Opinion
DOCKET NO. A-5198-13T2
04-01-2016
KIMBERLY SUROWICZ, Appellant, v. BOARD OF REVIEW, and ANC CONSTRUCTION CORPORATION, Respondents.
Legal Services of New Jersey, attorneys for appellant (Sarah Hymowitz, Melville D. Miller, Jr., and Anisa Rahim, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent ANC Construction Corporation has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Board of Review, Department of Labor, Docket No. 00001967. Legal Services of New Jersey, attorneys for appellant (Sarah Hymowitz, Melville D. Miller, Jr., and Anisa Rahim, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent ANC Construction Corporation has not filed a brief. PER CURIAM
Claimant Kimberly Surowicz appeals from a June 11, 2014 final decision of the Board of Review, affirming an Appeal Tribunal decision finding that she was disqualified from receiving unemployment benefits because she voluntarily left her job "without good cause attributable to [the] work." N.J.S.A. 43:21-5(a). Because claimant was denied a fair opportunity to present witnesses, and the assigned appeals examiner made credibility determinations adverse to claimant, we reverse and remand for a new hearing before a different appeals examiner.
In light of our disposition of this appeal, we need not address claimant's additional appellate issues. We note that two issues (lack of notice of a possible repayment obligation, and the timeliness of respondent's administrative appeal) were improperly raised for the first time in claimant's appellate reply brief, and we would not address them for that reason as well. See In re Bell Atlantic New Jersey, Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001).
In light of the narrow issue on which we rest our decision, a brief summary of the history will suffice. Shortly after Superstorm Sandy devastated the New Jersey shore area, claimant started working for a contractor who provided both insurance adjuster and construction services in the area. She asserts that she left the job because she believed her employer was taking money from Sandy victims and was not providing them with the services for which they had paid, an unethical practice with which she did not wish to be complicit, and because he was verbally abusive to her. See Casciano v. Board of Review, 300 N.J. Super. 570, 576-77 (App. Div. 1997) (finding the employee was justified in resigning to avoid participating in the employer's "immoral if not illegal conduct"). Claimant applied for unemployment benefits. A claims deputy initially found that she qualified, and she began collecting benefits. The employer filed an appeal, asserting that claimant did not have good cause to quit her job and instead left in a fit of pique after he criticized her work.
Neither side provided us with claimant's initial application or with the deputy's decision.
Prior to the appeal hearing, claimant sent the appeals examiner a two and one-half page, single-spaced letter explaining in detail her reasons for leaving the job. At the end of the letter, she listed the names and telephone numbers of eight witnesses whom she had arranged to be available to testify at the hearing. Claimant also listed each witness's relevant connection to the case. Notably, two of the witnesses were fellow employees. During the hearing, which was conducted by telephone, claimant said she would explain if necessary why each witness was relevant, and noted that the witnesses were available if the appeals examiner wished to call them. Instead of asking claimant to explain why she wanted the witnesses to testify and what relevant information they might provide, the examiner proceeded with the hearing and, after the parties had testified, simply stated that she did not need to hear from the witnesses. The examiner did not explain the reason for that decision. Without explanation, the examiner also declined to hear from any of the employer's witnesses.
Since this was a telephone hearing, of course the examiner needed to "call" (telephonically connect) the witnesses. We will not infer that a pro se litigant in this situation would understand that, by her choice of phrasing, she was ceding to the examiner unbridled discretion whether to allow her witnesses to testify. --------
Nonetheless, without giving either side a chance to present witnesses who might have been able to corroborate their stories, the appeals examiner determined, in her decision, that the employer was "more credible" than claimant. The examiner found that claimant left her job because "she did not like the manner in which the employer conducted his business and the manner in which the employer questioned her about certain job tasks that were not complete or not done correctly." The examiner concluded that was not good cause attributable to the work. As a result of that decision, which the Board upheld, the Board has also demanded that claimant repay more than $11,000 in benefits she already received.
We generally review a tribunal's evidentiary determinations for abuse of discretion, and here we conclude that the appeals examiner mistakenly exercised her discretion. See Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 422 (App. Div. 2010). In deciding this case, we do not determine whether claimant was, in fact, entitled to benefits. Rather, we determine that the hearing was not conducted consistent with due process or consistent with the agency's own regulations, and a rehearing is required.
By statute, the Board's internal hearing procedures may be informal. N.J.S.A. 43:21-6(f). While the tribunal must be impartial, the hearing examiners need not employ "statutory rules of evidence and other technical rules of procedure." Ibid.; see Unemployed-Employed Council of New Jersey, Inc. v. Horn, 85 N.J. 646, 653-54 (1981); Messick v. Board of Review, 420 N.J. Super. 321, 325-26 (App. Div. 2011).
However, the Board's internal procedures must be consistent with due process principles, because claimants have a statutory property interest in receiving benefits, which are '"protected by due process.'" Rivera v. Board of Review, 127 N.J. 578, 584 (1992) (citation omitted); see also Garzon v. Board of Review, 370 N.J. Super. 1, 9-10 (App Div. 2004). One of the critical components of due process and "fundamental fairness" is the right to call witnesses. Peterson v. Peterson, 374 N.J. Super. 116, 124-25 (App. Div. 2005).
Recognizing that right, and recognizing that claimants will often be self-represented, the agency's regulations give claimants the right to call witnesses and encourage appeals examiners to assist pro se litigants through the hearing process.
The appellate body shall open the hearing by ascertaining and summarizing the issue or issues involved in the appeal. The parties, their attorneys or representatives may examine or cross-examine witnesses, inspect documents, and explain or rebut any evidence. An opportunity to present argument shall be afforded the parties, which argument shall be made part of the record. Where a party is not represented, the appellate body shall give every assistance that does not interfere with the impartial discharge of its official duties. The appellate body may examine each party or witness to such extent as it deems necessary.
[N. J.A.C. 1:12-14.2(b) (emphasis added).]
In this case, we conclude that the appeals examiner should have offered claimant the opportunity to call her listed witnesses, especially the witnesses who had worked with her, because they might have been able to corroborate her testimony about the employer's improper business practices and the working conditions in the office. If the examiner doubted whether the witnesses would have relevant knowledge, the examiner should have asked claimant to briefly explain what she expected them to testify about. In light of what was at stake — not only claimant's continued receipt of benefits but her potential obligation to repay over $11,000 — those basic due process protections should have been afforded to her.
We appreciate the difficult task the appeals examiners face. They are called upon to conduct telephonic hearings with unrepresented litigants who may not know how to present their cases, and who may not appreciate concepts of relevance in offering testimony. In the context of a domestic violence appeal, our Supreme Court made the following observation, which is also pertinent here:
Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars . . . may impede the court's willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.Like the Supreme Court in J.D., we do not suggest that appeals examiners "are without means to control testimony or to require that parties present testimony and evidence relevant to the issues in dispute." Id. at 482. "But their obligation is to see to it that justice is accomplished and to conduct and control proceedings in a manner that will best serve that goal." Ibid.
[J .D. v. M.D.F., 207 N.J. 458, 481 (2011).]
Because claimant was denied the opportunity to present witnesses, we are constrained to reverse and remand this matter for a new hearing. Out of an abundance of caution, we direct that the rehearing be held before a different appeals examiner because the examiner in this case made credibility determinations adverse to claimant. See Luedtke v. Shobert, 342 N.J. Super. 202, 219 (App. Div. 2001).
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION