                        NOT FOR PUBLICATION WITHOUT THE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-4118-15T1

RBIAI OUAZENE,

        Appellant,

v.

BOARD OF REVIEW and
DELL MARKETING LP,

     Respondents.
________________________

              Submitted August 7, 2018 – Decided August 14, 2018

              Before Judges Sabatino and Mawla.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 075,367.

              Rbiai Ouazene, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Peter H. Jenkins, Deputy Attorney
              General, on the brief).

              Respondent Dell Marketing, LP, has not filed
              a brief.

PER CURIAM
      Rbiai Ouazene appeals from an April 29, 2016 final decision

by the Board of Review, which found he was disqualified from

receiving unemployment benefits, pursuant to N.J.S.A. 43:21-5(b),

on the grounds of simple misconduct.               We affirm.

      We take the following facts from the record.                     Ouazene was

employed by Dell Marketing LP as a systems information technology

(IT) analyst from July 9, 2013 through October 9, 2015.                      Before

commencing     his      employment      with       Dell,    Ouazene     signed     an

acknowledgement that he read and agreed to abide by the Dell code

of conduct.      During his employment, Ouazene completed twelve

compliance trainings, which among other topics included: Dell's

code of conduct, information security, trade compliance, and data

protection and privacy.

      During Ouazene's employment, Dell contracted with the New

York Police Department (NYPD) narcotics division to install new

computer     systems,    decommission        old    systems,     and   provide     IT

support.     Ouazene was assigned by Dell to the NYPD, who employed

him as a contractor.        As a result, all Dell workers employed by

the   NYPD    underwent     background       checks,       and   had   orientation

regarding NYPD policies. Specifically, due to the sensitive nature

of the narcotics division work, and to protect the identity of the

officers     employed    there,   the    NYPD       maintained    a    policy    that

prohibited photography within the narcotics unit.

                                         2                                  A-4118-15T1
     NYPD reported to Dell that Ouazene had taken a photograph of

its undercover unit.           Dell's security manager interviewed Ouazene

who admitted he knew photographs were not permitted, and yet had

taken    one    photo.         During   his     interview   with    Dell    security

personnel, Ouazene claimed he saw a humorous sign in the unit and

accidentally took a photo of it.                Ouazene was specifically asked

whether    he    had    taken    any    other   photos    and   denied     doing   so.

However, eight additional photographs of the narcotics unit were

discovered      on     his   cellular    telephone,      some   which     identified

undercover police officers from the unit.                       Specifically, one

photograph was of a police officer appearing relaxed, and a second

photo depicted a group of officers gathered at a table around a

box of doughnuts with an unflattering caption displayed above the

photo.

     Dell terminated Ouazene for misconduct, specifically                          for

violating its policy requiring employees to cooperate and be

truthful during an internal investigation.                  Ouazene subsequently

filed a claim for unemployment benefits.                    The deputy director

found Ouazene eligible for benefits.               Dell appealed, and a hearing

occurred       before    the    tribunal,       which    reversed   the     deputy's

decision.

     In the proceedings before the tribunal, Ouazene claimed he

did not sign any document prohibiting him from photographing NYPD

                                           3                                 A-4118-15T1
officers.    Ouazene claimed the NYPD's own investigation of the

incident had cleared him of wrongdoing.        He also claimed his

actions were not willful and deliberate.     Ouazene claimed he had

cooperated with Dell's investigation.

     The tribunal rejected much of Ouazene's testimony, and found

credible the testimony offered on behalf of Dell.      The tribunal

concluded even without a written no-photography policy, Ouazene

had acknowledged in his testimony that all Dell staff were required

to surrender their cellular telephones when entering the unit.

The tribunal concluded

            [a] reasonable individual would understand
            that such an unusual procedure would only be
            taken if the taking of photographs or video
            was a threat to the workplace safety.      The
            only reasons [Ouazene] was allowed to retain
            his cellular telephone was [to] diagnos[e] or
            [report] problems, via photographs of hardware
            and cables.

     The tribunal also rejected Ouazene's claim he had been cleared

by the NYPD.     The tribunal found that, when Ouazene showed his

cellular telephone to the detective who questioned him, the eight

photos Dell subsequently discovered in the telephone's memory had

been deleted and "were not visible" to the detective. Furthermore,

the tribunal noted "simply because [Ouazene] was not indicted for

a criminal action does not mean [he] did not violate company

policy."


                                  4                          A-4118-15T1
     The tribunal rejected Ouazene's argument his actions were not

willful or deliberate.        The tribunal found "[Ouazene] failed to

explain   how   photographs    of    police      officers   were   related     to

information technology issues.         [Moreover,] photographing police

officers repeatedly was within [Ouazene's] control to prevent."

     Contrary   to   Ouazene's      claim   he    cooperated   during    Dell's

investigation, the tribunal concluded he was

            not forthright . . . when he initially
            informed [Dell] that he had taken one or two
            photographs. Only after [Dell] examined the
            . . . telephone did they learn that [Ouazene]
            had taken additional photographs of policemen,
            who were identified as undercover police by
            the [NYPD.]     Although [Ouazene] did not
            permanently erase the hard drive of the . . .
            telephone, his failure to inform the employer
            that he had taken other photographs is an
            attempt to minimize the extent of his
            transgression.

     The tribunal concluded Ouazene's discharge was for simple

misconduct connected with his work, and consequently disqualified

him for benefits pursuant to N.J.S.A. 43:21-5(b). Ouazene appealed

from the tribunal's decision, and the board affirmed.              This appeal

followed.

     The scope of our review of an administrative agency's final

determination is strictly limited.            Brady v. Bd. of Review, 152

N.J. 197, 210 (1997).    The agency's decision may not be disturbed

unless shown to be arbitrary, capricious, or unreasonable or


                                      5                                 A-4118-15T1
inconsistent with the applicable law.             Ibid. (citing In re Warren,

117 N.J. 295, 296 (1989)).         Therefore, "[i]f the Board's factual

findings are supported 'by sufficient credible evidence, courts

are obliged to accept them.'"               Ibid. (quoting Self v. Bd. of

Review, 91 N.J. 453, 459 (1982)).

       On appeal, Ouazene repeats the arguments he raised before the

tribunal.       N.J.A.C. 12:17-2.1 defines simple misconduct as:

               [A]n act which is neither "severe misconduct"
               nor "gross misconduct" and which is 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 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.

       In Silver v. Bd. of Review, 430 N.J. Super. 44, 48-49 (App.

Div.   2013),      we   traced   the   history     of   statutory    misconduct

disqualification, and attempts by the Department of Labor and

Workforce Development (the Department) to craft regulations in

response to changes in the statute.              At the time, the Legislature

had    added     "severe   misconduct"      as   an   intermediate    level    of

misconduct between simple and gross misconduct.             However, because

the Department had not yet adopted regulations defining the term

we held "[u]ntil any new definition is promulgated by rule, the

                                        6                               A-4118-15T1
definition contained in the present version of N.J.A.C. 12:17-

10.2(a) controls, except to the extent it is superseded by the

2010 amendment of the statute."         Id. at 55.

     Subsequently,    we   set   aside   the   regulatory    definition    of

simple misconduct because

          the regulations the Department adopted in 2015
          fail to make this critical distinction between
          simple negligence, on the one hand, and
          intentional,    deliberate,    or    malicious
          conduct, on the other hand, at least not
          consistently.     Unfortunately, the literal
          wording of N.J.A.C. 12:17-2.1 defining and
          utilizing   the   term   "simple   misconduct"
          confusingly blends concepts of negligence with
          intentional wrongdoing that cannot be sensibly
          understood or harmonized.

          [In re N.J.A.C. 12:17-2.1, 450 N.J. Super.
          152, 168 (App. Div. 2017).]

     No new regulations since have been adopted.            Therefore, for

purposes of this appeal we reiterate, as we did in Silver, that

simple   misconduct    requires      "wil[l]fulness,        deliberateness,

intention, and malice."     Silver, 430 N.J. Super. at 58.

     We are satisfied there is sufficient evidence to support the

board's decision to uphold the conclusions of the tribunal.               The

objective evidence of the training Ouazene received relating to

Dell's security policy proves he had knowledge of the ban on

photography within the NYPD narcotics unit.            Moreover, Ouazene

willfully, deliberately, and intentionally violated Dell's policy.


                                    7                               A-4118-15T1
Indeed, the circumstances prove he had knowledge of the policy,

namely, the requirement Dell employees abandon their cellular

telephones before entering the unit, the limited purpose for which

Ouazene could use his telephone, and his failure to explain how

the photos he had taken of NYPD officers related to his employment

tasks.

     Additionally,      credible     evidence     supported    the   tribunal's

finding    why   the   NYPD   officer     would   have   cleared     Ouazene    of

wrongdoing, namely, the inability of the officer to recover the

photos Ouazene had deleted, which Dell later discovered.                   These

facts supported the conclusion Ouazene had deliberately violated

the workplace rules, and demonstrated a disregard of the standards

of behavior Dell had a right to expect from staff working in such

an environment.

     In sum, the evidence supported a finding Ouazene had committed

simple    misconduct    as    defined    by   N.J.A.C.   12:17-2.1,     and    the

tribunal's       findings     were      not   arbitrary,      capricious,       or

unreasonable.      The board's final decision affirming the findings

of the tribunal is supported by sufficient credible evidence in

the record and comports with the applicable law.

     Affirmed.




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