                                 NOT FOR PUBLICATION WITHOUT THE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-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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                                      2
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.
                                                                        A-3399-17T1
                                       3
      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


                                                                        A-3399-17T1
                                       4
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.



                                                                          A-3399-17T1
                                          5
      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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                                       6
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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