JILL L. SLUKA v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4624-10T3

JILL L. SLUKA,

Appellant,

v

BOARD OF REVIEW and

OCEAN COUNTY COLLEGE,

Respondents.

_________________________________

May 8, 2013

Submitted April 29, 2013 - Decided

Before Judges Parrillo and Sabatino.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 192,579.

Jill L. Sluka, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief).

Respondent Ocean County College has not filed a brief.

PER CURIAM

Appellant Jill L. Sluka appeals from a March 18, 2011 final decision of the Board of Review deeming her ineligible for unemployment benefits, based upon an administrative finding that she voluntarily quit her teaching position. We reverse, because the record does not adequately support the Board's finding that appellant's separation from her job was voluntary.

During the relevant time frame, appellant was an adjunct instructor of computer graphics at Ocean County College. In April 2008 she e-mailed the head of the college's Art Department, alerting him that she was expecting her first child on or about September 1, 2008. In that e-mail, appellant referred to her belief that doctors normally want new mothers to take four to six weeks off. She added in her e-mail that "[y]ou may want to make arrangements for your fall classes with this in mind." The Department chairman responded in an e-mail, "Congratulations and best wishes. I will find a pinch[-]hitter for you for [the] fall."

The Director of Human Resources explained that the college interpreted appellant's e-mail to signify that appellant did not intend to return to teach during the fall semester. In fact, appellant's expectation was that the college would arrange for a substitute instructor to teach her classes while she was finishing her pregnancy leave, and that she would resume teaching later in the semester. However, the college did not allow appellant to return and teach that semester.

Initially, the Deputy1 in June 2008 and the Appeal Tribunal in September 2008 denied appellant unemployment benefits based upon a misapplication of N.J.S.A. 43:21-4(g)(2). Applying that provision, the Deputy and the Appeal Tribunal found that she was employed by an educational institution and had reasonable assurances of teaching again in the ensuing academic term. The Board sustained this initial finding on October 29, 2008. Appellant then filed her first appeal (A-5405-08) contesting this conclusion.

The Board conceded in the first appeal that the record did not support a finding that appellant had a reasonable assurance of reemployment. Consequently, the Board moved to remand the matter for a new hearing, at which the legal basis for the denial of benefits to appellant could be reevaluated. We granted that request, which was unopposed by appellant, in December 2009, and did not retain jurisdiction.

Despite the protracted nature of this matter, the Appeal Tribunal did not conduct a second telephone hearing until April 30, 2010 and did not issue a new ruling until August 30, 2010.2 This time, the Appeal Tribunal found that appellant had left work voluntarily without good cause attributable to the work, and thus was ineligible for benefits under N.J.S.A. 43:21-5(a). The Tribunal noted that appellant had provided no medical documentation that she was ready to return to work on August 15, 2008. The Board of Review upheld this determination on March 18, 2011.

Appellant then filed the present second appeal, which the Board of Review has opposed. The college has taken no position concerning the matter.

In reviewing this final agency decision, we accord substantial deference to the Board of Review. Our main focus is whether the Board's determination was arbitrary, unreasonable or capricious, Brady v. Bd. of Review, 152 N.J. 197, 210 (1997), or unsupported by the record. Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). However, as illustrated in our recent opinion in Silver v. Bd. of Review, 430 N.J. Super. 44 (App. Div. 2013) (reversing a finding of an employee's misconduct and the related denial of benefits), we do not hesitate to set aside the Board's conclusions where they reflect a misapplication of the unemployment statutes and regulations.

N.J.S.A. 43:21-5(a) provides that a person is ineligible for unemployment benefits if he or she leaves work "voluntarily without good cause attributable to such work[.]" That provision does not define "good cause." However, the implementing regulations state that when an employee leaves his or her position for reasons related to the "[c]are of children or other relatives," the "individual's separation from employment shall be reviewed as a voluntar[y]" leave. N.J.A.C. 12:17-9.1(e)(2). The pivotal question here thus becomes whether appellant voluntarily left her position, or instead was attempting to gain her employer's acquiescence to a short-term absence for pregnancy reasons.

The record shows there was some misunderstanding between appellant and her supervisor as to the nature of her request and the import of their respective e-mails. Given that apparent misunderstanding, there is insufficient support for the Board's finding that appellant e-mailed her supervisor seeking to quit her job. To the contrary, her request that the supervisor "[l]et [her] know [his] decision" supports her testimony that she e-mailed him to advise that she would need a pregnancy-related scheduling accommodation for approximately four to six weeks. The supervisor's ambiguous reference in his response to a "pinch[-]hitter" only added to the confusion.

Appellant delivered her child on August 13, 2008. Four to six weeks from that date was either September 10 or 24, 2008, respectively. She reasonably could have thought there was sufficient time for her to step in and teach the fall class after a "pinch[-]hitter" had substituted for her. Indeed, during the August 20, 2008 telephonic hearing before the Appeal Tribunal, appellant offered to make herself available to teach when the fall semester began.

We recognize that the college might prefer to have continuity of instruction during a semester. Even so, the college should have tried to clarify appellant's timing and intentions with regard to her pregnancy and the length of her intended absence. In light of the apparent misunderstanding, the proofs do not fairly support the Board's conclusion that appellant quit her job voluntarily.

Reversed. We defer to the agency for the calculation of the benefits owed to appellant.

1 The Deputy is "a representative of the Division within the New Jersey Department of Labor and Workforce Development responsible for the administration of the Unemployment Insurance Benefit Payment Program." N.J.A.C. 12:17-2.1.

2 We do not condone the agency's unexplained delay in completing the remand it had requested. An old matter such as this one should be completed more expeditiously.