VICTORIA J. ELBRECHT v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5033-13T3

VICTORIA J. ELBRECHT,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and MARLBORO

TOWNSHIP BOARD OF EDUCATION,

Respondents.

________________________________________

July 19, 2016

Submitted July 6, 2016 Decided

Before Judges Yannotti and Haas.

On appeal from the Board of Review, Department of Labor, Docket No. 407,172.

Victoria J. Elbrecht, appellant pro se.

Cristopher S. Porrino, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Juneau Bezer, Deputy Attorney General, on the brief).

Schenck, Price, Smith & King, LLP, attorneys for respondent Marlboro Township Board of Education, join in the brief of respondent Board of Review.

PER CURIAM

Victoria J. Elbrecht appeals from a final determination of the Board of Review, which found that she was disqualified from unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a), because she left her voluntarily without good cause attributable to the work. We affirm.

Since September 1, 1999, Elbrecht had been employed by the Marlboro Township Board of Education (MTBOE) as a middle school teacher. On May 17, 2012, the MTBOE suspended Elbrecht with pay pending an investigation, based on an allegation that Elbrecht's teacher page or website included a link that directed students to a site with videos showing Elbrecht dancing in a bikini.

Elbrecht and the MTBOE signed a settlement agreement dated June 19, 2012, which required Elbrecht to submit an irrevocable letter of resignation effective June 30, 2012. The MTBOE agreed to continue Elbrecht's salary and benefits until June 30, 2012, and her health benefits through August 31, 2012.

The agreement stated that it should not be construed as a waiver of any claim that Elbrecht might have to pension credits. The MTBOE agreed that it would not provide any information about Elbrecht's employment when responding to inquirys from any future employer. In accordance with the agreement, Elbrecht submitted a letter of resignation, as of June 30, 2012.

On September 9, 2012, Elbrecht filed a claim for unemployment benefits. Elbrecht was determined to be eligible for benefits, and the Board appealed that determination to the Appeal Tribunal, arguing that Elbrecht resigned from her position rather than face discharge for misconduct connected with the work. The Appeal Tribunal conducted a telephonic hearing in the matter on September 26, 2013.

At the hearing, the Board asserted that Elbrecht violated its technology policy. According to the Board, Elbrecht had a link on her website, which directed students to another site that contained videos that the Board considered inappropriate. Elbrecht had been suspended with pay. The Board was going to bring tenure charges, but Elbrecht agreed to resign.

Elbrecht claimed her teacher's "page" was totally separate from her account with the videos. She said the allegations were false because she never showed the videos in the classroom. She stated that she had been wearing a bathing suit in the videos. She explained that she was a singer and actress, and had been doing background acting, commercial work, theater and drama for a number of years.

Elbrecht noted that on June 19, 2012, she had submitted an irrevocable letter of resignation. She claimed that she had been subject to harassment and various pranks from students in her class and parents. She said a number of students made prank calls with abusive comments. She believed that some students had searched for the videos on their own time after school, and set her up. Elbrecht informed her union representative of the pranks and harassment, but the representative did not inform the Board.

The appeals examiner determined that Elbrecht's testimony raised an issue as to whether she had resigned voluntarily for good cause attributable to the work. The Appeal Tribunal determined that Elbrecht was disqualified from benefits pursuant to N.J.S.A. 43:21-5(a). The appeals examiner noted that Elbrecht did not bring her dissatisfaction with her working conditions to the superintendent of schools. She failed to make reasonable efforts to resolve her dissatisfaction before resigning. Therefore, Elbrecht did not leave her position for good cause attributable to the work.

Elbrecht appealed to the Board, which determined that additional testimony was required regarding the parties' settlement agreement. The Board remanded the matter for a hearing and a new decision on all issues. The telephonic hearing took place on February 7, 2014. Thereafter, the appeals examiner issued a decision again finding Elbrecht disqualified from benefits pursuant to N.J.S.A. 43:21-5(a).

The appeals examiner noted that, before she resigned, Elbrecht had not brought her dissatisfaction with her working conditions to the attention of the superintendent of schools. The appeals examiner stated that Elbrecht had not made reasonable efforts to resolve her dissatisfactions. To the extent that she left the position due to her working conditions, it was not good cause attributable to the work.

In addition, the appeals examiner noted that the Board had suspended Elbrecht with pay, but the superintendent of schools had not completed a recommendation for discharge before Elbrecht resigned. The appeals examiner stated that Elbrecht's resignation over an incident she maintains was not her fault "was premature and not considered good cause attributable to such work."

The Board affirmed the Appeal Tribunal's decision. This appeal followed. On appeal, Elbrecht argues that she was coerced into a resignation and forced to sign a resignation letter and agreement that never charged or accused her of misconduct. She states that the Board erred by finding that she voluntarily quit her position.

The scope of our review in an appeal from a final determination of the Board is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dept. of Envtl. Prot., 101 N.J. 95, 103 (1985)). 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)). "If the Board's factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

New Jersey's Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30, provides in pertinent part that an individual who leaves "work voluntarily without good cause attributable to such work" is disqualified from receiving unemployment benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work" until such time as the individual becomes re-employed, works four weeks, and earns "in employment at least six times the individual's weekly benefit rate." N.J.S.A. 43:21-5(a).

The statute does not define "good cause." However, that term has been construed to mean a "'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Brady, supra, 152 N.J. at 214 (quoting Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983)).

In determining whether an employee had "good cause" to leave his or her employment, we apply a test of "'ordinary common sense and prudence.'" Ibid. (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "Good cause" exists if the claimant's decision to leave his or her employment was "'compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). The claimant has the "responsibility to do whatever is necessary and reasonable in order to remain employed." Ibid. (quoting Zielenski, supra, 85 N.J. Super. at 53-54).

We are convinced that there is sufficient credible evidence in the record to support the Board's finding that Elbrecht was disqualified from benefits pursuant to N.J.S.A. 43:21-5(a) because she left her position voluntarily, not for good cause attributable to the work. It is undisputed that Elbrecht had been suspended with pay, based on allegations that she violated the MTBOE's technology policy and engaged in inappropriate conduct.

As we have explained, Elbrecht and the MTBOE entered into an agreement, which required Elbrecht to resign her position effective June 30, 2012. There is sufficient credible evidence in the record to support the Board's finding that she did so voluntarily.

Elbrecht argues that she was coerced into signing the settlement agreement and forced to resign. The record does not support her contention. Indeed, the agreement states in pertinent part

Ms. Elbrecht hereby acknowledges that she entered into this agreement with a full understanding of her rights and that she was fully informed of the implication of this [A]greement and that she has reviewed this agreement with her attorney. She also enters into this Agreement without duress and of her own free will and volition and acknowledges that she was given the opportunity to fully consider this Agreement for a period of up to twenty-one (21) days and seven (7) days from the execution of this Agreement to revoke this Agreement. . . . It is understood that if this Agreement is revoked, it will not be effective or enforceable, nor will Ms. Elbrecht's resignation from employment. Ms. Elbrecht will not be entitled to any of the consideration described herein. The [MTBOE] will be entitled to proceed without prejudice, to any rights that it may have.

Elbrecht also argues that the MTBOE made it clear that she was in "a take it or leave it" position. She claims that if she did not sign the Agreement, the MTBOE would move to get her fired. However, Elbrecht's termination was not a foregone conclusion. The record shows that if Elbrecht had not resigned, the MTBOE would have filed tenure charges, seeking her dismissal, but Elbrecht disputed the charges, claiming that she had done nothing to warrant her termination.

Ultimately, the Commissioner of Education would determine whether Elbrecht should be removed from her tenured position. See In re Young, 202 N.J. 50, 62 (2010) (final decision of Commissioner sustaining tenure charges and terminating teacher's employment); N.J.S.A. 18A:6-9.1 (Commissioner has final decision making authority in controversies and disputes under the school laws).

Here, Elbrecht chose to avoid that process and the risk that she would be terminated. She voluntarily chose to resign pursuant to her agreement with the MTBOE, which gave her significant benefits, including full salary and benefits through June 30, 2012, and health benefits through August 31, 2012. The MTBOE also agreed it would not not provide any information about Elbrecht's employment in response to any inquiries from her future employers.

Elbrecht also contends it was clear that she was being pranked, harassed and subject to malicious behavior by various individuals in an attempt to drive her out of her job. It is clear, however, that even if Elbrecht left her job due to dissatisfaction with her working conditions, rather than her voluntary agreement to resign, there is no evidence to show that Elbrecht was compelled to resign due to the alleged pranks, harassment and malicious behavior.

The record shows that although Elbrecht informed her union representative of her concerns, she never brought them to the attention of the superintendent of schools, who might have been able to take effective action to address those concerns. Thus, Elbrecht failed to fulfill her responsibility "to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (quoting Zielenski, supra, 85 N.J. Super. at 53-54).

We have considered Elbrecht's other arguments and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.