BRIAN L. TAYLOR v. BOARD OF REVIEW DEPARTMENT OF LABOR and AM RETAIL GROUP, INC

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5503-18

BRIAN L. TAYLOR,

         Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and AM RETAIL GROUP, INC.,

     Respondents.
___________________________

                   Argued September 14, 2021 – Decided September 29, 2021

                   Before Judges Currier, DeAlmeida, and Smith.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 181,020.

                   Brian L. Taylor, appellant, argued the cause pro se.

                   Rimma Razhba, Deputy Attorney General, argued the
                   cause for respondent Department of Labor (Andrew J.
                   Bruck, Acting Attorney General, attorney; Sookie Bae-
                   Park, Assistant Attorney General, of counsel; Rimma
                   Razhba, on the brief).

PER CURIAM
      Petitioner Brian L. Taylor (Taylor) appeals from the final decision of the

Department of Labor Board of Review (Board) disqualifying him for

unemployment benefits due to Taylor's employer terminating him for cause. For

the reasons set forth below, we affirm.

      On September 26, 2018, Taylor began part-time employment as a sales

associate for AM Retail.     On April 11, 2019, Taylor witnessed a hostile

confrontation between two co-workers that left one worker visibly upset.

Shortly thereafter, in front of his supervisor and co-workers, Taylor told one of

the co-workers, "[i]f you did anything to upset [the other worker], I'll fucking

flip you over and break your fucking neck." AM Retail's applicable employee

policy handbook had a code of conduct provision, which prohibited "[a]ll forms

of unlawful conduct, including threatening or intimidating behavior, threats,

assaults or violence of any kind in [the] workplace."       It further stated an

employee could be immediately discharged for such infractions. AM Retail's

store manager sent Taylor home. One day after sending him home, AM Retail

fired Taylor.

      Taylor filed a claim for unemployment benefits on April 12, 2019. On

May 1, 2019, a Board deputy disqualified Taylor from receiving unemployment

benefits between April 7, 2019 and May 18, 2019 because he was discharged

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due to misconduct at work. The deputy found Taylor's employer informed him

of the company policy and that his actions constituted "a willful and deliberate

disregard of the standards of behavior [which AM Retail] had a right to expect."

Taylor appealed the deputy's determination to the Appeal Tribunal (Tribunal)

on May 8, 2019.

       The Tribunal conducted an initial hearing on May 30, 2019. Taylor and

his manager testified. Taylor admitted to threatening his co-worker's safety.

Taylor testified that he did not receive any warnings from his employer before

he was fired, and also alleged that he was discriminated against based on his

age.

       Taylor's manager cited AM Retail's employee handbook, which permits

managers to terminate employees without progressive discipline for threatening

or intimidating behavior in the workplace. Taylor's manager also noted that

Taylor had never received any previous warnings, but that Taylor's conduct on

April 11 was a terminable offense.

       The Tribunal's initial decision was rendered on June 7, 2019. It found that

Taylor made a threatening remark to his co-worker and rejected Taylor's

contention that he was not properly trained by AM Retail. In its initial decision

the Tribunal noted that "it [was] not reasonable to believe that [Taylor] would


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need to receive a handbook stating that threatening another employee violated

company policy." The Tribunal concluded that Taylor's actions constituted

misconduct under  N.J.S.A. 43:21-5(b) and disqualified him from receiving

unemployment benefits between April 7, 2019 and May 18, 2019.

      Taylor appealed the initial decision. On July 31, 2019, the Board adopted

the Tribunal's findings and issued its final decision confirming disqualification.

Taylor appealed the final decision, arguing several points, only two of which are

cogent enough to be addressed here. First, Taylor argues that he did not receive

an employee handbook or "training guide" and was never counseled in advance

regarding what were "terminable offenses" by his employer, AM Retail.

Second, Taylor argues that AM Retail discriminated against him on the basis of

age when they fired him.

      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 inconsistent with the applicable law. Ibid.; see In re Warren,

 117 N.J. 295, 296-97 (1989). "If the Board's factual findings are supported 'by

sufficient credible evidence, courts are obliged to accept them.'" Brady,  152 N.J. at 210 (quoting Self v. Bd. of Review,  91 N.J. 453, 459 (1982)). Thus, "[i]n


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reviewing the factual findings made in an unemployment compensation

proceeding, the test is not whether an appellate court would come to the same

conclusion if the original determination was its to make, but rather whether the

fact finder could reasonably so conclude upon the proofs." Ibid. (alteration in

original) (quoting Charatan v. Bd. of Review,  200 N.J. Super. 74, 79 (App. Div.

1985)). We "must . . . give due regard to the opportunity of the one who heard

the witnesses to judge their credibility." Logan v. Bd. of Review,  299 N.J.

Super. 346, 348 (App. Div. 1997) (citation omitted).

      The adjudication of claims for misconduct connected with the work is

specifically governed by N.J.A.C. 12:17-10.1 to -10.8. In Silver v. Bd. of

Review,  430 N.J. Super. 44 (App. Div. 2013), we traced the history of statutory

misconduct disqualification. Silver defines simple misconduct as "wil[l]fulness,

deliberateness, intention, and malice." Id. at 58. We have held "'intention[]' and

'malic[e]' as used in the regulation . . . include[s] deliberate disregard of the

employer's rules or policies, or deliberate disregard of the standards of behavior

that the employer has the right to expect of an employee." In re N.J.A.C. 12:17-

2.1,  450 N.J. Super. 152, 162 (App. Div. 2017) (emphasis in original) (quoting

Silver,  430 N.J. Super. at 56).




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      The Board's regulations concerning discharge for misconduct read as

follows:

            An individual shall be considered to have been
            discharged for an act of misconduct where it is
            established that he or she has committed an act of
            "misconduct" and met one of the following:

                  1. Refused without good cause to comply
                  with instructions from the employer,
                  which were lawful, reasonable, and did
                  not require the individual to perform
                  services beyond the scope of his or her
                  customary job duties;

                  2. Acted beyond the expressed or implied
                  authority granted to the individual by the
                  employer; or

                  3. Violated 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).]

      Taylor argues that the Board was arbitrary and capricious because AM

Retail never issued him a handbook warning that he could be fired for

threatening a fellow employee.     This argument misses the point.     Taylor

admitted that he threatened the safety of his co-worker while at work. Whether

AM Retail issued a handbook or not, he knew or should have known that




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threatening another employee at work would constitute a firing offense.

N.J.A.C. 12:17-10.5(a)(3).

      Taylor also alleges age discrimination. We express no opinion regarding

the timeliness or substance of Taylor's discrimination claim except to note that

the Board of Review is not the proper forum. See Rodriguez v. Raymours

Furniture Co., Inc.,  225 N.J. 343, 358 (2016) (stating "to pursue relief under the

LAD, a person alleging discrimination can file a complaint with the [New Jersey

Division on Civil Rights] within six months of the cause of action or file a direct

suit in the Superior Court within two years");  N.J.S.A. 10:5-13;  N.J.S.A. 10:5-

18; see Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A.,  168 N.J. 124, 131 (2001) (an "employee may pursue an administrative remedy by

filing a verified complaint with the [New Jersey Division on Civil Rights], or

[they] may file suit in the Law Division of the Superior Court.").

      Taylor next posits several arguments that were not raised in the agency

proceedings. Generally, with few exceptions, this court may decline to consider

questions or issues not properly raised before the Board. Zaman v. Felton,  219 N.J. 199, 226-27 (2014); Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234

(1973). Because Taylor's remaining arguments lack sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), we exercise that prerogative.


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Affirmed.




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