                                NOT FOR PUBLICATION WITHOUT THE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


                                                                            A-2835-17T2
                                         2
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.


                                                                            A-2835-17T2
                                         3
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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                                         4
            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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                                       5
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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