WESTLY R. MANDOSKE VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3399-17T1
WESTLY R. MANDOSKE,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and BRIGHT IDEA LED
INCORPORATED,
Respondents.
_____________________________
Argued March 4, 2019 – Decided June 27, 2019
Before Judges Haas and Sumners.
On appeal from the Board of Review, Department of
Labor, Docket No. 137,832.
Westly R. Mandoske, appellant, argued the cause pro
se.
Alexis F. Fedorchak, Deputy Attorney General, argued
the cause for respondent Board of Review (Gurbir S.
Grewal, Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of counsel;
Elizabeth A. Davies, Deputy Attorney General, on the
brief).
John E. Shields, Jr. argued the cause or respondent
Bright Idea LED Inc. (Helmer Conley & Kasselman,
PA, attorneys; Gary D. Thompson, on the brief).
PER CURIAM
Claimant Westly Mandoske appeals from the February 22, 2018 final
agency decision of the Board of Review (Board), affirming the decision of the
Appeal Tribunal deeming him disqualified for unemployment benefits from
October 29, 2017 through January 20, 2018, under N.J.S.A. 43:21-5(b), because
his insubordination led him to be discharged for simple misconduct. For the
reasons that follow, we affirm.
After Mandoske was initially granted unemployment benefits without
disqualification, his employer Bright Idea LED Incorporated appealed, resulting
in a hearing before the Appeal Tribunal. We glean the following pertinent facts
from the hearing.
Mandoske began employment as an Executive Assistant with Bright Idea
LED on September 12, 2016. He reported to the company's owner and CEO,
Paul Wexler, and Office Manager, Heidi Wexler, Paul's wife. On August 17,
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2017, Heidi 1 verbally reprimanded Mandoske for showing lack of respect to Paul
when Mandoske emailed Paul expressing his dissent over Paul's decision not to
agree to a 401k employee retirement plan that Mandoske had been working on.
Paul had responded to Mandoske – about an hour later – with an emotionally
charged email stating that he rejected the plan for business reasons. Heidi also
told Mandoske that he would be terminated if his unacceptable rude behavior to
the company owners continued. After speaking with Heidi, Mandoske sent an
email apology to Paul, which acknowledged his behavior was "rude,
insubordinate, and demeaning[,]" and based on uninformed facts.
Over two months later, Mandoske was terminated due to another incident
of disrespectful behavior towards Paul. On October 31, after returning from a
trip to Florida, Paul was at home recovering from the flu when he had a
telephone conversation with Mandoske regarding a customer contract. After
Mandoske told Paul that he did not know what he was talking about, he further
stated, "go fuck yourself Paul." Mandoske was fired that day. He told Heidi
that he had no excuse for his behavior. According to Mandoske, he did not
direct any profanity towards Paul.
1
We use the Wexler's first names because they share the same last name; we
intend no disrespect.
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Finding Mandoske was terminated because he did not "exhibit[] the
appropriate level of respect towards management[,]" the Appeal Tribunal
determined he was "disqualified for benefits under N.J.S.A. 43:21-5(b), from
[October 29, 2017,] through [January 20, 2018], as the discharge was for simple
misconduct connected with the work." In its February 22, 2018 final agency
decision, the Board agreed with the decision.
Before us, Mandoske contends that his speech was not sufficient cause for
termination and to disqualify him for benefits due to simple misconduct. He
also argues that Bright Idea LED failed to prove its allegations with direct
evidence. We are unpersuaded.
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.
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
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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, 160
(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
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.
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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 Mandoske was
terminated 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. Moreover, as we have held in the
past, insubordination qualifies as misconduct under case law. Borowinski v.
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Board of Review, 346 N.J. Super. 242, 246 (App. Div. 2001); Broderick v. Board
of Review, 133 N.J. Super. 30, 33 (App. Div. 1975).
Affirmed.
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