NICOLE L. DUFAULT VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-2132-15T4

NICOLE L. DUFAULT,

Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT
OF LABOR, and SOUTH ORANGE AND
MAPLEWOOD BOARD OF EDUCATION,

Respondents-Respondents.
___________________________________________________

Submitted April 25, 2017 – Decided May 9, 2017

Before Judges Yannotti and Gilson.

On appeal from the Board of Review, Department
of Labor, Docket No. 051,485.

Caruso Smith Picini, P.C., attorneys for
appellant (Steven J. Kaflowitz, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Peter H. Jenkins, Deputy
Attorney General, on the brief).

Respondent South Orange and Maplewood Board
of Education has not submitted a brief.

PER CURIAM
 Nicole L. Dufault appeals from a final decision of the Board

of Review, which found that she was disqualified from receiving

unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a)

and (b). We affirm.

Dufault was employed by the South Orange and Maplewood Board

of Education (the BOE) as a tenured, high school English teacher.

The BOE suspended Dufault with pay at the beginning of the 2014-

2015 school year. In February 2015, the BOE suspended Dufault

without pay, effective March 1, 2015. On February 22, 2015, Dufault

filed an application for unemployment compensation benefits.

A deputy director in the Division of Unemployment and

Disability Insurance determined that Dufault was disqualified for

benefits pursuant to N.J.S.A. 43:21-5(b) because she was suspended

or discharged for gross misconduct connected with the work. Dufault

appealed the Deputy's determination to the Appeal Tribunal, which

held a hearing in the matter on April 30, 2015.

At the hearing, counsel for the BOE stated that the BOE

suspended Dufault with pay at the beginning of the 2014-2015 school

year when she was arrested. Counsel for the BOE stated that the

BOE later suspended Dufault without pay as of March 1, 2015,

because an Essex County grand jury had returned an indictment

charging her with multiple counts of aggravated sexual assault and

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endangering the welfare of a child. The BOE's attorney stated that

the Essex County Prosecutor's Office (ECPO) had advised the BOE

that the charges were based on allegations that Dufault had engaged

in sexual acts with multiple male students. After it was informed

of the indictment, the BOE suspended Dufault without pay.

Dufault testified that the last day she worked as a teacher

in the South Orange and Maplewood school district was September

15, 2014. When questioned by the appeals examiner about the

charges, Dufault invoked her Fifth Amendment privilege against

self-incrimination and refused to answer any additional questions.

The appeals examiner issued a decision on April 30, 2015. The

examiner found that Dufault was disqualified from benefits

pursuant to N.J.S.A. 43:21-5(b) because she had been discharged

for gross misconduct connected with the work. The examiner noted

that Dufault had been charged with multiple offenses that were

punishable as crimes of the first, second, third, or fourth degree

under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to

104-9.

Dufault appealed the Appeal Tribunal's determination to the

Board, which issued a decision on September 15, 2015. The Board

remanded the matter to the Appeal Tribunal for another hearing.

In its decision, the Board stated that additional testimony from

Dufault and the employer was required with regard to whether

3 A-2132-15T4
Dufault was guilty of the charges for which she had been suspended

and later discharged. In its decision, the Board stated that the

Appeal Tribunal should advise Dufault of "her responsibility to

move the appeal, and of the consequences for her failure to do

so."

The Appeal Tribunal conducted the second hearing on October

6, 2015. At the hearing, the BOE's attorney noted that the ECPO

was handling Dufault's criminal case and he was unaware of the

status of the matter. He also stated that Dufault had resigned

from her position in the school district as of July 21, 2015,

pursuant to a settlement agreement between Dufault and the BOE.

The settlement agreement states in pertinent part that

Dufault "wishes to irrevocably resign" her position, as of July

21, 2015. The BOE's attorney indicated that he did not know if

the BOE would have proceeded with the termination charges if

Dufault had not resigned. He also said he did not know if Dufault

would have been fired if she was completely exonerated on all of

the criminal charges.

The appeals examiner asked Dufault if she was guilty of the

charges. Dufault again asserted her Fifth Amendment privilege

against self-incrimination and refused to answer the question. The

appeals examiner told Dufault that if she was not going to answer

the question, he could draw an adverse inference from her refusal

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to testify. Dufault conceded, however, that she had resigned her

position with the school district. She stated that her attorney

told her she was going to be discharged, but she acknowledged that

the BOE did not tell her she was going to be terminated. Dufault

said the criminal charges were pending, but they were allegations.

Dufault's attorney noted that in the settlement agreement,

the BOE had agreed it would not take any adverse action regarding

Dufault's claim for unemployment benefits. The BOE's attorney

stated, however, that the BOE was merely participating in the

hearing. He said the BOE was not taking any adverse action

regarding her claim.

The appeals examiner issued a decision on October 8, 2015.

The examiner found that Dufault was disqualified for benefits

pursuant to N.J.S.A. 43:21-5(a) and (b). Dufault appealed the

Appeal Tribunal's decision to the Board, and the Board issued a

decision on December 17, 2015, affirming the Tribunal's decision.

The Board found that Dufault was disqualified for benefits

as of July 19, 2015, pursuant to N.J.S.A. 43:21-5(a) because she

left her position for personal reasons, not for reasons connected

with the work. The Board found that the BOE never told Dufault she

would be fired if she did not resign. The Board determined that

the BOE did not terminate Dufault. She chose to resign. The Board

decided that because Dufault voluntarily left her position without

5 A-2132-15T4
good cause attributable to the work, she was disqualified from

receiving benefits.

The Board also found that Dufault was disqualified from

benefits as of February 22, 2015, pursuant to N.J.S.A. 43:21-5(b)

because she was discharged for gross misconduct connected with the

work. The Board noted that Dufault had been charged with offenses

that were punishable as first, second, third, or fourth-degree

crimes under the Code of Criminal Justice. She had invoked her

right against self-incrimination and refused to answer questions

regarding the charges.

The Board stated that a negative inference could be drawn

from Dufault's refusal to testify about the charges. The Board

observed that if Dufault was not guilty, there was no reason for

her to refuse to answer questions about the charges. The Board

wrote, "The only reasonable explanation for the claimant's refusal

to provide a response to the Appeal Tribunal's question is that

she is, in fact, guilty of the charges on which she has been

indicted. No other conclusion is logical or credible." This appeal

followed.

On appeal, Dufault argues: (1) the BOE did not prove that she

had been terminated for gross misconduct; (2) she should receive

unemployment benefits because her claim was not decided

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expeditiously; and (3) the BOE should be bound by the terms of the

settlement agreement.

The scope of our review in an appeal from a final

determination of an administrative agency is strictly limited.

Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub.

Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95,

103 (1985)). The agency's decision may not be disturbed unless

shown to be arbitrary, capricious or unreasonable. Ibid. (citing

In re Warren, 117 N.J. 295, 296 (1989)).

We can only intervene "'in those rare circumstances in which

an agency action is clearly inconsistent with its statutory mission

or with other State policy.'" Ibid. (quoting George Harms Constr.

Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). 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)).

Here, the Board found that Dufault was disqualified from

unemployment compensation benefits under N.J.S.A. 43:21-5(a),

which provides that an individual may not receive benefits if the

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individual "left work voluntarily without good cause attributable

to such work[.]" Although the statute does not define the term

"good cause," it has been construed to mean "cause sufficient to

justify an employee's voluntarily leaving the ranks of the employed

and joining the ranks of the unemployed." Domenico v. Bd. of

Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo

v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)).

There is sufficient credible evidence in the record to support

the Board's finding that Dufault resigned her job voluntarily,

without good cause attributable to the work. She conceded that she

resigned her position in accordance with the settlement she reached

with the BOE. There is no evidence that the BOE had threatened to

terminate Dufault. On appeal, Dufault does not argue that she

resigned her position for good cause attributable to the work.

Rather, Dufault argues that she is entitled to benefits

because the BOE agreed it would not take any adverse action with

regard to her claim for unemployment compensation benefits. We

disagree. As the record shows, the BOE participated in both

hearings. At the second hearing, the BOE's attorney provided the

appeals examiner with information about Dufault's pending criminal

charges and her resignation. The BOE did not, however, take any

adverse position regarding the claim.

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 Although the BOE agreed it would not take any action adverse

to Dufault's claim, that agreement does not require the Board to

grant Dufault's application for unemployment benefits. The Board

was obligated to make its decision regarding her claim in

accordance with the facts and the applicable law, regardless of

any position the BOE may or may not take regarding the claim.

Based on the testimony presented at the hearing, the Board

determined that Dufault was disqualified for benefits pursuant to

N.J.S.A. 43:21-5(a) because she resigned her position voluntarily,

without good cause attributable to the work, and pursuant to

N.J.S.A. 43:21-5(b) because she was suspended and discharged for

gross misconduct connected with the work. There is sufficient

credible evidence in the record to support those findings.

Dufault also argues that the Board erred by finding that she

was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b)

because she was discharged for gross misconduct in connection with

the work. She argues that the BOE had the burden of proving that

she was suspended or discharged for gross misconduct connected

with the work, as required by N.J.A.C. 12:17-10.1(f).

Dufault contends that the only proof of her alleged gross

misconduct was the hearsay statements of the BOE's attorney.

Dufault contends that an administrative decision may not be based

9 A-2132-15T4
solely upon hearsay, and under N.J.A.C. 15:1-15.5(b), each finding

of fact must be supported by "some legally competent evidence."

We are not persuaded by these arguments. Dufault did not

dispute that she had been indicted and charged with multiple

criminal offenses. Dufault was charged with engaging in sex acts

with students at her school. On appeal, Dufault concedes that if

she engaged in such conduct that would constitute gross misconduct

in connection with her work.

As noted previously, at the hearings before the Appeal

Tribunal, Dufault asserted her Fifth Amendment right against self-

incrimination and refused to answer any questions regarding the

charges. Under the circumstances, the Board had the discretion to

draw an adverse inference that she had, in fact, engaged in the

criminal conduct for which she has been charged.

When, as in this matter, a party in a civil matter asserts

the privilege against self-incrimination, the fact-finder may draw

an adverse inference of guilt. Attor v. Attor, 384 N.J. Super.

154, 165-66 (App. Div. 2006) (citing Mahne v. Mahne, 66 N.J. 53,

66 (1974)). See also Bastas v. Bd. of Review, 155 N.J. Super. 312,

315 (App. Div. 1978) (holding that the Board could draw an adverse

inference where claimant for unemployment benefits asserted Fifth

Amendment privilege and refused to testify on facts related to the

claimant's qualification for benefits); Duratron Corp. v. Republic

10 A-2132-15T4
Stuyvesant Corp., 95 N.J. Super. 527, 531-32 (App. Div.)

(concluding that in a civil action, the court may draw an adverse

inference when a litigant invokes the Fifth Amendment and refuses

to testify concerning a matter within his or her personal

knowledge), certif. denied, 50 N.J. 404 (1967); SEC v. Greystone

Nash, Inc., 25 F.3d 187, 190 (3rd Cir. 1994) (noting that "reliance

on the Fifth Amendment in civil cases may give rise to an adverse

inference against the party claiming its benefits") (citing Baxter

v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed.

2d 810, 821 (1976)).

Dufault further argues that the Board's decision should be

reversed because the Appeal Tribunal did not process her appeals

expeditiously, as required by N.J.S.A. 43:21-5(b). This argument

is entirely without merit. The record shows that the Appeal

Tribunal processed the appeals in an expeditious manner. Moreover,

N.J.S.A. 43:21-5(b) does not provide that a claimant is entitled

to benefits if an appeal is not processed in the manner required

by the statute.

Affirmed.

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