REEM SALEM v. BOARD OF REVIEW, DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE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-5532-15T3

REEM SALEM,

        Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR and HACKENSACK
UNIVERSITY MEDICAL CENTER,

        Respondent-Respondent.

______________________________

              Submitted December 20, 2017 – Decided January 31, 2018

              Before Judges Currier and Geiger.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 087,405.

              James Harrison Banks, attorney for appellant.

              Christopher S. Porrino, 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   Hackensack  University             Medical
              Center has not filed a brief.

PER CURIAM
      Claimant Reem Salem appeals from the July 12, 2016 decision

of   the    Board     of   Review      (Board)   finding        her   ineligible        for

unemployment benefits pursuant to 
N.J.S.A. 43:21-5(b) as a result

of severe misconduct connected to the work.                 After a review of the

contentions in light of the record and applicable principles of

law, we affirm.

      Claimant was employed as a teacher in the childcare center

of the Hackensack University Medical Center (HUMC).                              She was

responsible for children aged eighteen months to three years.

After      her    suspension     and    subsequent       termination        from     HUMC,

claimant submitted a claim for unemployment benefits.                        The Deputy

Director of Unemployment Insurance determined that claimant had

been discharged for severe misconduct connected to her work and,

therefore, she was disqualified from benefits.

      Following        claimant's       appeal     of     the     determination,           a

telephonic hearing was conducted before the Appeal Tribunal.                               A

representative of claimant's employer testified as to numerous

incidents        through   the   years     in    which    claimant         had   violated

workplace policies and procedures, placing the children at risk

of harm.         These incidents included using hot oil to cook food in

the classroom, leaving bleach in an orange juice container within

reach of the children, disregarding the proscribed procedures

during     fire     drills,    and   distributing        pennies      to    children,      a

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potential choking hazard.        Verbal and written warnings were issued

to claimant for these violations.            Claimant had received similar

warnings    for   poor   work    performance       and    had       previously     been

suspended for several days for her poor performance just weeks

before her discharge.

     The employer described the incident that led to claimant's

suspension as "the straw that broke the camel's back."                    She stated

that claimant took a child who was potentially experiencing an

anaphylactic      allergic    reaction      onto    an      elevator      alone,    in

violation of HUMC's strict policy of never being alone with any

child or taking a child behind closed doors.                        This is for the

safety and well-being of the child and "protects the professional

liability issues."

     Claimant's      direct     manager     testified       that      policies     and

procedures    are   reviewed     during     monthly      staff       meetings.       In

addition,    licensing   regulations        require      all    staff    members    to

undergo ten hours of additional training yearly.                         The manager

explained    that    claimant     had     been     placed      on    a   Performance

Improvement Plan but she did not make any effort to improve in her

job responsibilities.        The manager stated:

            The write-ups and the verbal . . . and the
            subsequent suspension were all about the same
            thing. It was that we were not only not seeing
            improvement in the classroom, there was
            blatant disregard for the process for the

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           guidance and coaching she was being given and
           [a disregard for] that coaching.     She was
           exhibiting extremely poor judgment in the
           classroom that was adversely affecting the
           children in her care and so we continued down
           the progressive discipline policy until that
           final incident was just cause for termination
           in our eyes.

    Claimant denied being instructed not to use an elevator alone

with a child.    She also stated that she was either not at fault

for any of the policy and procedure violations or that she was

unaware of the specific procedures.       Claimant advised that she

never intended any harm to the children in her care.

    The Appeal Tribunal affirmed the Deputy's determination,

finding   that   claimant   was   disqualified   from   benefits     under


N.J.S.A. 43:21-5(b) "as the discharge was for severe misconduct

connected with the work."     The Tribunal stated:

           [A]t the hearing the claimant demonstrated a
           clear pattern of reacting poorly in key
           situations where the safety and wellbeing of
           the children in her care [were] put at
           significant risk.    The claimant was working
           in a key position which required that she
           either   mentally    prepare   for   emergency
           situations, such as a fire drill or a child's
           allergic reaction, or know the exact policies
           involved or at least use common sense to react
           appropriately.    The fact that the claimant
           displayed a lack of awareness that giving
           pennies to small children could represent a
           hazard indicates to the Tribunal such a
           pattern of disregard of common sense safety
           practices that it represents at least "simple
           misconduct" as provided by N.J.A.C. 12:17-
           10.7.

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            As this disregard of safety procedures, both
            specifically enumerated in policy and by
            common sense, could be substantially certain
            to cause injury, in the form of either an
            injured child or legal action against her
            employer, the claimant's actions are found to
            rise to the level of severe misconduct as
            defined by N.J.A.C. 12:17-10.1.

The Board affirmed the Tribunal's decision.

     In this appeal, claimant argues that neither the Tribunal nor

the Board found that she acted intentionally, deliberately, or

with malice and, therefore, her alleged acts lack the intent

required for a finding of severe misconduct.

     We are mindful that our review of administrative agency

decisions is limited.         We will not disturb an agency's action

unless it was clearly "arbitrary, capricious, or unreasonable."

Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997).

     
N.J.S.A. 43:21-5(b) provides, in pertinent part, that an

employee who has been suspended or discharged for severe misconduct

connected with the work is disqualified for benefits.            The statute

provides    examples   of    severe   misconduct,    including     "repeated

violations of an employer's rule or policy."               Severe misconduct

is defined in N.J.A.C. 12:17-2.1 as "an act which (1) constitutes

'simple misconduct,' as that term is defined in this section; (2)

is   both   deliberate      and   malicious;   and   (3)    is   not    'gross

misconduct.'"    Malicious is defined as "when an act is done with

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the intent to cause injury or harm to another or others or when

an act is substantially certain to cause injury or harm to another

or others."   N.J.A.C. 12:17-2.1.

     Under these definitions, we are satisfied there was ample

support for the Board's determination that claimant's recurring

actions constituted severe misconduct connected with the work.

Claimant deliberately failed to follow her employer's policies and

procedures on multiple occasions.       Her actions, such as leaving

chemical substances unlocked, giving small children pennies, and

disregarding important safety procedures during a fire drill or

medical emergency, were substantially certain to lead to harm to

a child.   Claimant had repeatedly failed to meet her employer's

expectations, despite the issuance of numerous verbal and written

warnings and even a period of suspension.

     As we have previously stated, "[t]he repetitive violation of

a rule, policy, or standard of conduct may justify a reasonable

inference that the employee's disregard was deliberate and in that

sense malicious."    Silver v. Bd. of Review, 
430 N.J. Super. 44,

57 (App. Div. 2013).      The substantial credible evidence in the

record   supports   the   Board's   determination   that   claimant   was

disqualified from benefits.

     Affirmed.



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