On appeal from the Board of Review, Department of Labor, Docket No. 284,085.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
Petitioner Sandra H. Comarcho appeals from a final decision issued by the Board of Review, upholding the denial of her application for unemployment benefits. The Board found Comarcho's administrative appeal was untimely and that she failed to demonstrate good cause to excuse the delay. We affirm.
Comarcho worked as an advertising account executive for the Newark Morning Ledger Co. (NML), owner of the Star-Ledger and The Times of Trenton newspapers. Facing heavy financial losses, NML circulated "buyout offers" to its full-time non-represented employees. They provided for payment of "2 weeks pay for every year of completed service, capped at 26 weeks pay, along with medical coverage for the severance period." Comarcho did not participate in the first offer, but accepted a second buyout offer with similar terms in late November 2009.
Comarcho's last day of employment was December 4, 2009. Thereafter, she applied for unemployment benefits. Comarcho was awarded benefits for the period of November 21, 2009 to April 24, 2010, totaling $12,848. When Comarcho contacted the Department of Labor and Workforce Development, Division of Unemployment (Division) after a May 11, 2010 payment was not received, she learned an April 30, 2010 letter determining she was disqualified for benefits had been mailed to her. Comarcho had not received the letter, explaining:
The reason why I did not receive the letter is I always received --- take the mail out of my mailbox. I have a key and so forth and unbeknownst to me my son[, who] never picks up the mail had I guess the week prior to that, gone in and picked up the mail and when I questioned if there was any mail, he mentioned that there was a stack of mail that he put somewhere else in another location in the house[,] in his room[,] as a matter of fact[.]
Comarcho stated her son was also receiving unemployment benefits and he had "assumed it was a notice of automated deposit, which they both received weekly."
Comarcho located the letter, which was from a Deputy Director of the Division of Unemployment and Disability Insurance (Deputy), informing her that a review of the facts resulted in a determination that she was disqualified for unemployment benefits beginning November 8, 2009. The Deputy determined Comarcho was disqualified from receiving unemployment benefits because she "left work voluntarily on 11/13/09 . . . due to a buy out agreement[,]" which was considered "a mutual separation agreement[.]" Accordingly, her reason for leaving her employment did "not constitute good cause attributable to the work."
The notice expressly stated, "Any appeal from this determination must be submitted in writing within 7 days after delivery or within 10 days after the date of mailing. The tenth day after the date of mailing [wa]s: 5/10/10[.]" The Division issued a separate demand for her to refund any benefits previously paid.
On May 19, 2010, Comarcho filed an appeal of the denial of her application for benefits. She explained the delay resulted because she "was trying to find out information . . . [she] was trying to call in and couldn't get through." Then she went to her employer to "find out what was going on[,]" as she believed her former employer had challenged her request for benefits. She claimed she was told not by one but two individuals representing the NJ Dept. of Labor and Workforce Development in [two] different offices over the course of that week that this [delay in filing the appeal] should not be a problem but simply to get my appeal letter in as soon as possible after gathering my information.
Comarcho asserted she completed the paperwork for an "in-person hearing appeal" on May 14, 2010, while in the Division's office; orally gave notice of her intention to appeal the adverse determination during a May 18, 2010 telephone call to the Division; and hand-delivered her appeal in writing on May 19, 2010.
On July 6, 2010, an Appeal Tribunal held a hearing. Comarcho appeared and her employer did not.
In addition to addressing the delay in Comarcho's filing, the Appeals Examiner accepted testimony regarding the circumstances surrounding why Comarcho no longer worked for the newspaper, as follows:
[Examiner]: Why are you no longer [with your employer] as of December 4? [Comarcho]: Because of the downsizing of ...