SHARONM. RYKOLA v. BOARD OF REVIEW DEPARTMENT OF LABOR and SOURCE4TEACHERS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      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-0799-16T2


SHARON M. RYKOLA,

        Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and SOURCE4TEACHERS,

        Respondents.

_____________________________

              Submitted January 22, 2018 – Decided February 16, 2018

              Before Judges Messano and O'Connor.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 096,157.

              Sharon M. Rykola, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Christopher Weber, Deputy Attorney
              General, on the brief).

              Respondent Source4Teachers has not filed a
              brief.

PER CURIAM
    Appellant Sharon M. Rykola appeals from the final decision

of the Board of Review, which affirmed the Appeal Tribunal's

decision finding her ineligible to receive unemployment

compensation benefits due to committing acts of simple misconduct

connected to the work.   The Appeal Tribunal had reversed the

decision of the Deputy Director (Deputy) of the Division of

Unemployment and Disability Insurance, which found appellant

eligible for unemployment compensation benefits.   We affirm.

    In April 2011, appellant was employed by Source4Teachers

(employer) as a certified substitute teacher.   The employer is an

agency that provides substitute teachers to schools.   On December

8, 2015, appellant was terminated for simple misconduct.

Appellant applied for and the Deputy found her eligible for

unemployment benefits, without disqualification.   The Deputy

determined there was insufficient evidence of misconduct.

    The employer appealed the Deputy's determination.     The

Appeal Tribunal forwarded a written notice to appellant and the

employer advising a telephone hearing was scheduled for August

29, 2016.   The notice advised the parties of the time of day and

the telephone number each was to call in order to participate in

the hearing.   On August 17, 2016, appellant sent a letter to the

Appeal Tribunal in which she acknowledged receiving this notice.


                                 2
                                                           A-0799-16T2
    Appellant did not call the Appeal Tribunal at the appointed

time and, thus, did not participate in the hearing.   A

representative from the employer appeared and testified.    The

salient testimony was that, in October 2015, the employer

received a report appellant allowed the students to play music in

and wander out of the classroom and did not take any corrective

action.    In November 2015, appellant was reading a book to the

students in an elementary school class when two male students

pulled down a female student's pants and "hump[ed]" her.

Although in charge of the classroom, appellant was unaware of the

incident.

    The following day, a student reported she asked appellant

for some paper.    When appellant ignored her request, the student

again asked for paper.    Appellant responded by stating she would

choke the student if she repeated her request.    Because of these

three incidents, the employer sent appellant a notice advising

she was terminated.

    Following the hearing, the Appeal Tribunal reversed the

Deputy, finding appellant was disqualified for benefits for the

period November 15, 2015, through January 9, 2016, because she

had committed acts of simple misconduct in violation of 
N.J.S.A.

43:21-5.    The Appeal Tribunal found appellant's threat to choke

the student and her failure to monitor classroom behavior
                                 3
                                                           A-0799-16T2
demonstrated "a disregard of the standards of behavior that the

employer had the right to expect of a certified substitute

teacher.   The [appellant's] actions showed a disregard of the

employer's interest and of the employee's obligations to the

employer."   The Appeal Tribunal remanded the question of whether

appellant was required to refund any benefits she had received.

The Board of Review affirmed the Appeal Tribunal.

    On appeal, appellant contends she did not receive notice of

the telephonic hearing and, thus, was deprived of the opportunity

to testify and refute she threatened to choke a student.     She

also argues she should not have to refund the benefits she did

receive.   She does not specifically address the other allegations

of misconduct, or contest that if any of the allegations were

true, they would constitute simple misconduct.

    The scope of our review of an agency's final decision is

limited.   See In re Stallworth, 
208 N.J. 182, 194 (2011).    We

will not disturb an agency's ruling unless it is arbitrary,

capricious, or unreasonable.   Brady v. Bd. of Review, 
152 N.J.
 197, 210 (1997).   When we "review[] the factual findings made in

an unemployment compensation proceeding, the test is not whether

[we] would come to the same conclusion if the original

determination was [ours] to make, but rather whether the

factfinder could reasonably so conclude upon the proofs."     Ibid.
                                 4
                                                           A-0799-16T2
(quoting Charatan v. Bd. of Review, 
200 N.J. Super. 74, 79 (App.

Div. 1985)).

    We readily dispose of the very limited issues before us.

First, appellant's contention she did not receive notice of the

telephone hearing is resoundingly refuted by her August 17, 2016

letter to the Appeal Tribunal acknowledging she did receive

notice of the hearing.   Second, we decline to address the issue

whether appellant is required to refund the benefits she

received, because neither the Appeal Tribunal nor the Board of

Review decided this question.   See Duddy v. Gov't Emps. Ins. Co.,


421 N.J. Super. 214, 221 (App. Div. 2011) (noting appellate court

need not consider a question not decided by the trial court in

the first instance).

    Affirmed.




                                 5
                                                           A-0799-16T2