NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5219-14T1
MONMOUTH COUNTY,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and AUDREY K. DUNWOODY,
Respondents. ___________________________
Submitted February 27, 2017 – Decided March 9, 2017
Before Judges Sabatino and Haas.
On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 32895.
Gluck Walrath, LLP, attorneys for appellant (Andrew Bayer, of counsel and on the brief; C. Lynn Centonze, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent Board of Review and Workforce Development (Melissa H. Raksa, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief). Respondent Audrey K. Dunwoody has not filed a brief.
PER CURIAM
Appellant County of Monmouth ("the County") appeals from the
June 12, 2015 final decision of the Board of Review, Department
of Labor and Workforce Development ("Board"), affirming the Appeal
Tribunal's October 20, 2014 determination that respondent Audrey
Dunwoody was eligible for unemployment compensation benefits.
After reviewing the record before us, and mindful of the prevailing
legal standards, we reverse and remand for a new hearing before
the Appeal Tribunal.
We derive the following facts from the record. Respondent
worked as a certified nurse's aide in a County-operated nursing
home. Approximately one month after she began work in March 2013,
respondent claimed she injured her knee on the job and she filed
a worker's compensation claim. Respondent continued to work until
August 2013, when she informed her supervisor that she could no
longer work due to her injury. Thereafter, respondent did not
return to work.
In December 2013, the County asserted that it sent respondent
a copy of a letter denying her worker's compensation claim,
together with information on how to request a leave of absence.
When respondent did not respond, the County initiated proceedings
2 A-5219-14T1 to remove her from employment based on her abandonment of her
position. However, respondent appeared at the departmental
hearing in January 2014 and claimed that she had never received
the information from the County. The County alleged that it then
gave respondent another copy of the leave request form, but she
failed to complete and return it with the required medical
documentation supporting her claim that she could not work for the
period between September 2013 and January 2014. On April 3, 2014,
the County terminated respondent's employment for abandoning her
job.
Respondent filed a claim for unemployment compensation
benefits. On August 28, 2014, a Deputy Claims Examiner ("Deputy")
found that respondent left work voluntarily without good cause
attributable to the work, and denied her claim. Respondent filed
an appeal to the Appeal Tribunal from this determination and the
hearing examiner scheduled a telephone hearing for October 16,
2014.
The County had previously retained a private company to
represent it in unemployment compensation matters. The
representative from the company arranged for three witnesses from
the County to testify at the Appeal Tribunal hearing in opposition
to respondent's application for benefits. As instructed by the
notice of hearing, the representative and the three witnesses
3 A-5219-14T1 called the hearing examiner at the appointed time to participate
in the hearing. At that time, however, they were told to hang up
and wait for a call back from the hearing examiner.
Later that morning, the hearing examiner called the County's
representative to begin setting up the conference call. However,
when the examiner called the County's first witness, a different
County employee answered the telephone and told the examiner that
the witness was "in a meeting with the Department of Health." The
representative asked the examiner to call the same telephone number
and ask for the second witness. The examiner did so and was again
mistakenly advised that this witness was also not available.
At that point, the County representative told the hearing
examiner, "Sorry sir. I guess, we'll have to reopen it in the
event that it's necessary." The examiner replied, "All right,
thank you." The representative stated, "Have a good day"; the
examiner replied, "You too"; and the representative said goodbye.
The hearing examiner then called respondent and conducted the
telephone hearing without the County's representative or its three
witnesses. The examiner told respondent that the representative
and the three witnesses "did report for the hearing," but the
witnesses were not available when he called them back. The
examiner stated:
4 A-5219-14T1 So, the [County] was unable to participate at the time of the hearing. I don't . . . the representative disconnected proceeding at that point, and as this is a claimant appeal we are going to proceed with the hearing today, and as I don't have any request for postponement or . . . on . . . on this matter. [(alterations in original).]
At the hearing that followed, respondent asserted that she
was unable to work because of a medical condition and that her
doctor had told her she should stay off her leg and rest.
Respondent also claimed that she never received any of the forms
the County sent her because the County did not use her correct
address.
On October 20, 2014, the Appeal Tribunal hearing examiner
issued a decision reversing the Deputy's determination. Based
upon respondent's uncontradicted testimony, the examiner found
that respondent was absent from work due to "a medical condition"
and that respondent "made a reasonable effort to preserve her
employment, but was terminated nonetheless." Therefore, the
examiner concluded that because respondent did not leave work
voluntarily, she was eligible for unemployment benefits.
On October 24, 2014, the County's representative filed a
timely appeal of the Appeal Tribunal's decision to the Board. In
the letter requesting the appeal, the representative asked for
"permission to present written argument (a brief) to the Board
5 A-5219-14T1 . . . and also request[ed] that a copy of the transcript" of the
Appeal Tribunal hearing. The representative asked the Board to
"refrain from making a decision until we submit our written
argument."
On appeal, the County alleges that it never heard back from
the Board and, therefore, it never filed a brief in support of its
appeal. However, the Board asserts that it sent a responsive
letter to the County's representative on November 18, 2014, which
included a recording of the Appeal Tribunal hearing on a compact
disc. The letter, which was signed by a secretarial assistant,
also stated that the County had to submit any "written argument"
within fourteen days of the mailing date of the letter.
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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-5219-14T1
MONMOUTH COUNTY,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and AUDREY K. DUNWOODY,
Respondents. ___________________________
Submitted February 27, 2017 – Decided March 9, 2017
Before Judges Sabatino and Haas.
On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 32895.
Gluck Walrath, LLP, attorneys for appellant (Andrew Bayer, of counsel and on the brief; C. Lynn Centonze, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent Board of Review and Workforce Development (Melissa H. Raksa, Assistant Attorney General, of counsel; Elizabeth A. Davies, Deputy Attorney General, on the brief). Respondent Audrey K. Dunwoody has not filed a brief.
PER CURIAM
Appellant County of Monmouth ("the County") appeals from the
June 12, 2015 final decision of the Board of Review, Department
of Labor and Workforce Development ("Board"), affirming the Appeal
Tribunal's October 20, 2014 determination that respondent Audrey
Dunwoody was eligible for unemployment compensation benefits.
After reviewing the record before us, and mindful of the prevailing
legal standards, we reverse and remand for a new hearing before
the Appeal Tribunal.
We derive the following facts from the record. Respondent
worked as a certified nurse's aide in a County-operated nursing
home. Approximately one month after she began work in March 2013,
respondent claimed she injured her knee on the job and she filed
a worker's compensation claim. Respondent continued to work until
August 2013, when she informed her supervisor that she could no
longer work due to her injury. Thereafter, respondent did not
return to work.
In December 2013, the County asserted that it sent respondent
a copy of a letter denying her worker's compensation claim,
together with information on how to request a leave of absence.
When respondent did not respond, the County initiated proceedings
2 A-5219-14T1 to remove her from employment based on her abandonment of her
position. However, respondent appeared at the departmental
hearing in January 2014 and claimed that she had never received
the information from the County. The County alleged that it then
gave respondent another copy of the leave request form, but she
failed to complete and return it with the required medical
documentation supporting her claim that she could not work for the
period between September 2013 and January 2014. On April 3, 2014,
the County terminated respondent's employment for abandoning her
job.
Respondent filed a claim for unemployment compensation
benefits. On August 28, 2014, a Deputy Claims Examiner ("Deputy")
found that respondent left work voluntarily without good cause
attributable to the work, and denied her claim. Respondent filed
an appeal to the Appeal Tribunal from this determination and the
hearing examiner scheduled a telephone hearing for October 16,
2014.
The County had previously retained a private company to
represent it in unemployment compensation matters. The
representative from the company arranged for three witnesses from
the County to testify at the Appeal Tribunal hearing in opposition
to respondent's application for benefits. As instructed by the
notice of hearing, the representative and the three witnesses
3 A-5219-14T1 called the hearing examiner at the appointed time to participate
in the hearing. At that time, however, they were told to hang up
and wait for a call back from the hearing examiner.
Later that morning, the hearing examiner called the County's
representative to begin setting up the conference call. However,
when the examiner called the County's first witness, a different
County employee answered the telephone and told the examiner that
the witness was "in a meeting with the Department of Health." The
representative asked the examiner to call the same telephone number
and ask for the second witness. The examiner did so and was again
mistakenly advised that this witness was also not available.
At that point, the County representative told the hearing
examiner, "Sorry sir. I guess, we'll have to reopen it in the
event that it's necessary." The examiner replied, "All right,
thank you." The representative stated, "Have a good day"; the
examiner replied, "You too"; and the representative said goodbye.
The hearing examiner then called respondent and conducted the
telephone hearing without the County's representative or its three
witnesses. The examiner told respondent that the representative
and the three witnesses "did report for the hearing," but the
witnesses were not available when he called them back. The
examiner stated:
4 A-5219-14T1 So, the [County] was unable to participate at the time of the hearing. I don't . . . the representative disconnected proceeding at that point, and as this is a claimant appeal we are going to proceed with the hearing today, and as I don't have any request for postponement or . . . on . . . on this matter. [(alterations in original).]
At the hearing that followed, respondent asserted that she
was unable to work because of a medical condition and that her
doctor had told her she should stay off her leg and rest.
Respondent also claimed that she never received any of the forms
the County sent her because the County did not use her correct
address.
On October 20, 2014, the Appeal Tribunal hearing examiner
issued a decision reversing the Deputy's determination. Based
upon respondent's uncontradicted testimony, the examiner found
that respondent was absent from work due to "a medical condition"
and that respondent "made a reasonable effort to preserve her
employment, but was terminated nonetheless." Therefore, the
examiner concluded that because respondent did not leave work
voluntarily, she was eligible for unemployment benefits.
On October 24, 2014, the County's representative filed a
timely appeal of the Appeal Tribunal's decision to the Board. In
the letter requesting the appeal, the representative asked for
"permission to present written argument (a brief) to the Board
5 A-5219-14T1 . . . and also request[ed] that a copy of the transcript" of the
Appeal Tribunal hearing. The representative asked the Board to
"refrain from making a decision until we submit our written
argument."
On appeal, the County alleges that it never heard back from
the Board and, therefore, it never filed a brief in support of its
appeal. However, the Board asserts that it sent a responsive
letter to the County's representative on November 18, 2014, which
included a recording of the Appeal Tribunal hearing on a compact
disc. The letter, which was signed by a secretarial assistant,
also stated that the County had to submit any "written argument"
within fourteen days of the mailing date of the letter.
Notably, this letter was not on official Board letterhead.
The County asserts that it never received this letter and could
not locate a copy of it in its files after the Board attached it
to its appellate brief as a result of the Board's successful motion
to supplement the record on appeal.
Seven months later, the Board issued a one-page final
decision, affirming the Appeal Tribunal's determination. The
Board stated that "[s]ince [the County] was given a full and
impartial hearing and a complete opportunity to offer any and all
evidence, there is no valid ground for a further hearing." This
appeal followed.
6 A-5219-14T1 On appeal, the County asserts that the Appeal Tribunal erred
by failing to adjourn the hearing when its witnesses could not be
contacted, and that it should have reopened the hearing as
requested by the County's representative. It also argues that
there is no basis in the record to support the Board's finding
that the County "was given a full and impartial hearing and a
complete opportunity to offer any and all evidence[.]" Based upon
the unique circumstances of this case, we agree with the County's
contention.
We begin by recognizing that our review of an administrative
agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197,
210 (1997). "Unless . . . the agency's action was arbitrary,
capricious, or unreasonable, the agency's ruling should not be
disturbed." Ibid.
At the same time, however, the procedures used by the agency
to arrive at its final decision must be fair to both parties.
Garzon v. Bd. of Review, 370 N.J. Super. 1, 9 (App. Div. 2004)
(observing due process "calls for those procedural protections
that fairness demands"). Thus, N.J.A.C. 1:12-14.2(a) specifically
requires that hearings before the Appeal Tribunal and Board of
Review "shall be fair and impartial and shall be conducted in such
manner as may be best suited to determine the parties' rights."
7 A-5219-14T1 We are not satisfied that this standard was met in this case.
Here, the County representative and three witnesses called in at
the appointed time for the Appeal Tribunal hearing. However, the
representative and the witnesses were told to hang up and wait for
a call back from the hearing examiner. The examiner later re-
connected with the representative but could not get back in touch
with the witnesses after a County employee mistakenly told him
that the witnesses were in a meeting.
At that point, the hearing examiner knew that the County had
already indicated its strong interest in participating in the
hearing by calling at the appointed time with all of its witnesses
ready and available. The examiner was also aware that something
unforeseen had happened that prevented him from re-connecting with
the witnesses.1 Thus, a more prudent course of action would have
been to give the County representative some time to call the County
and obtain an explanation for the misunderstanding. After all,
the examiner did not even have respondent on the conference call
at that point. However, the examiner did not make this offer to
the representative.
1 Indeed, when the County employee who answered the telephone told the hearing examiner that the first witness was in a meeting with the Department of Health, the examiner stated, "I wonder . . . if it was something that they got surprised with."
8 A-5219-14T1 Moreover, when the County representative stated, "I guess,
we'll have to reopen it in the event that it's necessary[,]" the
hearing examiner did not ask if the representative was requesting
an adjournment. The examiner also did not tell the representative
that in the absence of such a request, he planned to call
respondent and conduct the hearing without the County's witnesses
as soon as the representative hung up.
The Board's regulations concerning the conduct of telephone
hearings specifically contemplate that there will be instances
when a party does not appear at a telephone hearing for reasons
other than inadvertence or neglect. In this regard, N.J.A.C.
1:12-14.6(b) states that "[a]ny party who fails to appear at the
scheduled telephone hearing shall meet the requirements of
N.J.A.C. 1:12-18.4 before any reopening of the hearing shall be
granted." N.J.A.C. 1:12-18.4(a)(2) provides that a request to
reopen a hearing may be filed if "[t]he party did not appear at
the Appeal Tribunal for good cause shown[.]"
Under the idiosyncratic facts of this case, we believe the
County established good cause to warrant a reopening of the Appeal
Tribunal hearing. As discussed above, the County's representative
and witnesses called the Appeal Tribunal at the appointed time and
were ready to proceed. They were instructed to hang up and wait
for a call back from the hearing examiner. As the result of a
9 A-5219-14T1 mistake by the employee who answered that call, the examiner was
told the witnesses were not available. Under these uncommon
circumstances, basic fairness requires that the County be given
the opportunity to present its factual and legal arguments to the
Appeal Tribunal at a new hearing at which respondent may also
participate.2
Accordingly, we reverse the Board's June 12, 2015 decision
and remand to the Appeal Tribunal for a new hearing. In doing so,
we intimate no view on respondent's substantive claim for benefits
or the County's arguments in opposition to that claim, as those
matters will be the subject of our remand.
Reversed and remanded. We do not retain jurisdiction.
2 We again note that the County contends on appeal that the Board never responded to its letter asking for permission to file a brief in support of its appeal of the Appeal Tribunal's decision granting unemployment benefits to respondent. The Board disputes this allegation. However, in light of our determination that a new hearing is required, we need not address this contention further.
10 A-5219-14T1