Opinion
DOCKET NO. A-4274-12T2
11-10-2014
KRISTY L. SUTTERLEY, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and SALON BY KATHRYN GETTY WILLIAMS DBA GETTY-WILLIAMS STUDIO, Respondents.
Kristy L. Sutterley, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Salon by Kathryn Getty Williams dba Getty-Williams Studio has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Board of Review, Department of Labor, Docket No. 380,261. Kristy L. Sutterley, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief). Respondent Salon by Kathryn Getty Williams dba Getty-Williams Studio has not filed a brief. PER CURIAM
Claimant, Kristy L. Sutterley, appeals the final decision of the Board of Review (Board) which found her disqualified for unemployment benefits after finding she left work voluntarily without cause. As we find the process that gave rise to the Board's determination was in violation of due process and thus fundamentally unfair, we reverse and remand.
Claimant was employed as a hair stylist at a salon owned by Kathryn Getty Williams (Williams). During her employment, claimant was supervised by the salon's manager, Keri Levanduski (Levanduski). After claimant resigned her employment in March 2012, she filed a claim for unemployment benefits. The Deputy Director of the Division of Unemployment and Disability Insurance (Director) determined claimant was disqualified from receiving benefits on the ground she terminated her employment voluntarily without good cause attributable to the work. Claimant appealed. The Appeal Tribunal conducted a telephonic hearing. At the hearing, before the appeal examiner (Examiner), claimant and Williams testified. Prior to taking testimony, the examiner asked whether claimant and Williams would produce any other witnesses. Both responded in the negative.
Claimant testified she left her employment as a result of an "ongoing issue" with her manager, Levanduski. According to claimant, she and Levanduski had a friendly relationship. However, upon returning from a medical leave, claimant learned Levanduski divulged the reason for her leave. Their friendship and work relationship then deteriorated. Claimant testified that, thereafter, Levanduski would "talk down to her" and treat her in a child-like fashion and generally with disrespect. According to claimant, Levanduski's negative attitude began in January 2011, and continued until claimant terminated her employment. The event that triggered her decision to terminate her employment was when she was blamed by Levanduski for undercharging a client. Claimant further testified that Levanduski called her "stupid" and said claimant "make[s] excuses." Claimant alleged she made at least two or three complaints to Williams concerning her problems with Levanduski, but that the problems were never addressed. Claimant acknowledged she did not advise Williams of the incident concerning the alleged undercharging of the client as Williams was out of the country at the time.
Williams testified that while claimant and Levanduski were initially friendly, a tension developed between them after claimant returned from medical leave. Williams said that claimant only advised her on one occasion about the problematic work relationship.
At the conclusion of the hearing, the examiner, in a written decision, found claimant was not disqualified from benefits as she did not leave work voluntarily without good cause. Williams filed an appeal.
In the statement of appeal, Williams raised new points supportive of Levanduski's conduct and critical of claimant's conduct. The Board, after reviewing the proceedings below, remanded the case to the Appellate Tribunal. The Board required additional testimony "from claimant and Levanduski concerning the nature of the [claimant's] separation." The remand hearing was conducted by telephone before the same examiner. Despite the specific basis noted by the Board for the remand, Williams, inexplicably, was permitted to testify again at the remand hearing. Williams supplemented her prior testimony by stating that claimant was very hostile and defiant toward Levanduski over the course of her employment. Williams also testified claimant called in sick on numerous occasions and vacillated between requesting to work full-time and part-time and was otherwise not dependable.
During her testimony, Levanduski denied calling claimant stupid. She further denied ever talking down to claimant. However, Levanduski noted that she had to "call out" claimant for telling stories "that were not necessarily the truth" and for not completing work.
In her testimony, claimant denied she was argumentative or combative with her employer. She also qualified her previous testimony by stating Levanduski did not "word-for-word call [me] stupid." Rather, Levanduski stated, "you're making excuses . . . don't be stupid."
The examiner issued a written opinion affirming the Deputy's original determination and finding claimant disqualified. The examiner found the "employer's testimony was more credible" and that claimant initiated the severing of the employer/employee relationship. Claimant appealed to the Board.
On appeal, the Board affirmed and adopted the Appeal Tribunal's decision based on the record with only a modification of the applicable date for disqualification of benefits. In its decision, the Board found claimant "was given a full and impartial hearing and a complete opportunity to offer any and all evidence."
On appeal, claimant argues the Board's grant of a remand hearing was improper. Claimant also argues that if the remand hearing was proper, the Tribunal's reversal of its factual findings at the second hearing, and the Board's adoption of those findings, were not supported by substantial credible testimony within the record. For the reasons stated herein, we reach the result argued for by claimant without agreement as to her first argument and without need to address her second argument.
The Unemployment Compensation Law is administered by the Board of Review, which acts as a final appeals body from the decisions of appeal tribunals regarding benefit disputes between employers and employees. N.J.A.C. 12:20-3. Under N.J.S.A. 43:21-6(e), the Board is granted broad authority to review the findings of the appeal tribunal. The Board may, "on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it." N.J.S.A. 43:21-6(e).
It is undisputed by the Board's order that the purpose and scope of the remand hearing was for "additional testimony of the claimant and claimant's manager." We presume the Board reviewed the original proceeding in reaching its determination to remand for additional testimony. Had the Board sought additional testimony from Williams, it would have provided for that in its order.
We often review decisions of an administrative agency to address whether the decisions were based upon sufficient credible evidence. We have noted the deference which we accord such decisions. We have no quarrel with the Board's determination to remand for taking additional evidence as it was within its statutory authority. N.J.S.A. 43:21-6(e); see also Softexture Yarns Inc. v. Bd. of Review, Div. of Emp't Sec. Dep't of Labor & Indus. of State, 59 N.J. Super. 57, 63 (App. Div. 1960). However, we part company with the manner in which the ultimate findings were procured. In its decision, the Board found that claimant "was given a full and impartial hearing." We disagree to the extent that a "full" hearing is synonymous with a "fair" hearing.
In Garzon v. Bd. of Review, Dep't of Labor, 370 N.J. Super. 1 (App. Div. 2004), we recognized the importance of adequate procedural safeguards to ensure due process protections in the agency appeal process for unemployment benefits. In Garzon, we noted that the Appeal Tribunal's decision lacked sufficient instruction informing the applicant of the time to file an appeal. In those circumstances, we viewed that "an analysis under fairness principles [coincides] with a procedural due process analysis, since at its core, due process calls for those procedural protections that fairness demands." Id. at 9 (citations omitted).
Due process requires that a party in a judicial hearing receive "notice defining the issues and an adequate opportunity to prepare and respond." McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta v. North Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 162 (1978)). Although in a different context, the Court aptly stated in Nicoletta, "[t]here can be no adequate preparation where . . . the issues litigated at the hearing differ substantially from those outlined in the notice." Nicoletta, supra, 77 N.J. at 162. While the "issues" to be litigated at the second hearing were outlined in the remand order, claimant was not given notice that the "proofs" in opposition to her claim would be substantially different. In the absence of that notice, claimant was not provided with an adequate opportunity to prepare and respond to Williams's unanticipated testimony.
Critical to our decision is the Board's failure to ensure the remand hearing was conducted in accord with its directive. This failure significantly impacted upon the hearing's outcome which turned on the examiner's credibility finding.
Subsequent to the first hearing, after consideration of testimony, the examiner made a determination in favor of claimant. That determination was premised upon a finding that claimant's version of the events leading to her termination of employment was credible. Subsequent to the remand hearing, after consideration of the testimony, the examiner made a determination premised upon a finding that the employer's version of events was "more credible." It follows that the testimony of both Levanduski and Williams influenced the outcome of the proceedings. To be sure, Williams's testimony bolstered Levanduski's testimony and also provided negative comments about claimant's job performance which she did not raise, though given the opportunity, in the prior hearing.
In reaching its determination to affirm the decision of the Tribunal, the Board neither addressed the expanded scope of the proceedings nor did it make independent findings. We conclude that the Board, by not assuring adherence to its order on remand and by affirming the resultant finding, was "plainly mistaken." W.T., supra, 391 N.J. Super. at 36. Moreover, the Board's decision was in disharmony with those "procedural protections that fairness demands." Garzon, supra, 370 N.J. Super. at 9.
The order of the Board is vacated. The matter is remanded for proceedings in conformity with the concerns addressed in this opinion. We do not retain jurisdiction.
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