ADISSAYA MACKIN VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 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NOT FOR PUBLICATION WITHOUT THE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
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-2835-17T2
ADISSAYA MACKIN,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and LERNER NEW YORK, INC.,
Respondents.
_____________________________
Submitted March 11, 2019 – Decided April 15, 2019
Before Judges Messano and Gooden Brown.
On appeal from the Board of Review, Department of
Labor, Docket No. 130,177.
Adissaya Mackin, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Daniel Pierre,
Deputy Attorney General, on the brief).
Respondent Lerner New York, Inc., has not filed a
brief.
PER CURIAM
Adissaya Mackin worked for Lerner New York, Inc. (Lerner) from May
2016 to July 30, 2017. She applied for unemployment benefits, and the Deputy
concluded she was eligible for benefits. Lerner appealed, and the Appeal
Tribunal (Tribunal) postponed the first hearing due to a family medical
emergency involving Lerner's representative witness. A rescheduled telephonic
hearing took place on November 20, 2017, but Mackin did not participate.
The Tribunal found that Lerner had discharged Mackin for violating
company policy regarding the return of damaged goods to the manufacturer.
Mackin discarded the damaged goods, instead of attaching "damage tags" for
their return, causing a loss to Lerner. The Tribunal found Mackin's actions
"constitute[d] a disregard of the employer's interest, a violation of the employer's
known rules, and a disregard of the standards of behavior which the employer
had the right to expect . . . especially since the claimant was in a managerial
position." Because Mackin received "no prior warnings for this type of
violation," the Tribunal concluded "the discharge was for simple misconduct[,]"
and disqualified her for benefits pursuant to N.J.S.A. 43:21-5(b).
The Director of Unemployment Insurance mailed Mackin a refund request
requiring the return of $889 in benefits. Mackin then filed an appeal to the
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Board of Review (Board). She claimed that she did not violate company policy
because it was impossible to attach tags to damaged pieces of jewelry. The
Board found that Mackin failed to demonstrate any good cause for her non-
appearance before the Tribunal. It affirmed the decision of the Tribunal.
Before us, Mackin does not challenge the Board's conclusion that her
failure to appear before the Tribunal was unexplained and unexcused. Instead,
she contends for the first time that Lerner failed to issue a written warning before
termination and, therefore, improperly terminated her. We agree with the Board
that Mackin never raised this issue at any level in the administrative
proceedings, and we refuse to consider it for the first time on appeal. See In re
Bd. of Educ. of Boonton, 99 N.J. 523, 536 (1985) (refusing to consider issue not
raised before hearing examiner) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973)). We otherwise affirm.
Our review of final agency action is quite limited. Brady v. Bd. of
Review, 152 N.J. 197, 210 (1997). "In reviewing the factual findings made in
an unemployment compensation proceeding, the test is not whether [we] would
come to the same conclusion if the original determination was [ours] to make,
but rather whether the factfinder could reasonably so conclude upon the proofs."
Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.
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1985)). "If the Board's factual findings are supported 'by sufficient credible
evidence, [we] are obliged to accept them.'" Ibid.; see also Bustard v. Bd. of
Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's "action
was arbitrary, capricious, or unreasonable" should it be disturbed. Brady, 152
N.J. at 210.
We set forth at length the history of N.J.S.A. 43:21-5(b) and
accompanying regulations in In re N.J.A.C. 12:17-2.1, 450 N.J. Super. 152
(App. Div. 2017). At the time of the Board's decision, the statute did not define
"misconduct connected with the work," and included other categories — severe
and gross misconduct — that compelled a greater period of disqualification from
benefits. N.J.S.A. 43:21-5(b).
An employee is considered "discharged for an act of simple misconduct"
if he or she "committed an act of 'simple misconduct' and . . . [v]iolated 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(a)(3). N.J.A.C. 12:17-2.1 defines
"simple misconduct" as
neither "severe misconduct" nor "gross misconduct"
and . . . an act of wanton or willful disregard of the
employer's interest, a deliberate violation of the
employer's rules, a disregard of standards of behavior
that the employer has the right to expect of his or her
employee, or negligence in such degree or recurrence
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as to manifest culpability, wrongful intent, or evil
design, or show an intentional and substantial disregard
of the employer's interest or of the employee's duties
and obligations to the employer.
We set aside this definition, stayed our decision and provided the Department
of Labor and Workforce Development an opportunity to promulgate a new
regulation. In re N.J.A.C. 12:17-2.1, 450 N.J. Super. at 173.
While the stay was in effect, the Legislature amended N.J.S.A. 43:21-5(b).
L. 2018, c. 112. It eliminated the category of "severe misconduct," and defined
"misconduct" as
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.
[N.J.S.A. 43:21-5(b).]
As of today, however, the regulations have not been changed.
In any event, the Board's factual findings are supported by sufficient,
credible evidence in the record, as is its conclusion that Mackin was terminated
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for a "disregard of [the] standards of behavior that the employer ha[d a] right to
expect . . . ." N.J.A.C. 12:17-2.1.
Affirmed.
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