MATTHEW N. CROWLEY v. BOARD OF REVIEW DEPARTMENT OF LABOR and SOUTH RIVER BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1708-08T21708-08T2

MATTHEW N. CROWLEY,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and SOUTH RIVER BOARD

OF EDUCATION,

Respondents.

________________________________________________________________

 

Submitted February 3, 2010 - Decided

Before Judges Axelrad and Espinosa.

On appeal from the Board of Review, Department of Labor, Docket No. 196,802.

Matthew N. Crowley, appellant pro se.

Paula T. Dow, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

PER CURIAM

Matthew Crowley appeals from a final decision of the Board of Review, Department of Labor (the Board), which determined that he was disqualified for unemployment benefits. We reverse and remand.

Crowley filed a claim for unemployment benefits on June 22, 2008 and was found eligible for benefits by a deputy to the Director, Division of Unemployment Insurance. The stated reasons for the determination were:

You were employed by the South River Board of Education from 01/15/08 to 06/30/08 as a special education teacher on a temporary basis. There was no reasonable assurance that you would be employed for the upcoming school year. On 04/21/08, you requested resignation effective immediately but your resignation was not accepted and you worked the remainder of your initial contract.

Evidence indicates that your reason for leaving constitutes good cause attributable to the work. You are eligible for benefits.

The South River Board of Education (the Board of Education) filed an appeal. The evidence presented at the Appeal Tribunal hearing can be summarized as follows.

Crowley was hired by the Board of Education on January 15, 2008 as a substitute special education teacher for the spring 2008 semester, which ended June 30, 2008. He testified that he was told at the time of hire and on several occasions thereafter by the Superintendent of Schools and the Director of Special Services that he would not be offered employment for the fall semester because the teacher for whom he was a substitute was returning and the Board lacked the funds for another position.

On April 21, 2008, Crowley submitted a letter of resignation to Donna Kennelly, Director of Special Education that stated:

Dear Mrs. Kennelly,

Due to unforeseen changes in my present family circumstances, I must resign my teaching position effective 2 May 2008.

[(Emphasis added).]

Crowley testified that the Superintendent declined to accept his resignation. He told the Superintendent that he understood and that he would try his best to fulfill the contract but that it would be best for everybody involved if they obtained a replacement for him as soon as possible. No replacement was hired. According to Crowley, he was asked to write a "corrected" letter to the Superintendent, Mr. Griego, in which he changed the effective date of his resignation to June 30. He testified that his last day of work was June 23, 2008.

The only witness called for the employer was Kenneth Kokoszka, the business administrator for the Board of Education. Kokoszka testified as to the resignation letter from Crowley contained in the files of the Board of Education that stated:

Due to unforeseen changes in my present family circumstance, I must resign my teaching position effective June 30, 2008 or sooner if a replacement is found.

In response to a question from the examiner, Kokoszka stated that Crowley was a ten-month employee.

It is conceded on appeal that Kokoszka had no personal knowledge regarding Crowley's statement that the Superintendent rejected the resignation letter he submitted with a May 2 effective date. It is evident from the hearing transcript that he also lacked personal knowledge of the circumstances of Crowley's hire, his resignation, or his last day of employment. He was only able to offer testimony based upon documents he had before him and even testified inaccurately as to those. For example, he testified that Crowley began his employment in July, rather than January, and was corrected by the examiner.

Despite the fact that the Board appealed from the initial determination, it failed to present competent evidence to refute key findings in that determination. Because the Notice of Determination stated, "There was no reasonable assurance that you would be employed for the upcoming school year," the Board of Education was on notice that the question whether Crowley would be hired for the following year was an issue. Yet, their witness was totally unprepared to answer the relevant question. When asked specifically whether Crowley's contract would have been renewed for the following school year if he had not resigned, Kokoszka stated, "I couldn't answer that question." He explained that "the Board of Education Superintendent of Schools [would have] to decide whether they want to re-hire him or not if he didn't resign." The employer offered no evidence to rebut Crowley's assertion that he had been told repeatedly that he would not be offered employment for the following year. In addition, because the Notice of Determination stated that Crowley was employed "from 01/15/08 to 06/30/08 as a special education teacher on a temporary basis," the Board certainly knew that such testimony could be anticipated from Crowley on appeal. The only contrary evidence was a conclusory statement from Kokoszka in response to a question from the examiner.

The Appeal Tribunal reversed and decided that Crowley was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to such work. The Appeal Tribunal gave the following reasons for its determination:

In this case, the claimant initiated the separation on 04/21/08, when he submitted his resignation to the employer with an effective date of 06/30/08 or sooner to care for his ill mother and his disabled sister. When the claimant submitted his letter of resignation it was not a period between two successive academic school years. Therefore, the claimant is disqualified for benefits as of 06/29/08, under N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.1, as he left work voluntarily without good cause attributable to such work.

Crowley appealed and the Board affirmed the Appeal Tribunal's decision. This appeal followed.

Our review of the Board's final decision is limited.

The scope of review of an administrative decision "is the same as that [for] an appeal in any nonjury case, i.e., 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility."

[In re Taylor, 158 N.J. 644, 656 (1999) (alteration in original).]

See also Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004); Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997).

After careful review, we conclude that, given the record as a whole, the Board's reliance on certain key findings here were arbitrary, capricious and unreasonable, and led the Board to an erroneous application of the law.

The Appeal Tribunal concluded that, when Crowley submitted his resignation, "it was not a period between two successive school years." Although the Board did not explain the significance of such timing in its decision, on appeal it is argued that because the resignation letter was submitted during the academic semester and not during a period between two successive academic years, Crowley is disqualified from receiving benefits. However, the statutes cited by the Board to support this conclusion address the disqualification of ten-month employees from receiving benefits during the summer when there is "a contract or reasonable assurance" that the employee will work in the following academic term. N.J.S.A. 43:21-4(g)(1). See also N.J.S.A. 43:21-4(g)(3) (similar provision applicable to holiday recesses). Neither statute addresses the situation where, as here, a substitute teacher was hired for a finite contract period and the Board has presented no evidence that he had a reasonable assurance of future employment.

Here, the only evidence to support the Appeal Tribunal's finding that Crowley was a ten-month employee was the conclusory statement provided by Kokoszka. He was, however, plainly unfamiliar with the details of Crowley's employment, having erroneously testified that Crowley began his employment in July, and was contradicted by other evidence in the record. Specifically, the employer did not refute Crowley's testimony that he was hired as a substitute teacher for a shorter contract period. Therefore, while support for the conclusion that Crowley was a ten-month employee can be found in Kokoszka's testimony, when we "consider[] the proofs as a whole," Taylor, supra, 158 N.J. at 656, the statement of a witness who lacks personal knowledge and is contradicted by other, unrefuted evidence in the record, does not constitute "sufficient credible evidence present in the record," ibid., to provide reasonable support for a finding that Crowley was a ten-month employee. See ibid. This finding was, therefore, arbitrary, capricious and unreasonable. As a result, it was error for the Board to conclude that, pursuant to N.J.S.A. 43:21-4(g)(1) and N.J.S.A. 43:21-4(g)(3), Crowley is ineligible for benefits due to a failure to resign between two successive school years. See In re Carter, 191 N.J. 474, 483 (2007) (we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue"); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (same).

We next turn to the question whether Crowley is ineligible for benefits because he "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a) provides:

An individual shall be disqualified for benefits:

(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed . . . .

[(Emphasis added).]

N.J.A.C. 12:17-9.1 also states that an individual shall be disqualified for benefits "for the week in which he or she has left work voluntarily without good cause attributable to such work" and includes "[c]are of . . . relatives" as a reason that constitutes leaving work voluntarily.

Because Crowley's undisputed reason for submitting his resignation in April was to care for his sister and mother, it is clear that if he had left work at that time, he would have been properly disqualified for benefits "for the week in which the individual has left work voluntarily without good cause attributable to such work" and thereafter. However, as the Appeal Tribunal explicitly found, Crowley continued to work after his resignation was rejected until June 23, 2008. Therefore, he never "left work" during the term of his contract.

According to Crowley, he submitted two different resignation letters. In the first, he stated that his resignation was effective May 2, 2008. Because the Superintendent would not accept his resignation, he did not leave work at that time "voluntarily without good cause attributable to such work." Crowley testified that he wrote a second letter, at the direction of the employer, changing the resignation date to June 30, 2008. His stated reason for submitting the resignation letter was his desire that the employer find a replacement for him before the end of the school year. This testimony was unrefuted by the employer.

Although the Appeal Tribunal made no credibility determination rejecting Crowley's version of events, the only resignation letter cited in its findings was the one with the date "corrected" at the employer's direction to a date that coincided with the end of the school term.

Based upon a cold record, without the opportunity to assess Crowley's credibility, it is difficult to comprehend why his version of events was implicitly rejected. Once again, the Board of Education was on notice from the initial determination that there had been a finding, based upon Crowley's statements, that his requested resignation was not accepted. However, the employer provided no evidence to refute that statement; Kokoszka could only represent that the file contained a letter reflecting a June 30 resignation date. Moreover, Crowley's version of events is inherently more plausible. His objective of terminating work before the end of his contract period if a replacement was found was consistent with his version of events. Although it may have assisted the employer to have a letter in hand that identified the end of Crowley's contract as his resignation date, a resignation on the date his contract expired served no readily identifiable purpose for Crowley.

Our Supreme Court has described the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30, as "social legislation that provides financial assistance to eligible workers suffering the distress and dislocation caused by unemployment." Utley v. Bd. of Review, 194 N.J. 534, 543 (2008). The Act is to be construed liberally in favor of allowance of benefits to further its remedial and beneficial purposes. Ibid.

N.J.A.C. 12:17-9.1(d) explicitly provides:

An individual who leaves work for several reasons, one of which constitutes good cause attributable to such work, shall not be disqualified for benefits.

Crowley was employed for the spring semester as a substitute for a teacher who was ill and would be returning in the fall. The Board of Education presented no evidence to refute his testimony that he had been told, when he was hired and repeatedly thereafter, that he would not be offered employment at the end of his contract. Therefore, at least one reason for Crowley to leave work at the end of June was the fact that his contract had ended, a reason clearly attributable to the work.

 
In summary, the Board's reliance upon a finding that Crowley was a ten-month employee was unsupported by substantial, credible evidence when the proofs are considered as a whole. That reliance led to its failure to conduct an analysis of the facts that were supported by credible evidence in the record, specifically a failure to consider that at least one of the reasons for Crowley's departure was the end of his substitute contract. We conclude that Crowley left his employment, at least in part, due to "good cause attributable to his work" and that, pursuant to N.J.A.C. 12:17-9.1(d), he is not disqualified from benefits. We therefore reverse the final decision of the Board and remand to the Division of Unemployment Insurance for a determination of benefits consistent with this opinion. We do not retain jurisdiction.

(continued)

(continued)

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A-1708-08T2

July 9, 2010