Opinion
DOCKET NO. A-2695-13T3
03-18-2015
WENDY MASSARO-JOHNSON, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, SETON HALL UNIVERSITY, and BROOKDALE COMMUNITY COLLEGE, Respondents.
Wendy Massaro-Johnson, appellant, argued the cause pro se. Nicole M. DeMuro, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. DeMuro, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Board of Review, Department of Labor, Docket No. 435, 981. Wendy Massaro-Johnson, appellant, argued the cause pro se. Nicole M. DeMuro, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. DeMuro, on the brief). PER CURIAM
Appellant Wendy Massaro-Johnson appeals the final administrative agency decision of the Board of Review (Board) in the Division of Unemployment Insurance (Division), determining that she was ineligible for benefits during the summer of 2013. We affirm.
We discern the following facts and procedural history from the record on appeal. In January 2011, Massaro-Johnson became a part-time adjunct professor of community nursing at Seton Hall University. Her teaching responsibilities for the spring semester of the 2012-2013 academic year ended on May 4, 2013. In late May or early June, however, she received an email from one of the administrators at the College of Nursing informing her that she would be asked to teach three courses during the fall semester of the 2013-2014 academic year.
On June 2, Massaro-Johnson filed a claim for unemployment insurance, and subsequently began receiving benefits. On August 2, one of the Division's deputy directors notified Massaro-Johnson that she was not eligible for benefits because she had a reasonable assurance that she would be offered employment for the following term. On the same day, the Division sent Massaro-Johnson a notice that she was required to repay the $2928 she had already received in benefits.
Massaro-Johnson filed administrative appeals of both decisions. A telephone hearing was held before the Appeal Tribunal on September 5, in which both Seton Hall and Massaro-Johnson participated. On September 7, the Appeal Tribunal affirmed, holding that Massaro-Johnson was not eligible because she was employed by an educational institution and had a reasonable assurance that she would perform services during the next term. The Appeal Tribunal relied on N.J.S.A. 43:21-4(g)(1). The Appeal Tribunal also determined that Massaro-Johnson was required to refund the benefits already received.
Massaro-Johnson appealed to the Board, which affirmed the Appeal Tribunal in an order dated January 2, 2014. This appeal followed. Massaro-Johnson argues that the Board erred in affirming the Appeal Tribunal, which she argues misapplied the applicable law.
Our scope of review of an administrative agency action is limited and highly deferential. It is restricted to the following inquiries:
(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, 211 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]So long as the Board's decision is supported by sufficient credible evidence in the record and was neither "arbitrary, capricious, [nor] unreasonable," it will be affirmed. Id. at 210 (citing In re Warren, 117 N.J. 295, 296 (1989)).
We also review factual findings made by an administrative agency deferentially. On appeal, "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. (emphasis added) (quoting Charatan v. Bd. of Review, 2 00 N.J. Super. 74, 79 (App. Div. 1985)). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
The applicant has the burden to establish her right to receive unemployment benefits. Brady, supra, 152 N.J. at 218. N.J.S.A. 43:21-4(g)(1) provides that, with respect to teaching employees of
an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular terms, whether or not
successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.
N.J.A.C. 12:17-12.4(a)(1) provides that "[t]he term 'reasonable assurance' of returning to work means 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." It further provides that the term "'[a]ny such capacity' means the same or similar capacity and refers to the type of services provided, that is, a professional capacity."
Massaro-Johnson argues that she did not have a reasonable assurance of returning to Seton Hall because, by its very nature, an adjunct faculty member is not necessarily offered the same amount of work in the following semester and may not be offered any. We disagree.
The record reflects a pattern of recurrent adjunct teaching offers from Seton Hall to Massaro-Johnson. In spring 2013, she was promised teaching for the 2013-2014 fall semester and she did ultimately sign a contract for that semester. That the teaching load might not be identical is not determinative because, pursuant to N.J.A.C. 12:17-12.4(a)(1), the requirement is that the next semester's offer be for work in the same or similar capacity. As we noted in Charatan, supra, 200 N.J. Super. at 79, N.J.S.A. 43:21-4(g)(1) is "tailored to meet the unique ten month term of educational employment. There is a predictable hiatus in the period during which actual work is performed, due to the summer vacation, and as long as the employment relationship continues, no unemployment compensation is to be paid." Because Massaro-Johnson was not entitled to unemployment benefits, 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. 1993).
Massaro-Johnson's remaining arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we note that she has the right to request a waiver of the refund pursuant to N.J.A.C. 12:17-14.2.
In addition, we are cognizant that Massaro-Johnson's appellate briefs refer to issues related to her unemployment claim concerning Brookdale Community College, at which she had been a fulltime adjunct professor and was subsequently reduced to part-time. That issue is not properly before us because the claims involving Seton Hall and Brookdale are separate and unrelated. Consequently, our affirmance here does not address any appellate issues she may have with respect to her Brookdale claim, which she can pursue separately.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION