NICOLE L. DUFAULT VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-2132-15T4
NICOLE L. DUFAULT,
Claimant-Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, and SOUTH ORANGE AND
MAPLEWOOD BOARD OF EDUCATION,
Respondents-Respondents.
___________________________________________________
Submitted April 25, 2017 – Decided May 9, 2017
Before Judges Yannotti and Gilson.
On appeal from the Board of Review, Department
of Labor, Docket No. 051,485.
Caruso Smith Picini, P.C., attorneys for
appellant (Steven J. Kaflowitz, on the brief).
Christopher S. Porrino, 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 South Orange and Maplewood Board
of Education has not submitted a brief.
PER CURIAM
Nicole L. Dufault appeals from a final decision of the Board
of Review, which found that she was disqualified from receiving
unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a)
and (b). We affirm.
Dufault was employed by the South Orange and Maplewood Board
of Education (the BOE) as a tenured, high school English teacher.
The BOE suspended Dufault with pay at the beginning of the 2014-
2015 school year. In February 2015, the BOE suspended Dufault
without pay, effective March 1, 2015. On February 22, 2015, Dufault
filed an application for unemployment compensation benefits.
A deputy director in the Division of Unemployment and
Disability Insurance determined that Dufault was disqualified for
benefits pursuant to N.J.S.A. 43:21-5(b) because she was suspended
or discharged for gross misconduct connected with the work. Dufault
appealed the Deputy's determination to the Appeal Tribunal, which
held a hearing in the matter on April 30, 2015.
At the hearing, counsel for the BOE stated that the BOE
suspended Dufault with pay at the beginning of the 2014-2015 school
year when she was arrested. Counsel for the BOE stated that the
BOE later suspended Dufault without pay as of March 1, 2015,
because an Essex County grand jury had returned an indictment
charging her with multiple counts of aggravated sexual assault and
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endangering the welfare of a child. The BOE's attorney stated that
the Essex County Prosecutor's Office (ECPO) had advised the BOE
that the charges were based on allegations that Dufault had engaged
in sexual acts with multiple male students. After it was informed
of the indictment, the BOE suspended Dufault without pay.
Dufault testified that the last day she worked as a teacher
in the South Orange and Maplewood school district was September
15, 2014. When questioned by the appeals examiner about the
charges, Dufault invoked her Fifth Amendment privilege against
self-incrimination and refused to answer any additional questions.
The appeals examiner issued a decision on April 30, 2015. The
examiner found that Dufault was disqualified from benefits
pursuant to N.J.S.A. 43:21-5(b) because she had been discharged
for gross misconduct connected with the work. The examiner noted
that Dufault had been charged with multiple offenses that were
punishable as crimes of the first, second, third, or fourth degree
under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to
104-9.
Dufault appealed the Appeal Tribunal's determination to the
Board, which issued a decision on September 15, 2015. The Board
remanded the matter to the Appeal Tribunal for another hearing.
In its decision, the Board stated that additional testimony from
Dufault and the employer was required with regard to whether
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Dufault was guilty of the charges for which she had been suspended
and later discharged. In its decision, the Board stated that the
Appeal Tribunal should advise Dufault of "her responsibility to
move the appeal, and of the consequences for her failure to do
so."
The Appeal Tribunal conducted the second hearing on October
6, 2015. At the hearing, the BOE's attorney noted that the ECPO
was handling Dufault's criminal case and he was unaware of the
status of the matter. He also stated that Dufault had resigned
from her position in the school district as of July 21, 2015,
pursuant to a settlement agreement between Dufault and the BOE.
The settlement agreement states in pertinent part that
Dufault "wishes to irrevocably resign" her position, as of July
21, 2015. The BOE's attorney indicated that he did not know if
the BOE would have proceeded with the termination charges if
Dufault had not resigned. He also said he did not know if Dufault
would have been fired if she was completely exonerated on all of
the criminal charges.
The appeals examiner asked Dufault if she was guilty of the
charges. Dufault again asserted her Fifth Amendment privilege
against self-incrimination and refused to answer the question. The
appeals examiner told Dufault that if she was not going to answer
the question, he could draw an adverse inference from her refusal
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to testify. Dufault conceded, however, that she had resigned her
position with the school district. She stated that her attorney
told her she was going to be discharged, but she acknowledged that
the BOE did not tell her she was going to be terminated. Dufault
said the criminal charges were pending, but they were allegations.
Dufault's attorney noted that in the settlement agreement,
the BOE had agreed it would not take any adverse action regarding
Dufault's claim for unemployment benefits. The BOE's attorney
stated, however, that the BOE was merely participating in the
hearing. He said the BOE was not taking any adverse action
regarding her claim.
The appeals examiner issued a decision on October 8, 2015.
The examiner found that Dufault was disqualified for benefits
pursuant to N.J.S.A. 43:21-5(a) and (b). Dufault appealed the
Appeal Tribunal's decision to the Board, and the Board issued a
decision on December 17, 2015, affirming the Tribunal's decision.
The Board found that Dufault was disqualified for benefits
as of July 19, 2015, pursuant to N.J.S.A. 43:21-5(a) because she
left her position for personal reasons, not for reasons connected
with the work. The Board found that the BOE never told Dufault she
would be fired if she did not resign. The Board determined that
the BOE did not terminate Dufault. She chose to resign. The Board
decided that because Dufault voluntarily left her position without
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good cause attributable to the work, she was disqualified from
receiving benefits.
The Board also found that Dufault was disqualified from
benefits as of February 22, 2015, pursuant to N.J.S.A. 43:21-5(b)
because she was discharged for gross misconduct connected with the
work. The Board noted that Dufault had been charged with offenses
that were punishable as first, second, third, or fourth-degree
crimes under the Code of Criminal Justice. She had invoked her
right against self-incrimination and refused to answer questions
regarding the charges.
The Board stated that a negative inference could be drawn
from Dufault's refusal to testify about the charges. The Board
observed that if Dufault was not guilty, there was no reason for
her to refuse to answer questions about the charges. The Board
wrote, "The only reasonable explanation for the claimant's refusal
to provide a response to the Appeal Tribunal's question is that
she is, in fact, guilty of the charges on which she has been
indicted. No other conclusion is logical or credible." This appeal
followed.
On appeal, Dufault argues: (1) the BOE did not prove that she
had been terminated for gross misconduct; (2) she should receive
unemployment benefits because her claim was not decided
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expeditiously; and (3) the BOE should be bound by the terms of the
settlement agreement.
The scope of our review in an appeal from a final
determination of an administrative agency is strictly limited.
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub.
Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95,
103 (1985)). The agency's decision may not be disturbed unless
shown to be arbitrary, capricious or unreasonable. Ibid. (citing
In re Warren, 117 N.J. 295, 296 (1989)).
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)).
Here, the Board found that Dufault was disqualified from
unemployment compensation benefits under N.J.S.A. 43:21-5(a),
which provides that an individual may not receive benefits if the
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individual "left work voluntarily without good cause attributable
to such work[.]" Although the statute does not define the term
"good cause," it has been construed to mean "cause sufficient to
justify an employee's voluntarily leaving the ranks of the employed
and joining the ranks of the unemployed." Domenico v. Bd. of
Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo
v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).
There is sufficient credible evidence in the record to support
the Board's finding that Dufault resigned her job voluntarily,
without good cause attributable to the work. She conceded that she
resigned her position in accordance with the settlement she reached
with the BOE. There is no evidence that the BOE had threatened to
terminate Dufault. On appeal, Dufault does not argue that she
resigned her position for good cause attributable to the work.
Rather, Dufault argues that she is entitled to benefits
because the BOE agreed it would not take any adverse action with
regard to her claim for unemployment compensation benefits. We
disagree. As the record shows, the BOE participated in both
hearings. At the second hearing, the BOE's attorney provided the
appeals examiner with information about Dufault's pending criminal
charges and her resignation. The BOE did not, however, take any
adverse position regarding the claim.
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Although the BOE agreed it would not take any action adverse
to Dufault's claim, that agreement does not require the Board to
grant Dufault's application for unemployment benefits. The Board
was obligated to make its decision regarding her claim in
accordance with the facts and the applicable law, regardless of
any position the BOE may or may not take regarding the claim.
Based on the testimony presented at the hearing, the Board
determined that Dufault was disqualified for benefits pursuant to
N.J.S.A. 43:21-5(a) because she resigned her position voluntarily,
without good cause attributable to the work, and pursuant to
N.J.S.A. 43:21-5(b) because she was suspended and discharged for
gross misconduct connected with the work. There is sufficient
credible evidence in the record to support those findings.
Dufault also argues that the Board erred by finding that she
was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b)
because she was discharged for gross misconduct in connection with
the work. She argues that the BOE had the burden of proving that
she was suspended or discharged for gross misconduct connected
with the work, as required by N.J.A.C. 12:17-10.1(f).
Dufault contends that the only proof of her alleged gross
misconduct was the hearsay statements of the BOE's attorney.
Dufault contends that an administrative decision may not be based
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solely upon hearsay, and under N.J.A.C. 15:1-15.5(b), each finding
of fact must be supported by "some legally competent evidence."
We are not persuaded by these arguments. Dufault did not
dispute that she had been indicted and charged with multiple
criminal offenses. Dufault was charged with engaging in sex acts
with students at her school. On appeal, Dufault concedes that if
she engaged in such conduct that would constitute gross misconduct
in connection with her work.
As noted previously, at the hearings before the Appeal
Tribunal, Dufault asserted her Fifth Amendment right against self-
incrimination and refused to answer any questions regarding the
charges. Under the circumstances, the Board had the discretion to
draw an adverse inference that she had, in fact, engaged in the
criminal conduct for which she has been charged.
When, as in this matter, a party in a civil matter asserts
the privilege against self-incrimination, the fact-finder may draw
an adverse inference of guilt. Attor v. Attor, 384 N.J. Super.
154, 165-66 (App. Div. 2006) (citing Mahne v. Mahne, 66 N.J. 53,
66 (1974)). See also Bastas v. Bd. of Review, 155 N.J. Super. 312,
315 (App. Div. 1978) (holding that the Board could draw an adverse
inference where claimant for unemployment benefits asserted Fifth
Amendment privilege and refused to testify on facts related to the
claimant's qualification for benefits); Duratron Corp. v. Republic
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Stuyvesant Corp., 95 N.J. Super. 527, 531-32 (App. Div.)
(concluding that in a civil action, the court may draw an adverse
inference when a litigant invokes the Fifth Amendment and refuses
to testify concerning a matter within his or her personal
knowledge), certif. denied, 50 N.J. 404 (1967); SEC v. Greystone
Nash, Inc., 25 F.3d 187, 190 (3rd Cir. 1994) (noting that "reliance
on the Fifth Amendment in civil cases may give rise to an adverse
inference against the party claiming its benefits") (citing Baxter
v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed.
2d 810, 821 (1976)).
Dufault further argues that the Board's decision should be
reversed because the Appeal Tribunal did not process her appeals
expeditiously, as required by N.J.S.A. 43:21-5(b). This argument
is entirely without merit. The record shows that the Appeal
Tribunal processed the appeals in an expeditious manner. Moreover,
N.J.S.A. 43:21-5(b) does not provide that a claimant is entitled
to benefits if an appeal is not processed in the manner required
by the statute.
Affirmed.
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