Opinion
DOCKET NO. A-2129-13T1
04-23-2015
RACHEL L. BIRZIN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and BROOKDALE COMMUNITY COLLEGE, Respondents.
Rachel Birzin, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brian M. Scott, Deputy Attorney General, on the brief). Respondent Brookdale Community College has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from the Board of Review, Department of Labor, Docket No. 394,926. Rachel Birzin, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brian M. Scott, Deputy Attorney General, on the brief). Respondent Brookdale Community College has not filed a brief. PER CURIAM
Appellant Rachel Birzin appeals from the October 29, 2013 final decision of the Board of Review (Board) Division of Unemployment Insurance (Division), Department of Labor, determining that she was ineligible for benefits during the summer of 2011 and ordering repayment of those benefits. We affirm.
We discern the following facts and procedural history from the record. Brookdale Community College hired Birzin as an instructor in mathematics in September 2009. Thereafter, she taught one or two classes during the fall and spring terms, except for the spring 2010 term. Birzin taught at Brookdale during the spring semester of 2011 and agreed to teach a class for the 2011 fall semester. The college also asked Birzin to teach a class during the summer session, but cancelled the class in May 2011 due to low enrollment. Thereafter, Birzin filed an application for unemployment benefits and soon started receiving benefits.
Birzin's statement of facts claims she was hired in 2008, while the Board's decision said that she was employed at Brookdale "from 9/2009."
Subsequently, the Division determined that Birzin improperly received benefits in 2011 and 2012 because she had a reasonable assurance of reemployment with an educational institution. The Division sent her a letter on July 19, 2012, requesting that she refund the improperly received benefits. Birzin appealed that decision. On February 28, 2013, the appeal tribunal rejected her appeal, found her ineligible, and ordered reimbursement. Birzin appealed that determination to the Board. On June 3, 2013, the Board affirmed the tribunal as to the 2012 benefits, but remanded for a hearing on whether Birzin had a reasonable assurance of reemployment for the fall of 2011 and whether she was liable to refund benefits paid in the summer of 2011. Birzin attended the hearing, but Brookdale did not.
The appeal tribunal, in its initial decision, made no factual findings concerning benefits received in the summer of 2011 and focused wholly on unemployment benefits received in 2012.
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The appeal tribunal issued its remand decision on July 8, 2013, finding that Birzin was employed during the 2011 spring semester and that she expected to work as an adjunct professor during the fall semester. Based on this finding, it concluded that she was ineligible under N.J.S.A. 43:21-4(g)(1) for the benefits she received during the summer of 2011 and was liable to repay $1,190.00. Birzin appealed to the Board, which affirmed the ineligibility finding but modified the repayment amount due to a prior error. This appeal followed.
We begin with a discussion of the applicable legal principles. In considering an agency's final decision, our scope of review is highly deferential and we only inquire into the following questions:
(1) whether the agency's decision offends the State or Federal Constitution;
(2) whether the agency's action violates express or implied legislative policies;
(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)) (internal quotations omitted).]
We will affirm the Board's decision as long as it is supported by "sufficient credible evidence[.]" Id. at 210. Factual conclusions are reviewed to determine whether the factfinder could reasonably reach the conclusion on the record. Ibid. The burden of proof is on the claimant to establish that she is eligible for benefits. Id. at 218.
N.J.S.A. 43:21-4(g)(1) specifically disqualifies individuals who work in an instructive or principal administrative capacity at an educational institution from receiving unemployment benefits for the periods between two successive academic years if the individual works in the first year and has "a contract or a reasonable assurance that [he or she] will perform services in any such capacity for any educational institution in the second of such academic years or terms." N.J.S.A. 43:21-4(g)(1); see Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). N.J.A.C. 12:17-12.4(a)(1) defines the term "reasonable assurance" as "a written, oral, or other implied agreement that the employee shall perform services in any such capacity during the next academic year, term, or remainder of a term." "'Any such capacity' means the same or similar capacity and refers to the type of services provided, that is, a professional capacity . . . or nonprofessional capacity . . . ." N.J.A.C. 12:17-12.4(a)(1).
Birzin acknowledges that prior to the end of the spring 2011 semester, the college asked her to teach courses for the fall term. However, she argues that she did not have a reasonable assurance of returning because her employment "times, days, courses, and location are not definite" and "[t]here is uncertainty regarding all of these circumstances each semester in addition to whether the class will have enough enrollments to run." She states that in the past she was not called back to work during two different spring semesters.
N.J.S.A. 43:21-4(g)(1) tailors the unemployment statute to the unique ten-month term of educational employment. Charatan, supra, 200 N.J. Super. at 79. The Legislature determined that breaks in employment that are part of a regular academic year are reasonably anticipated and "so long as the employment relationship continues, no unemployment compensation is to be paid." Ibid.
In its decision, the Board concluded that Birzin received reasonable assurance that she would be employed for the 2011 fall semester. We are satisfied that the record sufficiently demonstrates, based on her employment history of teaching most fall and spring terms and her informing Brookdale that she was available to teach, that she had reasonable assurances that she would return as an adjunct professor for the fall academic term. There is no dispute that Birzin did in fact teach that fall semester. Thus, any "uncertainty" regarding the fact that her classes may be cancelled at the last minute does not defeat the reasonable assurance she was given prior to the end of the spring semester.
The unemployment law requires "full repayment of unemployment benefits received by an individual who, for any reason, regardless of good faith, was not actually entitled to those benefits." Bannan v. Bd. of Review, 2 99 N.J. Super. 671, 674 (App. Div. 1997). As Birzin was not entitled to unemployment benefits during the summer of 2011, repayment is required even though, as is undoubtedly the case here, she acted in good faith. See Fischer v. Bd. of Review, 123 N.J. Super. 263, 266 (App. Div. 1973).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION