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Irma Cotton v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 16, 2011

IRMA COTTON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND KEEFE COMMISSARY NETWORK, LLC, RESPONDENTS.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 236,727.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 5, 2011 -

Before Judges A. A. Rodriguez and Sabatino.

This is an appeal of the denial of unemployment benefits. The claimant for benefits, Irma Cotton, contests the final agency decision of the Board of Review ("the Board") dated September 1, 2010. In its decision, the Board rejected claimant's administrative appeal of an adverse ruling by the Appeal Tribunal because she failed to file that appeal with the Board within the strict time frame prescribed by N.J.S.A. 43:21-6(c) and N.J.A.C. 12:20-4.1(a). We affirm.

Claimant, who is originally from Guatemala, was discharged from her employment with Keefe Commissary Network, LLC, in April 2009. She filed a claim for unemployment benefits. For a short period of time, she collected benefits. However, in May 2009 the Deputy Director of the Division of Unemployment and Disability Insurance ("the Division") determined that claimant was ineligible for benefits on various grounds. Among other things, the Division found that claimant, whose authorization to work in this country was then expired, was unavailable for work. See N.J.S.A. 43:21-4(c)(1). The Division consequently directed claimant to refund the benefits that erroneously had been paid to her.

Claimant sought review of the Division's ruling by the Appeal Tribunal. On January 22, 2010, the Appeal Tribunal conducted a telephonic hearing in claimant's matter. Although we have not been furnished with a transcript of the hearing, it appears from the other materials in the record that claimant contends that she had been discharged by her employer only because the federal immigration authorities were backlogged in processing renewals of employment authorizations, including hers. The Appeal Tribunal rejected claimant's position. As part of its analysis, the Appeal Tribunal concluded that claimant could not receive benefits for the time frame in question because she was unavailable for work.

The Appeal Tribunal's adverse decision was mailed to claimant's home on February 17, 2010. The decision contains explicit language, both in English and translated into Spanish, warning that claimant must file any appeal of the Appeal Tribunals' decision with the Board within ten days of the mailing of that decision. In claimant's situation, that date was March 1, 2010, the first business day after Saturday, February 27, 2010. See N.J.A.C. 12:20-4.1(b) (extending to the next business day filing deadlines falling on Saturdays, Sundays and legal holidays, when computing the time for an administrative appeal). However, claimant did not heed this admonition and belatedly filed her administrative appeal with the Board on March 10, 2010, nine days late. The Board accordingly rejected her internal appeal as untimely. This appeal ensued.

We need not address the merits of claimant's application for benefits because it is clear, as a procedural matter, that claimant's administrative appeal was out of time.

During the period relevant to this appeal,*fn1 N.J.S.A. 43:21-6(c) specified that the Appeal Tribunal's decision "shall be deemed to be the final decision of the [B]oard of [R]review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated pursuant to [N.J.S.A. 43:21-6(e).]" See also Lowden v. Bd. of Review, 78 N.J. Super. 467, 468-70 (App. Div. 1963) (strictly enforcing the applicable filing deadline). This prompt deadline is necessitated by the high volume of unemployment cases that the agency processes statewide, and the need to complete those cases expeditiously. It would be unfair to hold countless other applicants to that strict deadline but make an unauthorized exception for this particular claimant.

Although a regulation, N.J.A.C. 12:20-4.1(h), allows the ten-day deadline to be extended in limited situations upon a demonstration of good cause, claimant offered the Board no explanation for her delay in filing an appeal, and the record is now closed.

Claimant presently argues that she delayed in filing her appeal with the Board of Review because of language barriers, as English is not her first language. However, as we have already noted, the Appeal Tribunal's decision was communicated in both English and Spanish. Moreover, claimant implicitly should have been aware of the importance of filing deadlines; in fact she did manage to file her appeal from the Division in a timely manner. There is no contention here that the Appeal Tribunal's decision was mailed to the wrong address for claimant, or that it was translated into the wrong language. Cf. Rivera v. Bd. Of Review, 127 N.J. 578 (1992).

Given the circumstances, we must affirm the Board's decision, affording it the deference it is owed as an administrative agency on matters within its area of responsibility. See, e.g., Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Futterman v. Bd. of Review, 421 N.J. Super. 281, 287 (App. Div. 2011).

Affirmed.


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