OLGA S. LEAVITT v. BOARD OF REVIEW, DEPARTMENT OF LABOR, HUDSON COUNTY COMMUNITY COLLEGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4047-08T24047-08T2

OLGA S. LEAVITT,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, HUDSON COUNTY COMMUNITY

COLLEGE and KEAN UNIVERSITY,

Respondents.

________________________________________________________________

 

Submitted November 30, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 198,344.

Olga S. Leavitt, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondents Hudson County Community College and Kean University have not filed a brief.

PER CURIAM

Appellant, Olga S. Leavitt, an adjunct professor on a regular basis at Hudson County Community College and Kean University, and also on some basis at Fairleigh Dickinson University, appeals from a final decision of the Board of Review (Board) denying her unemployment benefits from July 13, 2008 to August 30, 2008, the period between two successive academic years. The denial was based on the reasonable assurance that she would be hired in the second such year. Appellant argues that the State acted in bad faith and denied her due process, that the reasonable assurance standard obscured the facts of the case and was wrongfully applied, and that the reasonable assurance standard is a highly questionable, ambiguous and unrealistic standard that is discriminatory and biased. She further argues that the appeals process is procedurally fraught with errors and difficulties. We reject appellant's arguments and affirm.

Since 1983, appellant has worked as a part-time adjunct professor at Hudson County Community College and Kean University. For one school year, 2005-2006, she held a full-time position at Hudson County Community College. When that position was terminated at the end of that year, she applied for and received unemployment benefits. During this time period, appellant has also served as an adjunct professor at Fairleigh Dickinson University.

Appellant filed the application for benefits that is the subject of this appeal on July 13, 2008. She had taught at Hudson County Community College during the following semesters preceding the application: spring 2007, fall 2007, spring 2008, and the first summer session of 2008, which ended on July 3, 2008. She also returned to work as an adjunct professor at Hudson County Community College on August 29, 2008. Similarly, she taught as an adjunct professor at Kean University during the spring and fall semesters of 2007 and the spring semester of 2008. And, she returned to work as an adjunct professor at Kean University for the fall 2008 semester, beginning September 4, 2008.

The customary practice at both institutions was that appellant would be offered the teaching position for the upcoming semester, subject to enrollment in the course or courses she would be teaching, budgetary considerations, and other scheduling considerations.

When appellant filed her application, it was her intention to seek extended benefits in relation to her prior claim under the Federal-State Extended Unemployment Compensation Act, 26 U.S.C.A. 3304. However, the deputy claims examiner determined that appellant was not eligible for the extended benefits because she had worked sufficient hours to be eligible for a new claim. Thus, the July 13, 2008 application was deemed a new claim.

New Jersey's Unemployment Compensation Law excludes from benefits instructional personnel at educational institutions

during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, . . . to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.

[N.J.S.A. 43:21-4(g)(1).]

The deputy claims examiner denied appellant benefits because she fell within this proscription. She filed an administrative appeal. The Appeal Tribunal conducted a hearing on December 18, 2008 and received appellant's testimony. The Appeals Examiner issued her decision on the same date, upholding the denial of benefits. The Appeals Examiner found:

In this case the claimant had worked as an adjunct professor for at least two different educational institutions for three past semesters and was hired for the fall 2008 semester. Although the claimant's hiring is based upon student enrollment, she has worked for the educational institutions. The claimant's work is an implied agreement with the employers based upon student enrollment. It is determined that she had reasonable assurance of returning to work.

The claimant performed services for an educational institution during one school year and expects to return to work with an educational institution for the ensuing school year. Therefore the claimant is ineligible for benefits for the period between school years, as provided by N.J.S.A. 43:21-4(g)(1). It is concluded the claimant has a reasonable assurance of employment.

Appellant filed a further administrative appeal to the Board. On February 13, 2009, the Board issued its decision upholding the Appeal Tribunal decision. This appeal followed.

The primary issue before us is whether the Board's finding that appellant had a reasonable assurance of work at an educational institution for the school term beginning in September 2008 is supported by the record.

Appellate courts have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. In re Distrib. of Liquid Assets, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 656-57 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). The scope of review of an administrative decision is "'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, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))).

In the factual context of this case, a "reasonable assurance" of continued employment for the fall term requires only "a written, verbal, or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term." Sulat v. Bd. of Review, 176 N.J. Super. 584, 586 n.1 (App. Div. 1980). The burden is on the claimant to demonstrate that he or she did not have such a reasonable assurance. Charatan v. Bd. of Review, 200 N.J. Super. 74, 78-79 (App. Div. 1985).

Of course, appellant did not have an ongoing contract and she was not guaranteed work in each succeeding academic year. However, she had established a long history during which she worked continuously each school year at least between September and June (with some summer work as well) at both Hudson County Community College and Kean University (as well as, to some extent, at Fairleigh Dickinson University). More particularly, she worked continuously under this arrangement in the years immediately preceding her new claim. The pattern of employment was unchanged, and the Board found that appellant failed to prove that she was not reasonably assured the pattern would continue. We are satisfied from our review of the record that the Board's decision is amply supported by substantial credible evidence and is not arbitrary, capricious or unreasonable.

We also reject defendant's argument regarding extended benefits. N.J.S.A. 43:21-4(g)(1) provides that "benefits" shall not be payable to instructional personnel at educational institutions in circumstances such as these. "Benefits" are defined as "the money payments payable to an individual, as provided in this chapter (R.S. 43:21-1 et seq.), with respect to his [or her] unemployment." N.J.S.A. 43:21-19(b). Thus, all forms of unemployment benefits are covered. Under the federal law providing for extended benefits, eligibility for those benefits is conditioned upon exhaustion of benefits otherwise allowable under State law. See 26 U.S.C.A. 3304, notes 102 and 205(a)(5). Because appellant had earned sufficient wages preceding her July 13, 2008 application to render her eligible for benefits (although they were excluded under N.J.S.A. 43:21-4(g)(1)), she was ineligible for the extended benefits.

Appellant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

The Board modified the decision of the Appeal Tribunal by establishing an ending date of ineligibility, which had been omitted by the Appeal Tribunal. Because appellant returned to work on August 29, 2008, the ending date was set at August 30, 2008.

(continued)

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A-4047-08T2

December 22, 2009