determined appellant was terminated for simple
misconduct for using profanity in the presence of a customer.1
Berat argues appellant's conduct violated appropriate courses of
customer service, as well as the store's "zero tolerance policy,"
and constituted severe misconduct, notwithstanding appellant's
assertion she was responding to harassment. Appellant argues she
was subjected to a hostile work environment but provides no
evidential support for her assertions. The record demonstrates
her employer investigated such charges and found no evidence. The
Appeals Tribunal found appellant had pursued the proper channels
to address any harassment, and while her use of inappropriate
language was unjustified, the behavior constituted simple
misconduct rather than severe misconduct. Because we have
determined the agency's definition of simple misconduct is under
review for corrective action, we decline consideration of that
premise and affirm on a different basis.2
1
An Appeals Tribunal concluded appellant was terminated
notwithstanding the assertion of Berat she resigned from her
position by a letter dated July 2, 2015.
2
In In re N.J.A.C. 12:17-2.1, we stayed our decision for a 180-
day period to enable the Department of Labor and Workforce
Development to take appropriate corrective action or pursue
further review in the Supreme Court. A-4636-14T3 (App. Div. May
1, 2017).
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We turn to the alternate basis for denying appellant's
unemployment benefits, appellant's failure to actively seek work
pursuant to N.J.S.A. 43:21-4(c)(1). We affirm the Board of
Review's determination. This statute provides that an individual
is not eligible for unemployment compensation unless the
individual "is able to work, and is available for work, and has
demonstrated to be actively seeking work." Ford v. Bd. of Review,
287 N.J. Super. 281, 284 (App. Div. 1996) (quoting N.J.S.A. 43:21-
4(c)(1)).
During the administrative hearing, appellant testified she
was able to work, was available to work but was not actively
seeking work because she was in a three-day-per week intensive
outpatient program for medication management. When asked by the
examiner if treatment precluded her from working, she testified
her doctor told her "[she] could still pursue [her] . . . endeavors
and [her] educational goals, and stuff like that." She testified
her doctor never told her she could not work, and she was "not
turning down any . . . jobs." Based on the substantial credible
evidence in the record that appellant was not seeking work pursuant
to N.J.S.A. 43:21-4(c)(1), and such a determination was not
arbitrary, capricious nor an abuse of discretion, we affirm the
decision appellant was ineligible for benefits from June 28, 2015
through September 5, 2015.
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Affirmed.
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