NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Jessica Balseca Cadena ("Cadena") appeals from a final determination of the Board of Review ("Board") dated June 14, 2013, which found that she is disqualified for unemployment compensation benefits as of April 15, 2012, pursuant to N.J.S.A. 43:21-5(b), for severe misconduct connected with work. We affirm.

This appeal arises from the following facts. In September 2001, Cadena began her employment with the Hudson County Division of Welfare (the "County" or "Division"). Cadena had various responsibilities relating to social work and child support services. During her tenure, Cadena was responsible for interviewing clients and determining eligibility for welfare benefits and rental assistance.

When trained, all of the Division's employees are provided with a document that states in pertinent part that, "[e]mployees are to keep all employee-client relationships on a professional basis [only]." In addition, the Division's employees are required to sign another form, which states in part that persons seeking or receiving public assistance or welfare services may not be subject to discrimination on the basis of "race, color, national origin, disability or age[.]" This form also states that the New Jersey Department of Human Services has directed that there can be no discrimination on the basis of "sex, religion, political beliefs, age, mar[it]al, parental or birth status." Cadena signed that form on July 16, 2007.

Cadena was thereafter reprimanded on several occasions for engaging in religious activity with the Division's clients. In November 2006, Cadena's supervisor warned her to stop asking the clients to pray with her at her desk. In August 2007, Cadena received a non-disciplinary counseling notice, which stated that she had been reprimanded orally regarding a complaint about religious activity in the workplace. In January 2010, Cadena was suspended six and one-half days after she signed a stipulation of settlement resolving charges of failure to perform duties, insubordination and conduct unbecoming a public employee.

In February 2010, Cadena was suspended again after one of the Division's vendors reported that she had coerced a Division client to attend religious services on several occasions. According to the vendor, the client had feared the loss of benefits and homelessness. Cadena was charged with conduct unbecoming a public employee, failure to perform duties, insubordination, misuse of public property, and "[o]ther sufficient cause" for suspension, demotion, and/or removal. The Division also asserted that Cadena had engaged in unprofessional conduct, violated the Division's work rules, and violated client confidentiality.

Cadena signed another settlement agreement resolving these charges. She was suspended for 120 days, but was only required to serve a thirty-day suspension, with the remaining days held in abeyance for a one-year probationary period. Cadena also was demoted.

In October 2011, Cadena unsuccessfully sought reinstatement to her former position. She also filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC determined that Cadena had not established a violation with respect to her claims of unlawful discrimination and retaliation. The EEOC authorized Cadena to file a lawsuit raising her claims within ninety days, but she did not do so.

On March 27, 2012, Cadena was observed by her supervisor engaging in religious discussions with one of the Division's welfare clients. The client submitted a sworn statement in which she stated that Cadena had complimented her on her attire and began a conversation concerning Christianity that lasted five minutes. Thereafter, Cadena handed the client a three-page document, which contained various passages from the Bible, as well as comments about Jesus Christ and Christianity.

Cadena's supervisor reported the incident to her superiors. She then approached Cadena, in the presence of a union official. According to the supervisor, Cadena indicated that when the "Holy Spirit moves her to speak to someone, she does." The supervisor cautioned Cadena that the State had forbidden the spreading of the Gospel in the workplace. Cadena was told that, due to her past record in this regard, she should refrain from this type of activity.

In a written statement dated March 30, 2012, Cadena did not deny that she had spoken to a client about religion. Cadena wrote that she had "opened up [her] mouth and share[d] the gospel of the wonderful good news" about Jesus Christ to a welfare client who had been assigned to the office. She also acknowledged her past disciplinary record, and that she had agreed to refrain from this conduct in the future.

In April 2012, Cadena was interviewed by a personnel officer. She refused to stop speaking about Jesus in the workplace. Cadena was suspended. In July 2012, the County conducted a departmental disciplinary hearing. The welfare client involved in the March 27, 2012 incident; Cadena's supervisor; and Robert Knapp ("Knapp"), the County's deputy welfare director, testified at that hearing.

The hearing officer determined that Cadena had violated the County's policy precluding unprofessional conduct with clients. The hearing officer ordered that Cadena be terminated immediately, based on charges of insubordination, conduct unbecoming a public employee, neglect of duty and "other [s]ufficient [c]ause."

Thereafter, Cadena filed an application for unemployment compensation benefits. On August 27, 2012, a deputy claims examiner in the Department of Labor determined that Cadena was disqualified from receiving benefits. Cadena appealed and the Appeal Tribunal conducted three telephonic hearings on the matter.

Knapp testified that despite the suspensions, verbal and written warnings, and settlement agreements, Cadena continued to discuss religious matters with the Division's clients. Knapp said the Division had no choice but to terminate Cadena's employment. Cadena insisted that her termination was not for misconduct, but was due to unfair discrimination on the basis of religion and the expression of religion. She claimed that she had never been provided with information indicating that the discussion of religion was prohibited in the workplace.

The appeals examiner issued a decision on April 9, 2013, finding that Cadena was disqualified for benefits due to severe misconduct connected with the work. The examiner stated the County had submitted indisputable evidence that it had made repeated efforts to have Cadena correct her "improper behavior." Cadena had been specifically instructed to refrain from any religious discussions in the workplace and warned of the potential consequences of failing to do so, but she continued to engage in this conduct.

Cadena filed an appeal to the Board from the decision of the Appeal Tribunal. The Board issued its final decision in the matter on June 14, 2013, affirming the Appeal Tribunal's decision. This appeal followed.1

On appeal, Cadena argues that she was wrongfully terminated for refusing to "obey an order" that had never been posted before or set forth in any regulations. She contends she has been the subject of unlawful discrimination and retaliation. She asserts that the disciplinary action was based at least partially upon a false allegation. She claims that the County created a "hostile stipulation" in the employment contract, in order to threaten her and damage her reputation, professional career and livelihood.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We can only intervene "`in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Furthermore, "`[i]n 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 factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App. Div. 1985)).

We are convinced that there is sufficient credible evidence in the record to support the Board's determination that Cadena engaged in severe misconduct in connection with her work and was therefore disqualified for benefits pursuant to N.J.S.A. 43:21-5(b). The statute provides that an individual is disqualified for benefits for the week in which he or she "has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow that week, as determined in each case." Ibid.

In addition, under N.J.S.A. 43:21-5(b), an individual is disqualified for benefits for the week in which he or she "has been suspended or discharged for severe misconduct connected with the work[.]" The disqualification continues "for each week" after the suspension or discharge, until the individual becomes reemployed, has worked four weeks and earned at least six times the individual's weekly benefit rate. Ibid.

An individual also is disqualified for benefits if discharged for "gross misconduct connected with the work[,]" which is defined as the commission of an act punishable as an offense of the first, second, third or fourth-degree under the Criminal Code. Ibid. The disqualification is for the period specified in subsection (a) of the statute. Ibid. Under the statute, the individual is disqualified for benefits for the week in which he or she has been discharged, and for each week thereafter until he or she has worked eight weeks and has earned at least ten times the individual's weekly benefit rate. N.J.S.A. 43:21-5(a).

In 2003, the Department of Labor and Workforce Development ("Department") promulgated a regulation defining "misconduct" for purposes of the disqualification for benefits under N.J.S.A. 43:21-5(b). Silver v. Bd. of Review, 430 N.J.Super. 44, 52-53 (App. Div. 2013) (citing N.J.A.C. 12:17-10.2(a)). The regulation, which has since been repealed,2 stated that "[f]or an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." Ibid. (internal quotation marks and citation omitted).

N.J.S.A. 43:21-5(b) does not define the term "severe misconduct." The statute provides, however, that

In Silver, supra, 430 N.J. Super. at 55, we held that the term "misconduct" should have the same meaning throughout N.J.S.A. 43:21-5(b) and the implementing regulation. We noted that, "if read literally," two of the examples of severe misconduct mentioned in the statute, specifically "repeated violations of an employer's rule or policy" and "repeated lateness or absences after a written warning[,]" could be conduct that is not necessarily deliberate, intentional or malicious. Ibid. (internal quotation marks omitted).

We concluded that these two examples of severe misconduct must be construed to require "acts done intentionally, deliberately, and with malice." Ibid. We stated that

Since that case was decided, the Department has promulgated new regulations defining "[s]evere misconduct[.]" N.J.A.C. 12:17-2.1; see also 46 N.J.R. 1796(a); 47 N.J.R. 1009(a). The term now "means an act which (1) constitutes `simple misconduct,' as that term is defined in [N.J.A.C. 12:17-2.1]; (2) is both deliberate and malicious; and (3) is not `gross misconduct.'" N.J.A.C. 12:17-2.1. Simple misconduct is defined as

Finally, "[g]ross misconduct" is defined as "an act punishable as a crime of the first, second, third, or fourth degree under the [Criminal Code]." Ibid. Notably, the Department also defined the term "[m]alicious" as "an act . . . done with 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." Ibid.

We conclude that there is sufficient credible evidence in the record to support the Board's finding that Cadena violated the County's policy and disregarded standards of behavior that the County had a right to expect by repeatedly discussing religious matters with the Division's clients, despite multiple warnings and progressive discipline. The evidence supports the Board's determination that Cadena's actions were intentional, deliberate, and malicious. We note that the Board's decision was made before the implementing regulation was amended; however, we are convinced the same decision could have been made if the revised regulation applied. We conclude the Board properly found that Cadena was disqualified for benefits due to severe misconduct connected with the work.

We have considered all of Cadena's arguments and conclude that they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.