ANN T. SEIDERMAN v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE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-0885-17T3

ANN T. SEIDERMAN,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and NEW BRUNSWICK
BOARD OF EDUCATION,

     Respondent.
____________________________

                    Submitted January 15, 2019 – Decided January 29, 2019

                    Before Judges Geiger and Firko.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 109,537.

                    Oxfeld Cohen, PC, attorneys for appellant (Samuel B.
                    Wenocur, of counsel and on the briefs).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent Board of Review (Melissa Dutton Schaffer,
                    Assistant Attorney General, of counsel; Aimee Blenner,
                    Deputy Attorney General, on the brief).
            Respondent New Brunswick Board of Education has
            not filed a brief.

PER CURIAM

      Ann T. Seiderman appeals from a final agency decision of the Board of

Review (Board), finding her disqualified from unemployment benefits after

determining she left work voluntarily from the New Brunswick Board of

Education (BOE) without cause attributable to her work. Seiderman argues that

she established good cause within the meaning of  N.J.S.A. 43:21-5(a), thereby

entitling her to unemployment benefits. Since the Board's decision was based

upon facts within the record and was consistent with relevant law, we affirm.

                                       I.

      Seiderman was employed by the BOE at the Lord Stirling Community

School as a resource center teacher from September 2005 through December 31,

2016, when she resigned from her position in lieu of tenure charges being

brought against her. The charges stated, "despite numerous meetings between

[] Seiderman and Board personnel, [her] overall instruction and management did

not improve." Two Corrective Action Plans were created in September 2014

and September 2015 as attempts to correct her "unsatisfactory professional

competency as evidenced by the Teacher Practice Rubric." The three domains

in the rubric included: planning and preparation, classroom environment, and

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instruction. Between September 2014 and September 2016, she had twenty-four

classroom visits.     Formal observations took place on six occasions and

Seiderman repeatedly was given scores of "emerging" and "basic." Corrective

plans were unsuccessful. Her salary increment for the 2015-2016 academic year

was withheld because of her poor performance.

      In July 2016, Seiderman was offered a paraprofessional position subject

to BOE approval. Seiderman refused to accept this position, even though she

was informed that the district would proceed with tenure charges because she

was not meeting proficiency levels.            Consequently, tenure charges for

inefficiency were brought against her in October 2016 pursuant to  N.J.S.A.

18A:6-17.3. Seiderman was notified that the BOE would review the tenure

charges at its November 15, 2016 meeting. She submitted her resignation on

November 14, 2016, with an effective date of December 31, 2016.

      On January 13, 2017, the Department of Labor (DOL) issued a Notice of

Determination,      finding   Seiderman       was   disqualified   from   receiving

unemployment benefits as of January 1, 2017. The examiner concluded that

"possible disciplinary action for tenure charges regarding performance" did not

constitute good cause, and there was no evidence that her termination was

"imminent." Seiderman filed an administrative appeal with the Appeal Tribunal


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(Tribunal), which upheld the DOL's decision. The Board affirmed the Tribunal's

decision.

      On appeal, Seiderman argues that the Board's decision was arbitrary and

capricious. She contends that she was denied a fair hearing because of hearing

adjournments improvidently granted by the Tribunal examiner, and because the

BOE was allowed to raise the issue of her refusal to perform suitable work for

the first time during the May 30, 2017 hearing, resulting in prejudice to her.

      Our scope of review of a determination of an administrative agency is

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

deference to the agency's interpretation of a statute it is charged with enforcing.

Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n,  144 N.J. 16, 31 (1996).

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). "If the factual

findings of an administrative agency are supported by sufficient credible

evidence, [we] are obliged to accept them." Self v. Bd. of Review,  91 N.J. 453,

459 (1982).

                                        II.

      Seiderman argues that the Tribunal's granting of adjournments deprived

her of a fair hearing because:


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            [BOE] had been put on notice that the parties could
            retain attorneys[;] [BOE] failed [to] request the
            adjournment in writing before the hearing[;] [BOE]'s
            request was not for an exceptional situation as it was
            reasonably foreseeable that Seiderman would retain
            legal counsel for the hearing[;] Additionally, a witness
            did not have the authority to request an adjournment for
            a party.

      She contends the first adjournment request, relative to the telephonic

February 16, 2017 hearing, "penalized" her and "rewarded" the BOE, thereby

"corrupt[ing] [her] appeal as to have rendered it unreliable." Seiderman argues

that after she and a BOE representative testified, a BOE witness, Marnie McKoy,

requested an adjournment to allow the BOE to retain counsel. The examiner

granted the adjournment request and postponed the hearing until April 11, 2017.

As to the adjournment of the April 11 hearing, Seiderman argues this was "an

egregious mistake," and since the BOE failed to appear, the examiner should

have closed the case, and the BOE should have been compelled to reopen it.1 In

reply, the BOE argued it did not appear on April 11 because it was closed for

spring break.   We disagree with Seiderman that the adjournments were

improvidently granted.


 1 N.J.A.C. 1:12-18.4 requires a party requesting to reopen their case to do so
"as promptly as possible." Each party then has ten days to submit written
arguments. The Tribunal will then schedule a hearing, and issue an amended
decision or deny the request with an order explaining its reasons for doing so.
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      The power to grant an adjournment for a hearing rests solely with the

Tribunal. N.J.A.C. 1:12-9.2. The code states: "[r]equests for adjournment of

hearings schedule[d] before the [] [T]ribunal shall be made to the [] [T]ribunal

which shall use its best judgment as to when adjournments of hearings shall be

granted in order to secure all facts that are necessary and to be fair to the parties."

Ibid. The hearing notice provides that postponement requests "should be in

writing and received by the Tribunal no later than [twenty-four] business hours

prior to the start of the hearing."

      Although the BOE was "on notice" of the first hearing date and its right

to retain counsel, we are satisfied from our review of the record that the BOE

and McKoy were unaware that Seiderman would be represented by counsel.

McKoy persuasively argued that these hearings do not typically involve counsel.

Here, the addition of counsel "elevate[d] the level of conversation and . . . put

[] the [BOE] at a disadvantage because [it did not] have the ability to hav[e] [its]

counsel [t]here to guide [it] as [did] [Seiderman]." We agree and find no abuse

of discretion by the examiner in granting the first adjournment request and no

resulting prejudice to Seiderman.

      As to the adjournment of the second hearing date, the BOE did not appear

because its office was closed for spring break. Counsel for Seiderman sent a


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letter to the examiner in advance thereof requesting that the matter be heard

peremptorily on April 11. The record does not reveal that consent was sought

or given by the BOE or the examiner for a peremptory designation. There was

a justifiable reason, i.e., spring break, for the examiner to adjourn the hearing

again. We find no evidence in the record to support Seiderman's contention that

the examiner violated her duty under N.J.A.C. 1:12-9.2 or that any prejudice

resulted.

      During the May 30, 2017 telephonic hearing, the BOE raised the "refusal

of suitable work" issue for the first time, and the examiner adjourned the matter

until July 5, 2017, to provide Seiderman with an opportunity to respond. Again,

the adjournment request was within the discretion of the examiner and actually

inured to Seiderman's benefit. As to the merits of the "refusal of suitable work"

argument, this court is not required to address it because it was not raised below.

See Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2019)

("The rule that issues not raised below will not be considered on appeals applies

as well to review of administrative agency decisions.").          Because of the

importance of this issue, we will address it.

      Seiderman argues that the Board erred by considering testimony on the

refusal of suitable work on review because it was outside the scope of the appeal.


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We note that when this issue was presented, Seiderman's counsel did not object

to the testimony when it was first introduced at the July 2017 hearing. She

further claims "an employer cannot raise an issue outside the scope of an

administrative appeal." Relying on Town of West New York v. Bock,  38 N.J.
 500, 522 (1962), and Hammond v. Monmouth Cty. Sheriff's Dep't,  317 N.J.

Super. 199, 204-05 (App. Div. 1999), she claims that an employee cannot be

tried for charges in the absence of notice, and that the right to an appeal belongs

to the employee. The cases cited by Seiderman are factually distinguishable.

Unlike Town of West New York, where the employee did not receive notice of

a charge against him, Seiderman was provided with notice of tenure charges.

The "new" issue of refusal to accept suitable work was introduced by the BOE

as a defense to her benefits claim, and not as a separate "charge" against her.

Hammond is also distinguishable. There, we stated that police officers have a

right to appeal to the Merit System Board to ensure that promotions are based

on employees' merit and abilities. Hammond,  317 N.J. Super. at 205.

      We are also unpersuaded by Seiderman's argument that In re Am. Reliance

Ins. Co.,  251 N.J. Super. 541, 557 (App. Div. 1991) supports her position

because in that case, an order executed two months after the appeal was filed,

was determined to be outside the scope of the appeal. In Byram Twp. Bd. of


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Educ. v. Byram Twp. Educ. Ass'n,  152 N.J. Super. 12, 28 (App. Div. 1977), a

teacher's contract case cited by Seiderman, we found that certain proposals to a

new contract were outside the scope of the appeal because they were already

determined to not be mandatorily negotiable. That case has no precedential

value to this case.

      Here, the facts surrounding Seiderman's refusal to accept other suitable

work was an important factor in determining whether she resigned from her

employment with good cause. Seiderman's refusal to accept the alternative

employment offered to her was initiated by the examiner's questioning of

McKoy to ascertain the basis of Seiderman's resignation. McKoy testified that

Seiderman "declined a position that [the BOE] offered her as a paraprofessional

and opted to resign in lieu of having the tenure charges brought against her."

McKoy's testimony was clearly within the scope of this appeal, and we find no

error by the examiner on this issue.

      Seiderman also argues that the examiner relied on testimony from McKoy

even though she was not present during pertinent discussions regarding

Seiderman's employment situation. We note that the Tribunal is not confined to

the "common law or statutory rules of evidence and other technical rules of

procedure."  N.J.S.A. 43:21-6(f). In addition, N.J.A.C. 1:12-15.1(b) provides


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that "hearsay evidence shall be admissible and accorded whatever weight the

examiner deems relevant, appropriate, and reasonable under the circumstances."

The decision must be supported by "sufficiently substantial and legally

competent evidence[,]" notwithstanding the hearsay evidence, however. Ibid.

Seiderman was extended a written offer in July 2016 for the paraprofessional

position that was provided to the examiner. Therefore, the examiner's decision

was not solely based on McKoy's testimony.

      Moreover, the review by the Board "may be heard upon the evidence in

the record made before the [Tribunal] . . . ." N.J.A.C. 1:12-14.3(a). Therefore,

there was no error in the Board considering McKoy's testimony.

      The Tribunal issued its final decision on August 1, 2017, upholding the

DOL decision to disqualify Seiderman from receiving unemployment benefits.

On September 25, 2017, the Board affirmed the Tribunal's finding that

Seiderman "left work voluntarily for disqualifying reasons," but modified the

date of disqualification to December 25, 2016.

                                      III.

      The New Jersey Unemployment Compensation Law (the Act) provides

that a person is disqualified from receiving unemployment benefits "[f]or the

week in which the individual has left work voluntarily without good cause


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attributable to such work . . . ."  N.J.S.A. 43:21-5(a). A person who voluntarily

quits work for personal reasons, as opposed to causes attributable to the work,

is ineligible for benefits. See Self,  91 N.J. at 456-57.

      "'Mere dissatisfaction with working conditions which are not shown to be

abnormal or do not affect health, does not constitute good cause for leaving work

voluntarily.'" Domenico v. Bd. of Review,  192 N.J. Super. 284, 288 (App. Div.

1983) (quoting Medwick v. Review Bd.,  69 N.J. Super. 338, 345 (App. Div.

1961)). An employee's "decision to leave employment must be compelled by

real, substantial and reasonable circumstances not imaginary, trifling and

whimsical ones." Ibid. Moreover, "it is the employee's responsibility to do what

is necessary and reasonable in order to remain employed." Ibid. (citing Condo

v. Review Bd.,  158 N.J. Super. 172, 175 (App. Div. 1978)).

      Seiderman contends that she involuntarily resigned because she felt forced

by her employer to choose between resigning and being terminated because of

tenure charges against her. We are not persuaded by her arguments.

      An employee who resigns in the absence of objective factors or conditions

within the work environment demonstrating imminent danger of termination

leaves work without good cause attributable to the work. See Brady, 152 N.J.




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at 219; see also Trupo v. Bd. of Review,  268 N.J. Super. 54, 61-62 (App. Div.

1993).

      In sum, the Board's decision that Seiderman was ineligible for

unemployment benefits was supported by substantial, credible evidence, and we

find no reason to disturb it.

      Affirmed.




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