CUSTIN v. WIRTHS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOHN M. CUSTIN,

Plaintiff,

v. Civ. No. 2:12-cv-910-KM-MAH

HAROLD J. WIRTHS, JOSEPH SIEBER,

GERALD YARBROUGH, JERALD L. OPINION

MADDOW, et al.,

Defendants.

MCNULTY, U.S.D.J.:

The plaintiff, John M. Custin, alleges that various New Jersey state

officials deprived him of his constitutional right to due process in the course of

denying his claims for unemployment benefits. Defendant Harold J. Wirths was

the Commissioner of the New Jersey Department of Labor, and Defendants

Joseph Sieber, Gerald Yarbrough, and Jerald Maddow were members of the

Board of Review for unemployment claims. These defendants, represented by

the New Jersey Attorney General’s office, collectively move for summary

judgment as to the remaining claims against them.

In two previous opinions on this matter, I dismissed several claims

against these defendants as well as against other parties. (DE 82, 130).

Familiarity with those prior opinions is assumed. This motion for summary

judgment addresses all remaining due process claims. The accompanying order

invites the parties to identify any issue which they believe remains open and

undecided.

Defendants contend that Custin has not raised a triable issue of fact that

would demonstrate his due process rights were violated in the course of any of

his claims for unemployment benefits. For the reasons herein, Defendants’

motion will be granted.

I. Background1

Plaintiff John M. Custin filed a lawsuit alleging a variety of harms

relating to denial of his multiple claims for unemployment benefits. (DSMF ¶ 1).

The remaining Defendants are Harold Wirths, Joseph Sieber, Gerald

Yarbrough, and Jerald Maddow (the “State Defendants”). (DSMF ¶ 6). The suit

was filed against a number of federal and state officials, but the only remaining

claim is one under 42 U.S.C. § 1983 against the State Defendants in their

individual capacities. (DSMF ¶¶ 2, 6)). Defendant Wirths was the Commissioner

of the New Jersey Department of Labor, and Defendants Sieber, Yarbrough,

and Maddow were members of the Board of Review for unemployment claims.

(DSMF ¶ 8).

Custin was discharged from employment at Wal-Mart on April 26, 2010.

(DSMF ¶ 12). Thereafter, he filed a claim for unemployment benefits with the

New Jersey Department of Labor, Division of Unemployment Insurance. (Id.).

Initially, a Deputy Director of the Division of Unemployment Insurance deemed

Custin eligible for unemployment benefits. (DSMF ¶ 13). However, Wal-Mart

appealed this determination to the Appeal Tribunal. (DSMF ¶ 14). The Appeal

Tribunal is the first appellate level within the New Jersey Department of Labor

1 For purposes of this motion, I consider the State Defendants’ statement of

material facts (“DSMF”) (DE 233), Plaintiff SSC’s responsive statement of material facts

(“PRSMF”) (DE 245), Plaintiff’s separately numbered counter statement of facts

(“CSMF”) (DE 245), as well as documentary evidence. Facts not contested are assumed

to be true.

Record items cited repeatedly will be abbreviated as follows:

AT Transcript= Transcript from Appeal Tribunal hearing on June 28, 2010 (DE

233-11)

AG Cert. = Certification of Rimma Razhba (counsel for State Defendants) (DE

233-5)

Pl. Opp. = Plaintiff John M. Custin’s brief in opposition to State Defendants’

motion (DE 244)

for deciding unemployment and temporary disability benefit disputes. (DSMF ¶

8).

Custin received a notice scheduling the appeal for a telephone hearing on

June 28, 2010. (DSMF ¶ 15). This notice specified two charges: “voluntary

leaving” and “discharge for misconduct.”2 (Id.). During that hearing on June

28, 2010, a hearing officer heard testimony from Custin and a personnel

manager from Wal-Mart, Beverly Shuck.3 Custin was given an opportunity to

cross-examine Shuck during the hearing. (DSMF ¶ 17). The hearing officer

explained that the issues to be resolved were “voluntary leaving” and “discharge

for misconduct.” (DSMF ¶ 18). Shuck testified that Custin was terminated for

being a “no call no show” for five consecutive days on which he was scheduled

2 The applicable statute, effective as of the time of Custin’s application for

benefits, reads in relevant part as follows:

An individual shall be disqualified for benefits:

(a) For the week in which the individual has left work voluntarily without good

cause attributable to such work, and for each week thereafter until the

individual becomes reemployed and works four weeks in employment, which

may include employment for the federal government, and has earned in

employment at least six times the individual's weekly benefit rate, as

determined in each case. This subsection shall apply to any individual seeking

unemployment benefits on the basis of employment in the production and

harvesting of agricultural crops, including any individual who was employed in

the production and harvesting of agricultural crops on a contract basis and who

has refused an offer of continuing work with that employer following the

completion of the minimum period of work required to fulfill the contract.

(b) For the week in which the individual has been suspended or discharged for

misconduct connected with the work, and for the five weeks which immediately

follow that week, as determined in each case. In the event the discharge should

be rescinded by the employer voluntarily or as a result of mediation or

arbitration, this subsection (b) shall not apply, provided, however, an individual

who is restored to employment with back pay shall return any benefits received

under this chapter for any week of unemployment for which the individual is

subsequently compensated by the employer.

N.J. Stat. Ann. § 43:21-5 (eff. December 9, 2007 to June 30, 2010).

3 Custin refers to this individual as “Shupp” or “Schupp,” but her name is listed

in the Appeal Tribunal transcript and Defendants’ briefing as “Shuck.”

to work: April 17, 19, 21, 22, and 23, 2010.4 (DSMF ¶ 19). She explained that

Wal-Mart’s policy required employees to call a designated number prior to the

start of their scheduled shift if they anticipated being absent. (DSMF ¶ 20).

Custin testified that he was aware of this call-out procedure. (DSMF ¶ 23). In

his testimony, Custin admitted that that he did not report to work on April 17,

19, 21, 22, and 23, 2010. (DSMF ¶ 22). Further, he testified that he had used

these call-out procedures successfully in the past without issue. (DSMF ¶ 28).

His defense of his actions was that he attempted to call the designated

number on each of the five days but was unable to connect. (DSMF ¶ 24). He

also attempted to call the store at which he worked, he said, but no one picked

up there, either. (DSMF ¶ 25). He could not provide any telephone records or

other verification of his attempts to call the store or the designated number.

(DSMF ¶ 26). When asked about his failure to successfully call out, Custin

replied that he thought he did as much as he had to do. (DSMF ¶ 29). In

response to his contention that the phone system was not working, Shuck

responded that no other employee had reported issues with the system “that

day.”5 (AT Transcript at 20). The examiner also referred to two documents sent

to her by Wal-Mart: an exit interview with Plaintiff and his attendance record.

(DSMF ¶ 31). While Custin did not, evidently, receive copies of these

4 Custin states that he is in no position to verify Shuck’s testimony. I take him to

be referring to the truth, or not, of her statements. A transcript of the testimony itself

was attached as Exhibit F to the Defendants’ motion for summary judgment. It does

not seem to be disputed that Shuck testified.

5 There is a potential ambiguity as to “that day.” State Defendants claim that

Shuck testified that there were no other issues reported “on each of those days.”

(DSMF ¶ 30). That is inaccurate; Shuck testified that the phone was working on one

day in particular, later stating that she “just printed out the list from that day and

there are nine people called out and would be tardy.” (AT Transcript at 27). It is not

clear which day she is referring to, and Plaintiff claims “that day” is in fact April 26,

2010—the day he was terminated. (PRSMF ¶ 42). However, Shuck also testified that

“[w]e had no other problems and we did have other absences that day,” which in

context is referring to April 23, 2010, the day she allegedly called Custin to ask why he

had not called out. (AT Transcript at 19-20).

documents prior to the hearing, he did not raise any issues regarding them at

the time. (DSMF ¶ 31; PRSMF ¶ 32).

On July 6, 2010, the Appeal Tribunal issued a decision disqualifying

Custin from unemployment benefits. (DSMF ¶ 33). The Tribunal found that

Custin did not properly notify his employer of his absence for five consecutive

work days, despite his awareness of the notification requirement. (DSMF ¶ 34).

Custin appealed the decision to the Board of Review, which is the highest

appellate level within the New Jersey Department of Labor for deciding

unemployment and temporary disability benefit disputes. (DSMF ¶¶ 8, 35). The

Board of Review consisted of Defendants Sieber, Yarbrough, and Maddow (the

“Board of Review Defendants”). (DSMF ¶ 35). In a decision dated February 4,

2011, the Board of Review affirmed the decision of the Appeal Tribunal.6 (Id.)

Custin then appealed the Board of Review’s decision to the Superior

Court of New Jersey, Appellate Division. (DSMF ¶ 36). The Appellate Division

affirmed the Board of Review’s decision. (Id.).

Second Claim

On or about December 4, 2011, Custin filed a claim for extended

benefits. (DSMF ¶ 61). This claim was denied, and he appealed the decision to

the Appeal Tribunal on December 21, 2011. (DSMF ¶ 62). On February 23,

2012, Custin participated in a telephone hearing with an examiner from the

Appeal Tribunal. (Id.). The next day, the Appeal Tribunal affirmed the decision

and deemed Plaintiff ineligible for extended benefits because he had not earned

any wages after the effective date of his disqualification for regular benefits.7

(DSMF ¶ 63).

6 Custin claims to dispute this fact, but not in the sense that he denies that the

Board of Review affirmed the Appeal Tribunal’s decision. Rather, he makes the point

that “[t]he Board of Review had no authority to find on an incomplete and insufficient

record.” (PRSMF ¶ 35).

7 Custin admits this, but notes that the decision of the Appeal Tribunal rested on

“monetary grounds” while the denial by the examiner on the second claim cited what

he describes as “separation grounds.” (PRSMF ¶ 63).

Custin appealed this decision to the Board of Review, which remanded

the case to the Appeal Tribunal for additional testimony regarding monies

Custin received in 2011 (i.e., wage income that could provide a basis for

extended benefits). (DSMF ¶ 64). The Appeal Tribunal held another hearing on

September 12, 2012, during which Custin noted that he received a payment of

$13,000 from Wal-Mart for the settlement of a discrimination lawsuit he filed at

some point after his discharge. (DSMF ¶ 65).

The Appeal Tribunal again deemed Custin ineligible for extended

benefits. The $13,000 settlement payment, it held, did not constitute wages,

and Plaintiff did not perform any services for Wal-Mart after his April 26, 2010

discharge. (DSMF ¶ 66). He did not appeal this decision to the Board of

Review.8 (DSMF ¶ 67).

Third Claim

Custin filed another unemployment claim on March 11, 2012. (DSMF ¶

72). Custin disputes many of the circumstances regarding this claim and

whether he properly received notice of it, but ultimately the Appeal Tribunal

held a hearing on August 29, 2012. (DSMF ¶ 75). In a decision dated August

30, 2012, the Appeal Tribunal affirmed Custin’s ineligibility for benefits. (DSMF

¶ 78). He did not appeal this decision to the Board of Review. (DSMF ¶79).

Fourth Claim

Custin filed another unemployment claim on December 30, 2012. (DSMF

¶ 82). He was deemed ineligible for benefits “on the ground that he lacked

sufficient base weeks or sufficient base year wages to establish a valid claim.”

(DSMF ¶ 83). He appealed this determination to the Appeal Tribunal, which

held a hearing on March 15, 2013. (DSMF ¶ 84). The Appeal Tribunal affirmed

the denial of benefits. (DSMF ¶ 85). Custin did not appeal this decision to the

Board of Review. (DSMF ¶ 90).

8 Custin disputes this fact without an explanation. He does not appear to be

asserting that he did in fact appeal the decision. (PRSMF ¶ 67). Rather, he seems to

object to the Defendants’ characterizations of, e.g., his reasons for not appealing.

(PRSMF ¶¶79, 90).

I. Legal Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).

In deciding a motion for summary judgment, a court must construe all facts

and inferences in the light most favorable to the nonmoving party. See Boyle v.

Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears

the burden of establishing that no genuine issue of material fact remains. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an

issue on which the nonmoving party bears the burden of proof ... the burden

on the moving party may be discharged by ‘showing’—that is, pointing out to

the district court—that there is an absence of evidence to support the

nonmoving party’s case.” Celotex, 477 U.S. at 325.

Once the moving party has met the threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). The opposing party must present actual evidence that

creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at

248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which the

nonmoving party must rely to support its assertion that genuine issues of

material fact exist). In deciding a motion for summary judgment, the court’s

role is not to evaluate and decide the truth of the matter, but to determine

whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.

Credibility determinations are the province of the fact finder. Big Apple BMW,

Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). The summary

judgment standard, however, does not operate in a vacuum. “[I]n ruling on a

motion for summary judgment, the judge must view the evidence presented

through the prism of the substantive evidentiary burden.” Anderson, 477 U.S.

at 254.

II. Discussion

Custin raises due process issues with respect to his first, second, third,

and fourth claims for unemployment benefits. The first claim for unemployment

benefits arose from Custin’s dismissal on April 26, 2010. As to that claim, the

main issue was whether he had essentially been absent without leave for five

days. The second, third, and fourth claims sought extended benefits. As to

those, the main issue was whether, in the relevant period, Custin had earned

wages, a prerequisite for an award of benefits.

In Section A, I consider Custin’s due process claim with respect to the

second, third, and fourth claims for unemployment benefits. In Section B, I

consider his due process claim with respect to the original, first claim for

benefits. Sections C and D dispose of miscellaneous issues.

A. Due Process Violations: Second, Third, and Fourth Claims

“Procedural due process imposes constraints on governmental decisions

which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning

of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). Unemployment benefits are considered to

be property interests. See Wilkinson v. Abrams, 627 F. 2d 650, 664 (3d Cir.

1980) (“State statutes providing for the payment of unemployment

compensation benefits create in the claimants for those benefits property

interests protected by due process.”).

“In order to state a claim for failure to provide due process, a plaintiff

must have taken advantage of the processes that are available to him or her,

unless those processes are unavailable or patently inadequate.” Alvin v. Suzuki,

227 F. 3d 107, 116 (3d Cir. 2000). Available processes need not be followed

when they are futile. See id. at 118 (“When access to procedure is absolutely

blocked or there is evidence that the procedures are a sham, the plaintiff need

not pursue them to state a due process claim.”). A plaintiff “cannot forego

attempting to use those processes simply because he thinks that they will be

followed in a biased manner.” Id. at 119. “This is true even when the plaintiff

contends that one part of the process afforded him was biased, so long as there

were avenues of review available to him.” Persico v. City of Jersey City, 67 F.

App’x 669, 675 (3d Cir. 2003).

For example, in Alvin, the plaintiff alleged that a public university failed

to provide him due process in depriving him work-related privileges. The

plaintiff argued that, based on his experience with the university, he believed

the grievance process would be constitutionally inadequate. Id. at 118. Indeed,

“[t]he record support[ed] his argument that the informal proceedings were

painfully slow, and that several letters he wrote were not responded to, and

even that several members of the [university] faculty and administration were

disposed against his claim.” Id. at 119. Still, the Third Circuit found that there

was “simply insufficient evidence that the formal hearing would not be held in

a fair and impartial manner.” Id.

This court has previously outlined the applicable process for

unemployment claims:

New Jersey has a “process on the books that appears to

provide due process of which Plaintiff simply failed to avail himself.

Under the [New Jersey Unemployment Compensation Act, N.J.S.A.

43:21-19(c)(1)], a claimant who is dissatisfied with a determination

of benefits eligibility is entitled to file an administrative appeal to

an Appeal Tribunal, before which tribunal the claimant may be

represented by counsel and may cross-examine witnesses. N.J.S.A.

43:21–6(b)(1), 43:21–17(b). The decision of the Appeal Tribunal is,

in turn, appealable to the Board of Review, N.J.S.A. 43:21–6(e),

and the final decision as to a claimant's entitlement to benefits is

appealable to the Appellate Division under N.J. Ct. R. 2:2–3(a)(2).

Akuma v. New Jersey Comm’r of the Dep’t of Labor and Workforce Dev., No. 07-

1058, 2008 WL 4308229, at *2 (D.N.J. Sept. 17, 2008) (quotation omitted).

Plaintiff did not take proper advantage of this appeals process for his

second, third, and fourth claims, however; in the words of Alvin, he has not

“taken advantage of the processes that are available to him . . . .” 227 F. 3d at

116. As noted above, Custin did not pursue the third and fourth claims beyond

the Appeal Tribunal at all. Interestingly, as to the second claim, he did pursue

further administrative appeals, obtained a remand and a new decision, but

then went no farther than the Appeal Tribunal. See pp. 5–6, supra. So even

assuming there was error at some stage of the process, his failure to pursue

the available means of correction generally cuts off a due process claim.

Still, a plaintiff may retain a due process claim if the forgone processes

“are unavailable or patently inadequate.” Id. No claim of “unavailability” can be

sustained here. In fact, Custin appealed his first claim all the way to the

Appellate Division, and took his second claim up and down the administrative

appeal ladder. There is no showing that, as to the second, third, and fourth

claims, his access to the appeals process was “blocked.” The claim, then, must

be that the processes were “inadequate”— in effect, a “sham.” Id. at 117–18.

I construe Plaintiff’s materials liberally given his pro se status. In

Custin’s briefing and responsive statement of undisputed material facts, he

makes the following claims regarding the efficacy of the appellate process for

his second, third, and fourth claims:

1. He was not notified of the legal basis for his initial disqualification for

the second claim in advance of his hearing with the Appeal Tribunal,

and therefore could not prepare an adequate defense. (PRSMF ¶ 62).

2. The affirmation by the Appeal Tribunal for the second claim was

based on different legal grounds than the grounds stated in the initial

notice of ineligibility. (PRSMF ¶ 63).

3. After the second claim had been appealed to the Board of Review and

remanded to the Appeal Tribunal for additional testimony, the

decision of the Appeal Tribunal denying the claim stated no New

Jersey law that the $13,000 he received should not qualify as wages.

(PRSMF ¶ 66).

4. Denial of the second claim meant that he was being disqualified twice

on the same charge. (PRSMF ¶ 68).

5. The damaging effect of the loss of benefits due to the denial of the

second claim was disproportionate to the “purported offense” of not

calling in to Wal-Mart. (PRSMF ¶ 68).

6. The result of denial of the second claim was an unfair application of

law. (PRSMF ¶ 70).

7. He was not properly notified of the date and time of the initial hearing

for his third claim. (PRSMF ¶ 74).

8. The decision by the Appeal Tribunal affirming denial of his third claim

was arbitrary and did not state any New Jersey law that the $13,000

he received should not qualify as wages. (PRSMF ¶ 78).

9. He “was given every reason to believe from the experience with his

claims that state agencies such as the [New Jersey Department of

Labor] and its administrative proceedings and Boards were blind to

offenses to constitutional due process of law.” (PRSMF ¶ 79).

10. The “Notice to Claimant of Benefit Determination” regarding his

fourth claim showed the wrong base year periods. (PRSMF ¶ 83).

11. During the Appeal Tribunal hearing for his fourth claim, the

examiner failed to ask questions that would have confronted the issue

of whether the $13,000 he received should qualify as wages. (PRSMF

¶ 84).

12. The decision by the Appeal Tribunal affirming denial of his fourth

claim was arbitrary and did not state any basis under New Jersey law

that the $13,000 he received should not qualify as wages. (PRSMF ¶

78).

Legal or factual errors allegedly made by various Appeal Tribunals or

other officials do not equate to a finding that the appeals process itself was

faulty. For example, Custin has not shown that the Board of Review failed to

give him the opportunity to appeal or present his case. Even less pertinent is

Plaintiff’s oft-expressed feeling that the Board of Review or the courts would

have issued an incorrect decision if the matter were presented to them.

Even on their face, Plaintiff’s claims tend to defeat themselves. The

second claim, for example, relates that the Board of Review responded

favorably to his proffer of additional evidence and remanded the case. After the

Appeal Tribunal had initially affirmed denial of the claim, Custin sent a letter

to the Board of Review requesting that they remand his case to the Appeal

Tribunal. (CSMF ¶ 217). He attached to this letter a copy of a W2 form he had

recently received from Wal-Mart, which, to him, showed that the Appeal

Tribunal erred in concluding he had not received wages in the relevant period.

(Id.). In response, the Board of Review remanded the case for further fact

finding on this issue. (CSMF ¶ 221). An Appeal Tribunal hearing then in fact

occurred on September 12, 2012. (CSMF ¶ 225). Plaintiff chose not to appeal

this decision to the Board of Review, but there is no dispute that he was able to

participate in the appeals process. This was anything but a sham.

Issue seven above is the only point that approaches a demonstration of a

defect in the actual process of appeal. Custin claims that he was not properly

given notice of a March 26, 2012 hearing on the “monetary” issue. (CSMF ¶¶

242-246).9 Plaintiff did receive a hearing before the Appeal Tribunal on August

29, 2012. (PRSMF ¶ 75). Custin’s grievance, not always clearly expressed,

seems to be that this appeal was irregular because it concerned the “monetary”

hearing of which he had not received proper notice. (CSMF ¶ 257). If that was a

procedural error, it should have been asserted as such. It was surely

correctable within the procedures made available to Custin. There is no reason

why he could not have raised this issue to the Board of Review, or, if necessary,

the Appellate Division. Plaintiff knew that the Board, faced by claims of

procedural error or additional evidence, had been willing to remand to the

Appeal Tribunal previously.

9 He states that he was only notified of a separate hearing on another issue, the

“separation” issue, scheduled for March 29, 2012. The March 29, 2012 hearing

apparently did not take place, for reasons that appear of record. Custin received a

letter from an “ETA Region 1 Administrator” explaining that the determination that he

did not receive wages, and was therefore monetarily ineligible, rendered the March 29,

2012 fact-finding interview on the separation issue unnecessary. (CSMF ¶ 245).

Plaintiff stated that he did not appeal his third claim to the Board of

Review because “now it’s headed for the U.S. Courts and not the State Courts,

which apparently, don’t do anything in regard to insuring due process of law at

its proceedings.” (DSMF ¶ 79; PRSMF ¶ 79). The choice to abandon state

remedies in favor of a federal lawsuit was Custin’s. Nothing in this statement,

however, establishes that state remedies were unavailable or illusory, even if

Custin was dissatisfied with the results he was getting.

Having reviewed Plaintiff’s statement of facts and legal arguments, I see

no evidence that the appeals process for his second, third, and fourth claims

was unconstitutionally inadequate. That being the case, because he did not

take advantage of the appeals process available to him, he cannot claim to have

been denied due process.

B. Due Process Violations: First Claim

Regarding his first claim for unemployment benefits, Custin did pursue

the available state procedures. That process culminated in an appeal to the

New Jersey Superior Court, Appellate Division, which affirmed the denial of

benefits. Thus as to the first claim, in contrast with the second, third, and

fourth claims, it is possible to make a more meaningful assessment of his claim

to have been denied due process.

“The essential requirements of due process . . . are notice and an

opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

546 (1985). Claimants are constitutionally obligated “the opportunity to be

heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S.

at 332. Further, due process “entitles a person to an impartial and

disinterested tribunal . . . .” Marshall v. Jericho, 446 U.S. 238, 242 (1980).

Custin has not provided, nor can I discover, any authority in this circuit that

defines the process constitutionally required in connection with a denial of

unemployment benefits. However, the Third Circuit has provided guidance in

somewhat analogous contexts.

One such context is review of local zoning board decisions. See, e.g.,

Koynock v. Lloyd, 405 F. App’x 679 (3d Cir. 2011); DeBlasio v. Zoning Bd. of

Adjustment for Twp. of West Amwell, 53 F. 3d 592 (3d Cir. 1995); Rogin v.

Bensalem Twp., 616 F. 2d 680 (3d Cir. 1980). No process, of course, is free

from error, and zoning board decisions are no exception. In DeBlasio, however,

the Third Circuit held that “a state provides constitutionally adequate

procedural due process when it provides reasonable remedies to rectify a legal

error by a local administrative body.” 53 F. 3d at 597.

Another analogous context is review of public employee terminations.

See, e.g., Beckwith v. Pennsylvania State Univ., 672 F. App’x 194 (3d Cir. 2016);

Thomas v. Delaware State Univ., 626 F. App’x 384 (3d Cir. 2015); Biliski v. Red

Clay Consol. School Dist. Bd of Educ., 574 F. 3d 214 (3d Cir. 2009). In Biliski,

the Third Circuit echoed the Supreme Court’s holding that “[t]he tenured

public employee is entitled to oral or written notice of the charges against him,

an explanation of the employer’s evidence, and an opportunity to present his

side of the story.” 574 F. 3d at 220 (quoting Loudermill, 470 U.S. at 546).

Finally, the Third Circuit has also addressed the question of when error

by a state administrative body may be attacked as a due process violation. In a

recent case, the plaintiff complained that the Director of the Division of Family

Development overrode a favorable decision by an administrative law judge

without evidentiary support. Brown v. Camden Cnty. Bd. of Soc. Servs., 704 F.

App’x 204, 206 (3d Cir. 2017)10. The court noted that the plaintiff (like Custin)

had the option to seek review of the administrative decision by the New Jersey

Appellate Division. The availability of that recourse for correction of error

negated a due process claim, as “[t]he judicial remedy provided is no doubt

adequate.” Id. at 207.

Custin outlines a wide array of perceived procedural defects in the

adjudication of his first claim, many of which are summarized below:

10 The Third Circuit designated Brown as a nonprecedential decision. It is cited for

its persuasive value.

1. The Appeal Tribunal wrongly allowed Wal-Mart to appeal the default

judgment in his favor after Wal-Mart declined to respond to the claim

examiner’s questions. (CSMF ¶ 23).

2. The Appeal Tribunal allowed Wal-Mart to file an appeal despite its

faxing in the request a day late. (CSMF ¶ 34).

3. He was never provided with the documents Wal-Mart intended to use

as evidence against him during the Appeal Tribunal Hearing, some of

which were faxed in advance to the Appeal Tribunals. (CSMF ¶ 1).

4. The notice for his initial claims hearing, while indicating that he “may

have been discharged for misconduct connected to the work” did not

indicate “what entity or individual was making this charge.” (CSMF ¶¶

14, 15).

5. He never received a copy of Wal-Mart’s protest letter which led to the

Appeal Tribunal hearing. (CSMF ¶ 29).

6. He did not receive notice that a witness would testify against him at

the Appeal Tribunal hearing. (CSMF ¶ 29).

7. One of the two issues docketed to be determined at the Appeal

Tribunal hearing was whether the claim could be denied for

“misconduct connected to the work,” despite default judgment having

been entered on that issue. (CSMF ¶ 36).

8. The issues docketed for the Appeal Tribunal hearing were so broad in

scope that he could not prepare an adequate defense. (CSMF ¶ 43).

9. The Appeal Tribunal did not give him information on how to seek to

dismiss the issue of “voluntary leaving” on appeal. (CSMF ¶¶ 52-59).

10. Wal-Mart provided a different witness at the hearing than the

person they indicated would be testifying in their protest letter to the

Appeal Tribunal. (PRSMF ¶ 17).

11. The Appeal Tribunal should never have considered the “callout list”

that Shuck printed out during the hearing. (CSMF ¶ 81).

12. His attendance record and exit interview were never entered into

the record by the Appeal Tribunal. (CSMF ¶¶ 89-90).

13. The Board of Review submitted a review of his appeal to “an

unknown deputy ‘reviewer,’” thereby delegating a task reserved for

Board of Review members to someone “not meeting the civil service

requirements for a Board member.” (CSMF ¶¶ 92-94).

14. The unknown reviewer for the Board of Review failed to detect the

errors in the Appeal Tribunal record. (CSMF ¶ 95).

15. Shuck’s testimony was insufficient for any reviewer to conclude

that Wal-Mart’s call-out system was functional, since it was

ambiguous which day she was referring to when she stated others

had no problems calling in. (CSMF ¶ 132).

Despite this lengthy list of putative procedural defects, Custin still has

not shown that he was denied due process. Analyzing his case under general

principles of due process and the analogous cases cited above, I find that he

was given notice and an opportunity to respond prior to the denial of his

benefits. He was given an explanation of the evidence against him and an

opportunity to present his side of the story. He was afforded the opportunity to

cross-examine Shuck, the witness who testified on behalf of his employer. He

was also given, and took advantage of, the remedy of full judicial review to

rectify possible errors by an administrative body.

Nowhere does Custin claim that he was denied participation in the

administrative process or an opportunity to present his case. Following his

appeal of the Board of Review’s decision, the New Jersey Appellate Division

analyzed his original claim as well as potential procedural defects in its

adjudication. The Appellate Division’s opinion considered the claim, reasserted

here, that certain documents were not entered into the record or provided in

advance of the hearing. It considered the claim that he was not on proper

notice of the issues being determined. In a reasoned decision, that court

rejected those claims. Notice, it found, had been given, the claim as to the

documents had not been preserved, and in any event the documents were far

from critical to his case. (AG Cert., Ex. H). However disappointing to the

plaintiff, this decision is not evidence of any procedural infirmity—quite the

opposite, in fact.

Moreover, many of Custin’s criticisms of the administrative process are

simply incorrect. He argues that there never should have been an Appeal

Tribunal appeal because Wal-Mart failed to respond to the initial request for

information. But employers may provide new information, even after an initial

determination. See N.J. Stat. Ann. § 43:21-6(b)(1).11 He also claims Wal-Mart’s

appeal should have been dismissed as untimely. But Wal-Mart appealed within

10 days from the day after the determination was mailed. (AG Cert., Ex. E at 2).

See N.J. Stat. Ann. § 43:21-6(b)(1) (appeal must be filed “within 10 calendar

days after such notification was mailed . . . .”).

To show that New Jersey’s process was insufficient, Custin cites to a

Tenth Circuit case concerning the Colorado unemployment benefits system.

The plaintiff in that case was denied unemployment benefits after a hearing at

which his employer testified. Shaw v. Valdez, 819 F. 2d 965, 968 (10th Cir.

1987). Prior to the hearing, the plaintiff had received only a simple notice

indicating the time and place of the hearing, as well as the fact that it would

discuss “[a]ll issues and factual matters affecting claimant’s eligibility . . . .” Id.

The Tenth Circuit concluded that this notice was insufficient, since the

claimant was caught unaware at the hearing as to the reasons for his

termination and the basis for denial of benefits. Id. at 969. This case is

11 The relevant section provides:

Whenever an initial determination is based upon information other than

that supplied by an employer because such employer failed to respond to

the deputy's request for information, such initial determination and any

subsequent determination thereunder shall be incontestable by the

noncomplying employer, as to any charges to his employer's account

because of benefits paid prior to the close of the calendar week following

the receipt of his reply. Such initial determination shall be altered if

necessary upon receipt of information from the employer, and any benefits

paid or payable with respect to weeks occurring subsequent to the close

of the calendar week following the receipt of the employer's reply shall be

paid in accordance with such altered initial determination.

N.J. Stat. Ann. § 43:21-6(b)(1) (emphasis added).

inapposite for several reasons. First, the plaintiff in Shaw argued that

Colorado’s statutory procedures were facially insufficient, not that individual

state actors deprived him of due process. Second, that plaintiff was not

claiming a due process violation, but the state’s failure to provide him a “fair

hearing” as required by the Social Security Act. Third, that plaintiff was

presented for the first time during the hearing with certain reasons for his

termination, having previously been given different reasons.

Here, although the record is not clear on what Custin was told by Wal-

Mart upon termination, he was fully aware that the Appeal Tribunal hearing

would encompass the issue of discharge related to misconduct.12 This charge

was sent to him in a letter and repeated at the beginning of the hearing.

(PRSMF ¶ 15; AT Transcript at 4-6). Custin cannot claim the same lack of

notice as the plaintiff in Shaw, despite his belief that the Appeal Tribunal

improperly docketed the issue of workplace misconduct.

The Appeal Tribunal process was less than ideal in some respects. The

documents faxed over by Wal-Mart prior to the hearing ought to have been

entered into the record and provided to Custin prior to the hearing. See

N.J.A.C. 1:12-14.6(d)13. But he has not shown that this error dragged the

12 Custin argues that Wal-Mart did not in fact assert the “misconduct” charge,

which somehow originated from the Appeal Tribunal itself. At any rate, that does not

negate the fact that he was given notice of the charges, as the Appellate Division

found. (AG Cert., Ex. H at 15).

13 The subsection reads as follows:

Any party that intends to offer documentary or physical evidence at the

telephone hearing shall submit a copy of that evidence to the Board of Review

or appeal tribunal and all other interested parties immediately upon receipt of

notice of the scheduled telephone hearing. Also, the requesting party shall

provide timely notice of this request to offer evidence to all other interested

parties.

1. Any evidence not submitted as required in this subsection may be

admitted at the discretion of the Board of Review or the appeal tribunal

provided that such evidence is submitted to the Board of Review or

appeal tribunal and all other parties within 24 hours of the telephone

hearing.

proceedings below the federal constitutional floor of due process. And indeed, it

is highly unlikely that these claimed errors even affected the outcome. The

documents were not necessary to deny his claim. His attendance record was

superfluous since he admitted he was absent for five consecutive work days.

The exit interview document, even if submitted belatedly, could only be

considered favorable to Custin’s case, and Shuck testified that the exit

interview reported him as re-hireable.14 Even the “call-out list” was not

evidence of his misconduct. It was merely additional evidence that Shuck used

to bolster her sworn testimony that others had successfully used the call-out

number, refuting Custin’s testimony that he attempted to call in for five days,

but the phone line malfunctioned.15 These alleged errors did not amount to an

overall unconstitutional deprivation of due process.

Ultimately, the critical evidence for and against Custin was amply

explored. He was aware of the policy that he needed to call in prior to missing a

scheduled shift. He failed to do so for five consecutive work days. Custin may

believe that his proffered excuses and defenses should have prevailed, but a

2. The other parties shall have 24 hours from the time of receipt of the

evidence to properly respond to its admission and use.

3. Upon review of the evidence, the Board of Review or the appeal

tribunal shall determine if the telephone hearing shall be continued.

N.J.A.C. § 1:12-14.6(d).

14 Custin claims that the Appeal Tribunal examiner used the exit interview to

corroborate Shuck’s testimony regarding the precise dates of his absence. (Pl. Opp. at

20-21). Even so, he did not then dispute those dates, nor does he dispute them now.

15 Custin cites a case from the Commonwealth Court of Pennsylvania finding a

lack of due process when the plaintiff was not able to examine documents that a

witness referred to in the course of a telephone hearing. (Pl. Opp. at 18-19). This state

court opinion is not binding precedent on this constitutional due process claim, nor is

it entirely relevant. Custin has not shown any authority that the Appeal Tribunal

hearing needed to comport with any particular rules of evidence. In fact, “the conduct

of hearings and appeals shall be in accordance with rules prescribed by the board of

review for determining the rights of parties, whether or not such rules conform to

common law or statutory rules of evidence and other technical procedures.” N.J. Stat.

Ann. § 43:21-6(f) (emphasis added).

variety of tribunals (who are not alleged to be biased or conflicted) disagreed.

That there may have been some procedural imperfections in the adjudication of

his claim does not negate the overall adequacy of the process he was afforded.

He had notice of and an opportunity to defend himself at an impartial hearing.

To the extent he believed the procedure or substance of the hearing was flawed,

he also had the ability to appeal the findings of that hearing multiple times,

ultimately to an independent judicial forum. Because the State Defendants did

not interfere with Custin’s right to that process, he cannot succeed in claiming

they deprived him of it. Even assuming arguendo that the outcome was

erroneous, which I do not, the process was not so defective as to give rise to a

constitutional claim.

Viewing all of the facts in the light most favorable to the non-movant, I

hold that, as a matter of law, the State Defendants have not violated Custin’s

due process rights. I grant summary judgment in favor of the State Defendants

on the § 1983 deprivation of due process claims.

C. Personal Liability and Qualified Immunity

Because Custin has failed to demonstrate a triable issue of fact with

respect to his Due Process claim, I do not reach ancillary issues, such as the

State Defendants’ potential personal liability, or qualified immunity.

D. State Defendants’ Requests to Strike Certain Arguments

In their reply brief, the State Defendants argue that (i) Custin’s

opposition brief should be disregarded due to its excessive length; (ii) his Rule

56.1 responsive statement of material facts should be disregarded because it is

overlong, improperly advances legal arguments, and fails to cite properly to the

record; and (iii) his argument regarding Shuck’s call-out list, along with other

new arguments, should be disregarded since it was raised for the first time in

his opposition brief and was not present in the operative complaint.

Because Custin appears pro se, I accept his filings as-is. I have

considered his documents and arguments fully in reaching my decision on the

merits.

III. Conclusion

For the reasons set forth above, the State Defendants’ motion for

summary judgment (DE 233) is GRANTED in favor of Defendants on all claims

based on alleged violations of the Due Process Clause of the Fourteenth

Amendment.

An appropriate order follows. The order invites the parties, within ten

days, to identify any issue which they believe remains open and undecided.

Dated: March 25, 2020

/s/ Kevin McNulty

____________________________________

HON. KEVIN MCNULTY, U.S.D.J.