RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2132-15T4

NICOLE L. DUFAULT,

Claimant-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and SOUTH ORANGE AND

MAPLEWOOD BOARD OF EDUCATION,

Respondents-Respondents.

___________________________________________________

Submitted April 25, 2017 – Decided

Before Judges Yannotti and Gilson.

On appeal from the Board of Review, Department 

of Labor, Docket No. 051,485.

Caruso Smith Picini, P.C., attorneys for 

appellant (Steven J. Kaflowitz, on the brief).

Christopher S. Porrino, Attorney General, 

attorney for respondent Board of Review 

(Melissa Dutton Schaffer, Assistant Attorney 

General, of counsel; Peter H. Jenkins, Deputy 

Attorney General, on the brief).

Respondent South Orange and Maplewood Board 

of Education has not submitted a brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

May 9, 2017
2 A-2132-15T4

Nicole L. Dufault appeals from a final decision of the Board 

of Review, which found that she was disqualified from receiving 

unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) 

and (b). We affirm.

Dufault was employed by the South Orange and Maplewood Board 

of Education (the BOE) as a tenured, high school English teacher. 

The BOE suspended Dufault with pay at the beginning of the 2014-

2015 school year. In February 2015, the BOE suspended Dufault

without pay, effective March 1, 2015. On February 22, 2015, Dufault

filed an application for unemployment compensation benefits. 

A deputy director in the Division of Unemployment and 

Disability Insurance determined that Dufault was disqualified for 

benefits pursuant to N.J.S.A. 43:21-5(b) because she was suspended 

or discharged for gross misconduct connected with the work. Dufault

appealed the Deputy's determination to the Appeal Tribunal, which 

held a hearing in the matter on April 30, 2015. 

At the hearing, counsel for the BOE stated that the BOE 

suspended Dufault with pay at the beginning of the 2014-2015 school 

year when she was arrested. Counsel for the BOE stated that the 

BOE later suspended Dufault without pay as of March 1, 2015, 

because an Essex County grand jury had returned an indictment 

charging her with multiple counts of aggravated sexual assault and 
3 A-2132-15T4

endangering the welfare of a child. The BOE's attorney stated that 

the Essex County Prosecutor's Office (ECPO) had advised the BOE 

that the charges were based on allegations that Dufault had engaged 

in sexual acts with multiple male students. After it was informed 

of the indictment, the BOE suspended Dufault without pay. 

Dufault testified that the last day she worked as a teacher 

in the South Orange and Maplewood school district was September 

15, 2014. When questioned by the appeals examiner about the 

charges, Dufault invoked her Fifth Amendment privilege against 

self-incrimination and refused to answer any additional questions. 

The appeals examiner issued a decision on April 30, 2015. The 

examiner found that Dufault was disqualified from benefits 

pursuant to N.J.S.A. 43:21-5(b) because she had been discharged 

for gross misconduct connected with the work. The examiner noted 

that Dufault had been charged with multiple offenses that were 

punishable as crimes of the first, second, third, or fourth degree

under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 

104-9.

Dufault appealed the Appeal Tribunal's determination to the 

Board, which issued a decision on September 15, 2015. The Board 

remanded the matter to the Appeal Tribunal for another hearing. 

In its decision, the Board stated that additional testimony from 

Dufault and the employer was required with regard to whether 
4 A-2132-15T4

Dufault was guilty of the charges for which she had been suspended

and later discharged. In its decision, the Board stated that the 

Appeal Tribunal should advise Dufault of "her responsibility to 

move the appeal, and of the consequences for her failure to do 

so."

The Appeal Tribunal conducted the second hearing on October 

6, 2015. At the hearing, the BOE's attorney noted that the ECPO 

was handling Dufault's criminal case and he was unaware of the 

status of the matter. He also stated that Dufault had resigned 

from her position in the school district as of July 21, 2015, 

pursuant to a settlement agreement between Dufault and the BOE.

The settlement agreement states in pertinent part that 

Dufault "wishes to irrevocably resign" her position, as of July 

21, 2015. The BOE's attorney indicated that he did not know if 

the BOE would have proceeded with the termination charges if 

Dufault had not resigned. He also said he did not know if Dufault

would have been fired if she was completely exonerated on all of 

the criminal charges. 

The appeals examiner asked Dufault if she was guilty of the 

charges. Dufault again asserted her Fifth Amendment privilege 

against self-incrimination and refused to answer the question. The 

appeals examiner told Dufault that if she was not going to answer 

the question, he could draw an adverse inference from her refusal 
5 A-2132-15T4

to testify. Dufault conceded, however, that she had resigned her 

position with the school district. She stated that her attorney 

told her she was going to be discharged, but she acknowledged that 

the BOE did not tell her she was going to be terminated. Dufault

said the criminal charges were pending, but they were allegations. 

Dufault's attorney noted that in the settlement agreement, 

the BOE had agreed it would not take any adverse action regarding 

Dufault's claim for unemployment benefits. The BOE's attorney 

stated, however, that the BOE was merely participating in the 

hearing. He said the BOE was not taking any adverse action 

regarding her claim. 

The appeals examiner issued a decision on October 8, 2015. 

The examiner found that Dufault was disqualified for benefits

pursuant to N.J.S.A. 43:21-5(a) and (b). Dufault appealed the 

Appeal Tribunal's decision to the Board, and the Board issued a 

decision on December 17, 2015, affirming the Tribunal's decision. 

The Board found that Dufault was disqualified for benefits 

as of July 19, 2015, pursuant to N.J.S.A. 43:21-5(a) because she 

left her position for personal reasons, not for reasons connected 

with the work. The Board found that the BOE never told Dufault she 

would be fired if she did not resign. The Board determined that 

the BOE did not terminate Dufault. She chose to resign. The Board 

decided that because Dufault voluntarily left her position without 
6 A-2132-15T4

good cause attributable to the work, she was disqualified from 

receiving benefits.

The Board also found that Dufault was disqualified from 

benefits as of February 22, 2015, pursuant to N.J.S.A. 43:21-5(b) 

because she was discharged for gross misconduct connected with the 

work. The Board noted that Dufault had been charged with offenses 

that were punishable as first, second, third, or fourth-degree 

crimes under the Code of Criminal Justice. She had invoked her 

right against self-incrimination and refused to answer questions 

regarding the charges. 

The Board stated that a negative inference could be drawn 

from Dufault's refusal to testify about the charges. The Board 

observed that if Dufault was not guilty, there was no reason for 

her to refuse to answer questions about the charges. The Board 

wrote, "The only reasonable explanation for the claimant's refusal 

to provide a response to the Appeal Tribunal's question is that 

she is, in fact, guilty of the charges on which she has been 

indicted. No other conclusion is logical or credible." This appeal 

followed.

On appeal, Dufault argues: (1) the BOE did not prove that she 

had been terminated for gross misconduct; (2) she should receive 

unemployment benefits because her claim was not decided 
7 A-2132-15T4

expeditiously; and (3) the BOE should be bound by the terms of the 

settlement agreement. 

The scope of our review in an appeal from a final 

determination of an administrative agency is strictly limited. 

Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Pub.

Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 

103 (1985)). The agency's decision may not be disturbed unless 

shown to be arbitrary, capricious or unreasonable. Ibid. (citing 

In re Warren, 117 N.J. 295, 296 (1989)). 

We can only intervene "'in those rare circumstances in which 

an agency action is clearly inconsistent with its statutory mission 

or with other State policy.'" Ibid. (quoting George Harms Constr. 

Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Furthermore, "[i]n 

reviewing the factual findings made in an unemployment 

compensation proceeding, 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. (quoting 

Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 

1985)). 

Here, the Board found that Dufault was disqualified from 

unemployment compensation benefits under N.J.S.A. 43:21-5(a), 

which provides that an individual may not receive benefits if the 
8 A-2132-15T4

individual "left work voluntarily without good cause attributable 

to such work[.]" Although the statute does not define the term 

"good cause," it has been construed to mean "cause sufficient to 

justify an employee's voluntarily leaving the ranks of the employed 

and joining the ranks of the unemployed." Domenico v. Bd. of 

Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo 

v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). 

There is sufficient credible evidence in the record to support 

the Board's finding that Dufault resigned her job voluntarily, 

without good cause attributable to the work. She conceded that she 

resigned her position in accordance with the settlement she reached 

with the BOE. There is no evidence that the BOE had threatened to 

terminate Dufault. On appeal, Dufault does not argue that she 

resigned her position for good cause attributable to the work.

Rather, Dufault argues that she is entitled to benefits 

because the BOE agreed it would not take any adverse action with 

regard to her claim for unemployment compensation benefits. We 

disagree. As the record shows, the BOE participated in both 

hearings. At the second hearing, the BOE's attorney provided the 

appeals examiner with information about Dufault's pending criminal 

charges and her resignation. The BOE did not, however, take any

adverse position regarding the claim. 
9 A-2132-15T4

 Although the BOE agreed it would not take any action adverse 

to Dufault's claim, that agreement does not require the Board to 

grant Dufault's application for unemployment benefits. The Board 

was obligated to make its decision regarding her claim in 

accordance with the facts and the applicable law, regardless of 

any position the BOE may or may not take regarding the claim. 

Based on the testimony presented at the hearing, the Board 

determined that Dufault was disqualified for benefits pursuant to 

N.J.S.A. 43:21-5(a) because she resigned her position voluntarily, 

without good cause attributable to the work, and pursuant to 

N.J.S.A. 43:21-5(b) because she was suspended and discharged for 

gross misconduct connected with the work. There is sufficient 

credible evidence in the record to support those findings. 

Dufault also argues that the Board erred by finding that she 

was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b)

because she was discharged for gross misconduct in connection with 

the work. She argues that the BOE had the burden of proving that 

she was suspended or discharged for gross misconduct connected 

with the work, as required by N.J.A.C. 12:17-10.1(f). 

Dufault contends that the only proof of her alleged gross 

misconduct was the hearsay statements of the BOE's attorney.

Dufault contends that an administrative decision may not be based 
10 A-2132-15T4

solely upon hearsay, and under N.J.A.C. 15:1-15.5(b), each finding 

of fact must be supported by "some legally competent evidence." 

We are not persuaded by these arguments. Dufault did not 

dispute that she had been indicted and charged with multiple 

criminal offenses. Dufault was charged with engaging in sex acts 

with students at her school. On appeal, Dufault concedes that if 

she engaged in such conduct that would constitute gross misconduct 

in connection with her work. 

As noted previously, at the hearings before the Appeal 

Tribunal, Dufault asserted her Fifth Amendment right against selfincrimination and refused to answer any questions regarding the 

charges. Under the circumstances, the Board had the discretion to 

draw an adverse inference that she had, in fact, engaged in the 

criminal conduct for which she has been charged. 

When, as in this matter, a party in a civil matter asserts 

the privilege against self-incrimination, the fact-finder may draw 

an adverse inference of guilt. Attor v. Attor, 384 N.J. Super.

154, 165-66 (App. Div. 2006) (citing Mahne v. Mahne, 66 N.J. 53, 

66 (1974)). See also Bastas v. Bd. of Review, 155 N.J. Super. 312, 

315 (App. Div. 1978) (holding that the Board could draw an adverse 

inference where claimant for unemployment benefits asserted Fifth 

Amendment privilege and refused to testify on facts related to the 

claimant's qualification for benefits); Duratron Corp. v. Republic 
11 A-2132-15T4

Stuyvesant Corp., 95 N.J. Super. 527, 531-32 (App. Div.)

(concluding that in a civil action, the court may draw an adverse 

inference when a litigant invokes the Fifth Amendment and refuses 

to testify concerning a matter within his or her personal 

knowledge), certif. denied, 50 N.J. 404 (1967); SEC v. Greystone 

Nash, Inc., 25 F.3d 187, 190 (3rd Cir. 1994) (noting that "reliance 

on the Fifth Amendment in civil cases may give rise to an adverse 

inference against the party claiming its benefits") (citing Baxter 

v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed.

2d 810, 821 (1976)). 

Dufault further argues that the Board's decision should be 

reversed because the Appeal Tribunal did not process her appeals 

expeditiously, as required by N.J.S.A. 43:21-5(b). This argument 

is entirely without merit. The record shows that the Appeal 

Tribunal processed the appeals in an expeditious manner. Moreover, 

N.J.S.A. 43:21-5(b) does not provide that a claimant is entitled 

to benefits if an appeal is not processed in the manner required 

by the statute.

Affirmed.