CUSTIN v. WIRTHS

Filing 253

OPINION. Signed by Judge Kevin McNulty on 3/25/2020. (bt, )

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.
MADDOW, et al.,

OPINION

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.
1

I. Background 1
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

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.
1

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)

2

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
The applicable statute, effective as of the time of Custin’s application for
benefits, reads in relevant part as follows:

2

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).
Custin refers to this individual as “Shupp” or “Schupp,” but her name is listed
in the Appeal Tribunal transcript and Defendants’ briefing as “Shuck.”
3

3

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

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.
4

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).
5

4

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).

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).

6

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).
7

5

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).

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).
8

6

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
7

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
8

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. 071058, 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
9

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).

10

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.
11

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.
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).
9

12

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.

13

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:

The Third Circuit designated Brown as a nonprecedential decision.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

14

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).
15

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
16

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).

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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 WalMart 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
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).
12

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.

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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).
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.
14

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).
15

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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.
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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.

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