Opinion
DOCKET NO. A-2509-12T1
09-18-2014
DAWN SUSEN, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and LACEY TOWNSHIP BOARD OF EDUCATION, Respondents.
Dawn Susen, appellant, argued the cause pro se. Ernest Bongiovanni, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Mr. Bongiovanni, on the statement in lieu of brief). Lucian Ulmet argued the cause for respondent Lacey Township Board of Education (Stein & Supsie, attorneys; Christopher Leddy, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Hoffman. On appeal from the Board of Review, Department of Labor, Docket No. 384,599. Dawn Susen, appellant, argued the cause pro se. Ernest Bongiovanni, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Mr. Bongiovanni, on the statement in lieu of brief). Lucian Ulmet argued the cause for respondent Lacey Township Board of Education (Stein & Supsie, attorneys; Christopher Leddy, of counsel and on the briefs). PER CURIAM
Claimant Dawn Susen, a school bus driver, appeals from a final decision of the Board of Review, which affirmed the Appeal Tribunal's determination she was disqualified for benefits, concluding her reckless driving conviction, and resulting revocation of her driver's license, constituted leaving work "voluntarily without good cause attributable to the work," under N.J.S.A. 43:21-5(a). Susen argues the decision of the Appeal Tribunal, as adopted by the Board, ignored the fact she could have remained employed as a bus aide with her employer, despite her license revocation. Because the decision under review failed to address this argument, we reverse and remand for reconsideration of Susen's claim.
I.
For fifteen years, from March 1997 to March 2012, Susen was employed by the Lacey Township Board of Education (Lacey Township) as a bus driver, without incident. On March 14, 2012, Susen's driver's license was suspended for ninety days, following her conviction of reckless driving, resulting from an October 1, 2011 automobile accident. The accident occurred while Susen was driving her personal vehicle, after working hours.
On March 15, 2012, Lacey Township terminated Susen's employment because of the license suspension. Susen filed a claim for unemployment benefits. She also applied to Lacey Township to fill an open position as a bus aide, even though the position only paid $8 an hour, slightly more than half her $15.41 an hour rate as a bus driver. Lacey Township declined to hire Susen to fill the bus aide position, without explanation.
On April 20, 2012, the Division of Unemployment Insurance denied Susen's claim, stating:
You were employed in a position which required a valid driver's license as a prerequisite of employment. Your position was solely dependent on possession of this license. Employment ended when you lost this license for committing a voluntary act. You were aware that your actions could jeopardize your license. Therefore, your separation is considered to be a voluntary quit without good cause attributable to the work. You are disqualified for benefits.
On or about June 13, 2012, Susen's license was restored by the Motor Vehicle Commission. On June 14, 2012, Susen delivered letters to each member of Lacey Township's Board of Education requesting reinstatement, citing her fifteen years of dedicated service in the transportation department; she was not rehired.
At Susen's hearing before an Appeal Tribunal concerning the denial of benefits, she explained she did not need a driver's license to work as a bus aide and that, following her dismissal, she had asked to fill an open aide position with Lacey Township. She further stated other workers were willing to drive her to and from work while her license was suspended. According to Susen:
I asked them to put me in a different position . . . . even a lower position. I said I will aide and even take less money just to keep me there until I get my license reinstated, and of course, they needed aides but they still said no.The record is unclear how often Susen may have worked as a bus aide in the past.
. . . .
I did more overtime than the time that we had off. I put in as much overtime as I possibly could. I was always there to take anything they had to give me.
. . . .
I worked on weekends too . . . I took everything I could get.
Relying solely on Susen's testimony, the Appeal Tribunal upheld the denial of benefits based upon Susen's driver's license revocation resulting from her reckless driving conviction. In a brief opinion, the Appeal Tribunal placed heavy reliance upon the following language found in Yardville Supply Co. v. Board. of Review, 114 N.J. 371 (1989):
Where it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a). AThe Appeal Tribunal did not address Susen's argument that her employer had other work available, namely a bus aide, that she had performed in the past and could perform despite the loss of her license. The Board of Review subsequently affirmed the Appeal Tribunal's decision.
driver's license is a prerequisite of employment for those, such as Sparks, who drive for a living. Nevertheless, Sparks jeopardized his license by engaging in a foolish, voluntary act. As such, he cannot claim to be the sort of "involuntarily unemployed" individual that the Unemployment Compensation Act is designed to protect.
[Id. at 377 (footnote omitted).]
N.J.S.A. 43:21-5(a) provides in pertinent part that an employee who "has left work voluntarily without good cause attributable to such work" is ineligible for unemployment compensation benefits. Under this section, the threshold question is whether an applicant for unemployment compensation benefits left his job "voluntarily." In Campbell Soup Co. v. Board of Review, 13 N.J. 431, 435 (1953), Justice Brennan stated that an employee's separation from employment will be considered "voluntary," within the intent of N.J.S.A. 43:21-5(a), "where the decision whether to go or to stay lay at the time with the worker alone . . . ." See also Lord v. Bd. of Review, 425 N.J. Super. 187, 191 (App. Div. 2012).
While the Appeal Tribunal appropriately focused on Yardville Supply as controlling, it failed to address the situation presented here, where the employer has alternative employment available but chooses not to allow the employee to fill the position. In Yardville, truck driver Ernest Sparks lost his job because he was convicted of driving while intoxicated (DWI), which resulted in the revocation of his driver's license. Id. at 372. Relevant to this appeal, however, the Court stated:
We agree that Sparks would be entitled to receive unemployment benefits if there exists substantial evidence that he was employed not solely as a truck driver but in other capacities as well. Under such circumstances loss of his driver's license need not have resulted in automatic unemployment.The record here contains uncontradicted evidence showing, at the time that Susen's driver's license was suspended, Lacey Township had available alternative employment as a bus aide, which Susen was capable of performing satisfactorily. However, the record lacks any clear evidence that Susen was employed solely as a bus driver.
We are convinced, however, that Yardville employed Sparks solely as a truck driver. . . . Moreover, there is no evidence in the record that there was available at Yardville alternative employment that Sparks was capable of performing satisfactorily, at the time that his driver's license was suspended.
[Id. at 378.]
Our review of agency decisions is limited. Catholic Family & Cmty. Servs. v. State-Operated Sch. Dist., 412 N.J. Super. 426, 436 (App. Div. 2010). We only assess whether such decisions are arbitrary, capricious, or unreasonable, or lacking in fair support in the record. Ibid. (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).
The findings in this case, however, were based on a record lacking an important piece of information, i.e. the extent Susen may have worked for Lacey Township as a bus aide, or in other capacities, in the course of her employment. The agency should be afforded the opportunity to make a final decision with all the pertinent facts before it and on a complete record. For that reason, we remand the matter to the Appeal Tribunal for a supplemental hearing.
We acknowledge that the language in Yardville Supply that supports Susen's position, if it is determined she was not employed solely as a bus driver, is dictum.
That being said, we find little analytical value in attempting to draw meaningful distinctions between a Supreme Court's holding and expressions of well-reasoned dictum. Both are legal pronouncements by our State's highest judicial body and are therefore worthy of and entitled to the utmost respect. Indeed, as an intermediateNevertheless, we expect the Board will apply its expertise and discretion in arriving at its final decision, after receiving the fully developed record from the Appeal Tribunal. We do not suggest a particular outcome, nor do we suggest Lacey Township had an affirmative obligation to provide Susen an alternative position. Rather, the issue for review is the scope and nature of Susen's duties in her employment and whether the loss of her license precluded her from performing all of these duties.
appellate court, we consider ourselves bound by carefully considered dictum from the Supreme Court.
[State v. Breitweiser, 373 N.J. Super. 271, 282 (App. Div. 2004).]
Vacated and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION