ANN T. SEIDERMAN VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2019 )


Menu:
  •                                 NOT FOR PUBLICATION WITHOUT THE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-0885-17T3
    ANN T. SEIDERMAN,
    Appellant,
    v.
    BOARD OF REVIEW,
    DEPARTMENT OF LABOR,
    and NEW BRUNSWICK
    BOARD OF EDUCATION,
    Respondent.
    ____________________________
    Submitted January 15, 2019 – Decided January 29, 2019
    Before Judges Geiger and Firko.
    On appeal from the Board of Review, Department of
    Labor, Docket No. 109,537.
    Oxfeld Cohen, PC, attorneys for appellant (Samuel B.
    Wenocur, of counsel and on the briefs).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent Board of Review (Melissa Dutton Schaffer,
    Assistant Attorney General, of counsel; Aimee Blenner,
    Deputy Attorney General, on the brief).
    Respondent New Brunswick Board of Education has
    not filed a brief.
    PER CURIAM
    Ann T. Seiderman appeals from a final agency decision of the Board of
    Review (Board), finding her disqualified from unemployment benefits after
    determining she left work voluntarily from the New Brunswick Board of
    Education (BOE) without cause attributable to her work. Seiderman argues that
    she established good cause within the meaning of N.J.S.A. 43:21-5(a), thereby
    entitling her to unemployment benefits. Since the Board's decision was based
    upon facts within the record and was consistent with relevant law, we affirm.
    I.
    Seiderman was employed by the BOE at the Lord Stirling Community
    School as a resource center teacher from September 2005 through December 31,
    2016, when she resigned from her position in lieu of tenure charges being
    brought against her. The charges stated, "despite numerous meetings between
    [] Seiderman and Board personnel, [her] overall instruction and management did
    not improve." Two Corrective Action Plans were created in September 2014
    and September 2015 as attempts to correct her "unsatisfactory professional
    competency as evidenced by the Teacher Practice Rubric." The three domains
    in the rubric included: planning and preparation, classroom environment, and
    A-0885-17T3
    2
    instruction. Between September 2014 and September 2016, she had twenty-four
    classroom visits.     Formal observations took place on six occasions and
    Seiderman repeatedly was given scores of "emerging" and "basic." Corrective
    plans were unsuccessful. Her salary increment for the 2015-2016 academic year
    was withheld because of her poor performance.
    In July 2016, Seiderman was offered a paraprofessional position subject
    to BOE approval. Seiderman refused to accept this position, even though she
    was informed that the district would proceed with tenure charges because she
    was not meeting proficiency levels.            Consequently, tenure charges for
    inefficiency were brought against her in October 2016 pursuant to N.J.S.A.
    18A:6-17.3. Seiderman was notified that the BOE would review the tenure
    charges at its November 15, 2016 meeting. She submitted her resignation on
    November 14, 2016, with an effective date of December 31, 2016.
    On January 13, 2017, the Department of Labor (DOL) issued a Notice of
    Determination,      finding   Seiderman       was   disqualified   from   receiving
    unemployment benefits as of January 1, 2017. The examiner concluded that
    "possible disciplinary action for tenure charges regarding performance" did not
    constitute good cause, and there was no evidence that her termination was
    "imminent." Seiderman filed an administrative appeal with the Appeal Tribunal
    A-0885-17T3
    3
    (Tribunal), which upheld the DOL's decision. The Board affirmed the Tribunal's
    decision.
    On appeal, Seiderman argues that the Board's decision was arbitrary and
    capricious. She contends that she was denied a fair hearing because of hearing
    adjournments improvidently granted by the Tribunal examiner, and because the
    BOE was allowed to raise the issue of her refusal to perform suitable work for
    the first time during the May 30, 2017 hearing, resulting in prejudice to her.
    Our scope of review of a determination of an administrative agency is
    limited. In re Stallworth, 
    208 N.J. 182
    , 194 (2011). We accord substantial
    deference to the agency's interpretation of a statute it is charged with enforcing.
    Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 
    144 N.J. 16
    , 31 (1996).
    We will not disturb an agency's ruling unless it is arbitrary, capricious, or
    unreasonable. Brady v. Bd. of Review, 
    152 N.J. 197
    , 210 (1997). "If the factual
    findings of an administrative agency are supported by sufficient credible
    evidence, [we] are obliged to accept them." Self v. Bd. of Review, 
    91 N.J. 453
    ,
    459 (1982).
    II.
    Seiderman argues that the Tribunal's granting of adjournments deprived
    her of a fair hearing because:
    A-0885-17T3
    4
    [BOE] had been put on notice that the parties could
    retain attorneys[;] [BOE] failed [to] request the
    adjournment in writing before the hearing[;] [BOE]'s
    request was not for an exceptional situation as it was
    reasonably foreseeable that Seiderman would retain
    legal counsel for the hearing[;] Additionally, a witness
    did not have the authority to request an adjournment for
    a party.
    She contends the first adjournment request, relative to the telephonic
    February 16, 2017 hearing, "penalized" her and "rewarded" the BOE, thereby
    "corrupt[ing] [her] appeal as to have rendered it unreliable." Seiderman argues
    that after she and a BOE representative testified, a BOE witness, Marnie McKoy,
    requested an adjournment to allow the BOE to retain counsel. The examiner
    granted the adjournment request and postponed the hearing until April 11, 2017.
    As to the adjournment of the April 11 hearing, Seiderman argues this was "an
    egregious mistake," and since the BOE failed to appear, the examiner should
    have closed the case, and the BOE should have been compelled to reopen it.1 In
    reply, the BOE argued it did not appear on April 11 because it was closed for
    spring break.   We disagree with Seiderman that the adjournments were
    improvidently granted.
    1
    N.J.A.C. 1:12-18.4 requires a party requesting to reopen their case to do so
    "as promptly as possible." Each party then has ten days to submit written
    arguments. The Tribunal will then schedule a hearing, and issue an amended
    decision or deny the request with an order explaining its reasons for doing so.
    A-0885-17T3
    5
    The power to grant an adjournment for a hearing rests solely with the
    Tribunal. N.J.A.C. 1:12-9.2. The code states: "[r]equests for adjournment of
    hearings schedule[d] before the [] [T]ribunal shall be made to the [] [T]ribunal
    which shall use its best judgment as to when adjournments of hearings shall be
    granted in order to secure all facts that are necessary and to be fair to the parties."
    
    Ibid.
     The hearing notice provides that postponement requests "should be in
    writing and received by the Tribunal no later than [twenty-four] business hours
    prior to the start of the hearing."
    Although the BOE was "on notice" of the first hearing date and its right
    to retain counsel, we are satisfied from our review of the record that the BOE
    and McKoy were unaware that Seiderman would be represented by counsel.
    McKoy persuasively argued that these hearings do not typically involve counsel.
    Here, the addition of counsel "elevate[d] the level of conversation and . . . put
    [] the [BOE] at a disadvantage because [it did not] have the ability to hav[e] [its]
    counsel [t]here to guide [it] as [did] [Seiderman]." We agree and find no abuse
    of discretion by the examiner in granting the first adjournment request and no
    resulting prejudice to Seiderman.
    As to the adjournment of the second hearing date, the BOE did not appear
    because its office was closed for spring break. Counsel for Seiderman sent a
    A-0885-17T3
    6
    letter to the examiner in advance thereof requesting that the matter be heard
    peremptorily on April 11. The record does not reveal that consent was sought
    or given by the BOE or the examiner for a peremptory designation. There was
    a justifiable reason, i.e., spring break, for the examiner to adjourn the hearing
    again. We find no evidence in the record to support Seiderman's contention that
    the examiner violated her duty under N.J.A.C. 1:12-9.2 or that any prejudice
    resulted.
    During the May 30, 2017 telephonic hearing, the BOE raised the "refusal
    of suitable work" issue for the first time, and the examiner adjourned the matter
    until July 5, 2017, to provide Seiderman with an opportunity to respond. Again,
    the adjournment request was within the discretion of the examiner and actually
    inured to Seiderman's benefit. As to the merits of the "refusal of suitable work"
    argument, this court is not required to address it because it was not raised below.
    See Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2019)
    ("The rule that issues not raised below will not be considered on appeals applies
    as well to review of administrative agency decisions.").          Because of the
    importance of this issue, we will address it.
    Seiderman argues that the Board erred by considering testimony on the
    refusal of suitable work on review because it was outside the scope of the appeal.
    A-0885-17T3
    7
    We note that when this issue was presented, Seiderman's counsel did not object
    to the testimony when it was first introduced at the July 2017 hearing. She
    further claims "an employer cannot raise an issue outside the scope of an
    administrative appeal." Relying on Town of West New York v. Bock, 
    38 N.J. 500
    , 522 (1962), and Hammond v. Monmouth Cty. Sheriff's Dep't, 
    317 N.J. Super. 199
    , 204-05 (App. Div. 1999), she claims that an employee cannot be
    tried for charges in the absence of notice, and that the right to an appeal belongs
    to the employee. The cases cited by Seiderman are factually distinguishable.
    Unlike Town of West New York, where the employee did not receive notice of
    a charge against him, Seiderman was provided with notice of tenure charges.
    The "new" issue of refusal to accept suitable work was introduced by the BOE
    as a defense to her benefits claim, and not as a separate "charge" against her.
    Hammond is also distinguishable. There, we stated that police officers have a
    right to appeal to the Merit System Board to ensure that promotions are based
    on employees' merit and abilities. Hammond, 317 N.J. Super. at 205.
    We are also unpersuaded by Seiderman's argument that In re Am. Reliance
    Ins. Co., 
    251 N.J. Super. 541
    , 557 (App. Div. 1991) supports her position
    because in that case, an order executed two months after the appeal was filed,
    was determined to be outside the scope of the appeal. In Byram Twp. Bd. of
    A-0885-17T3
    8
    Educ. v. Byram Twp. Educ. Ass'n, 
    152 N.J. Super. 12
    , 28 (App. Div. 1977), a
    teacher's contract case cited by Seiderman, we found that certain proposals to a
    new contract were outside the scope of the appeal because they were already
    determined to not be mandatorily negotiable. That case has no precedential
    value to this case.
    Here, the facts surrounding Seiderman's refusal to accept other suitable
    work was an important factor in determining whether she resigned from her
    employment with good cause. Seiderman's refusal to accept the alternative
    employment offered to her was initiated by the examiner's questioning of
    McKoy to ascertain the basis of Seiderman's resignation. McKoy testified that
    Seiderman "declined a position that [the BOE] offered her as a paraprofessional
    and opted to resign in lieu of having the tenure charges brought against her."
    McKoy's testimony was clearly within the scope of this appeal, and we find no
    error by the examiner on this issue.
    Seiderman also argues that the examiner relied on testimony from McKoy
    even though she was not present during pertinent discussions regarding
    Seiderman's employment situation. We note that the Tribunal is not confined to
    the "common law or statutory rules of evidence and other technical rules of
    procedure." N.J.S.A. 43:21-6(f). In addition, N.J.A.C. 1:12-15.1(b) provides
    A-0885-17T3
    9
    that "hearsay evidence shall be admissible and accorded whatever weight the
    examiner deems relevant, appropriate, and reasonable under the circumstances."
    The decision must be supported by "sufficiently substantial and legally
    competent evidence[,]" notwithstanding the hearsay evidence, however. 
    Ibid.
    Seiderman was extended a written offer in July 2016 for the paraprofessional
    position that was provided to the examiner. Therefore, the examiner's decision
    was not solely based on McKoy's testimony.
    Moreover, the review by the Board "may be heard upon the evidence in
    the record made before the [Tribunal] . . . ." N.J.A.C. 1:12-14.3(a). Therefore,
    there was no error in the Board considering McKoy's testimony.
    The Tribunal issued its final decision on August 1, 2017, upholding the
    DOL decision to disqualify Seiderman from receiving unemployment benefits.
    On September 25, 2017, the Board affirmed the Tribunal's finding that
    Seiderman "left work voluntarily for disqualifying reasons," but modified the
    date of disqualification to December 25, 2016.
    III.
    The New Jersey Unemployment Compensation Law (the Act) provides
    that a person is disqualified from receiving unemployment benefits "[f]or the
    week in which the individual has left work voluntarily without good cause
    A-0885-17T3
    10
    attributable to such work . . . ." N.J.S.A. 43:21-5(a). A person who voluntarily
    quits work for personal reasons, as opposed to causes attributable to the work,
    is ineligible for benefits. See Self, 
    91 N.J. at 456-57
    .
    "'Mere dissatisfaction with working conditions which are not shown to be
    abnormal or do not affect health, does not constitute good cause for leaving work
    voluntarily.'" Domenico v. Bd. of Review, 
    192 N.J. Super. 284
    , 288 (App. Div.
    1983) (quoting Medwick v. Review Bd., 
    69 N.J. Super. 338
    , 345 (App. Div.
    1961)). An employee's "decision to leave employment must be compelled by
    real, substantial and reasonable circumstances not imaginary, trifling and
    whimsical ones." 
    Ibid.
     Moreover, "it is the employee's responsibility to do what
    is necessary and reasonable in order to remain employed." 
    Ibid.
     (citing Condo
    v. Review Bd., 
    158 N.J. Super. 172
    , 175 (App. Div. 1978)).
    Seiderman contends that she involuntarily resigned because she felt forced
    by her employer to choose between resigning and being terminated because of
    tenure charges against her. We are not persuaded by her arguments.
    An employee who resigns in the absence of objective factors or conditions
    within the work environment demonstrating imminent danger of termination
    leaves work without good cause attributable to the work. See Brady, 152 N.J.
    A-0885-17T3
    11
    at 219; see also Trupo v. Bd. of Review, 
    268 N.J. Super. 54
    , 61-62 (App. Div.
    1993).
    In sum, the Board's decision that Seiderman was ineligible for
    unemployment benefits was supported by substantial, credible evidence, and we
    find no reason to disturb it.
    Affirmed.
    A-0885-17T3
    12