RBIAI OUAZENE VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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
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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.
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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
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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."
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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
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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
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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.
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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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