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Wileman v. Board of Review

Superior Court of New Jersey, Appellate Division

November 26, 2013



Submitted October 25, 2013

On appeal from the Board of Review, Department of Labor, Docket No. 364, 852.

Elkind and DiMento, PA, attorneys for appellant (Steven S. Lubcher, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher J. Hamner, Deputy Attorney General, on the brief).

Before Judges Fuentes and Haas.


Jessica Wileman appeals from a final decision of the Board of Review dated August 7, 2012, dismissing her appeal as untimely. After reviewing the record before us and mindful of prevailing legal standards, we have opted to exercise the discretionary authority conferred to us by Rule 2:8-3(b) and, on our own motion, summarily affirm the Board's decision.

Appellant was employed as Assistant Vice President and Branch Manager by Citizens Bank from 2006 to November 30, 2008. Appellant claims she left her employment that day and subsequently sought a "medical leave" due to "personal health reasons, including work related stress, anxiety, panic attacks, inability to sleep, nausea and migraine headaches." The physician whom appellant consulted estimated appellant was capable of returning to work sometime in February 2009.

According to appellant, she was ready and willing to return to work on February 2, 2009. Before she could return to work, however, she received a letter from her employer dated January 29, 2009, terminating her from her position due to unexcused medical absences. Although appellant contests the merits of this determination by her employer, our decision affirming the Board of Review's decision is based exclusively on the timeliness of appellant's appeal. As such, we need not, and specifically do not, express any opinion concerning the underlying basis of appellant's termination from her employment.

Appellant filed a claim for unemployment benefits on February 1, 2009, and received benefits totaling $28, 562. On October 24, 2011, the Director of the Division of Unemployment Insurance sent appellant a Notice of Determination informing her that she had been found ineligible to receive unemployment compensation benefits pursuant to N.J.S.A. 43:15-5(a) because she had voluntarily left employment on January 23, 2009, without good cause attributable to such work. The Director also noted that appellant was "not available for your fact finding interview on 07/13/10 . . . . Since you were not available for your fact finding interview, you have not demonstrated good cause attributable to work." Finally, the Notice of Determination clearly 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 is: 11/03/11.

It is not disputed that appellant did not file an appeal of the Director's October 24, 2011 determination to the Appeal Tribunal until December 7, 2011. Despite the undisputed untimeliness of appellant's appeal, the Appeal Tribunal conducted a hearing on this matter on May 14, 2012, at which appellant participated telephonically.

At the May 14, 2012 hearing before the Appeal Tribunal, appellant explained as follows:

A. I know that I had it longer than I was supposed to have it. My problem was that I -- I'm sure you guys hear this all the time but I do have a very hectic schedule and I was a little confused about what I was supposed to do. I did try to call and it's impossible. I went to the unemployment office that's local to me and they told me to call in from one of their phones. I was disconnected several times.
A. No. I don't. I'm sure they received them on the dates that they said.
Q. Okay. Do you believe that you had those notices for more than ten days?
A. Very possibly. Yes.
Q. Okay. More than seven days?
A. I'm sure. Yes.
Q. Okay. And you said that the reason why you waited to file the appeal was because you have a busy life.
A. It's a busy work schedule. Yeah. I opened a brand new salon with my job and I'm just not available very often. I work about an hour away from where I live.
Q. And when did you start that?
A. Approximately two years ago.
Q. Well when did you --
A. It was -- hold on -- we opened October 25th of that same -- actually that same year -- actually this date. So I was in the middle of training and doing everything for work at that point. I ended up having to go to the Trenton office to speak with somebody and they gave me the instructions to fax which is what I did after I got all the medical records from my doctor.
Q. Hm hm.
A. All that probably took a couple of weeks for me to get a hold of.
Q. Okay. I'm just curious. Why would you opt to actually take the time out of your busy work schedule to go to a local unemployment office as opposed to just following the instructions on the determination notice to simply mail a letter?
A. I thought that I would actually get further if I went to the unemployment office.
Q. Okay. So you got the notice. Did you read the instructions on how to appeal when you got both of those notices?
A. Yes. I'm sure I did.
Q. Okay.
A. All I can do is offer my apologies for my tardiness. I really don't know what else to say in explanation of that.
A. Citizens Bank.
Q. What was your position at Citizens Bank?
A. I was Assistant Vice President and Branch Manager.
A. I was there for about two or three years. Say two years.
Q. Okay. When you filed your unemployment claim, you listed your last day of work as 11/30/08. Does that sound right?
A. That was 11/30/08 - - that was the last day before I went out on medical leave.
Q. He just puts estimated return to work date February 2009.
A. 2009 was February 2nd. Does that sounds right?
A. Yes ma'am.

In a decision mailed to appellant on May 14, 2011, the Appeal Tribunal dismissed the appeal as untimely filed pursuant to N.J.S.A. 43:21-6(b)(1), which requires a claimant to file an appeal with the Appeal Tribunal "within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or their last-known address and addresses." The Appeal Tribunal found, and the record reflects, that the determination of the Deputy was mailed to appellant on October 24, 2011; appellant filed her appeal on December 7, 2011, forty-four calendar days after the Deputy's decision was mailed to appellant at her last known address.

The Appeal Tribunal also found appellant intentionally "delayed filing her appeal until after she discussed the matter with a division representative, " despite being provided with "clear appeal instructions on the determination notices she received." Under these circumstances, the Appeal Tribunal held appellant did not establish "good cause" for relaxing the statutory restrictions in N.J.S.A. 43:21-6(b)(1). The Appeal Tribunal also, as authorized by N.J.S.A. 43-21.16(d), directed appellant to refund the $28, 562 she had received in unemployment compensation benefits.

On May 30, 2012, appellant sought further review of the Appeal Tribunal's decision to the Board of Review. In a decision dated August 7, 2012, the Board of Review upheld the decision of the Appeal Tribunal.

On appeal to this court, appellant raises two basic arguments: (1) the Board of Review's decision undermines the public policy underpinning the unemployment compensation system created by the Legislature, which requires any impediment to compensation to be liberally interpreted in favor of the unemployed applicant; and (2) the decision violated her constitutional right to procedural due process. In response, the Board argues its decision comported with the due process standards first articulated by our Supreme Court in Rivera v. Board of Review, 127 N.J. 578 (1992), and now codified in N.J.A.C. 12:20-4.1(h). We agree with the Board's position.

In Rivera, a migrant farm worker challenged the provisions in N.J.S.A. 43-21-6(d) which deemed a notice "received" by the claimant if it was mailed to his or her last known address. 127 N.J. at 579-580. The notice was sent to Mr. Rivera "during farming season" at his off-season address. Ibid. The Court framed the legal issue before it as follows:

The question raised by the case is what minimum-notice rules are necessary to assure that a recipient of unemployment benefits knows that an initial determination of ineligibility has been made and has sufficient time to exercise his or her right to appeal before that determination becomes final.
[Id. at 580.]

Citing the clear statutory mandate in N.J.S.A. 43-21-6(d)[1], which requires notices to be sent to the claimant's last known address, the Department of Labor argued it did not have the authority to interpret the statute in any other manner. Id. at 587. Rejecting the Department's argument, the Court noted that "the agency's statutory obligation must concur with its constitutional obligation. The Department is subject to the constitutional obligation to protect the due-process rights of claimants." Ibid.

The Court ultimately held that the Department needed to make more diligent efforts to send notices to migrant farm workers like Mr. Rivera in manner likely to reach him. The Department needed to recognize that farm workers like Mr. Rivera live in New Jersey and Puerto Rico during different times of the year. Id. at 590. The Court directed the Department to promulgate the necessary regulations to provide "good cause" exceptions and establish "a more diligent effort to keep track of former recipients." Ibid. Of particular relevance to the issue raised by appellant here, the Court in Rivera found "nothing per se defective about the statutory time limitations on the right to appeal." Id. at 587.

The Department of Labor adopted N.J.A.C. 12:20-4.1 in response to the Supreme Court's charge in Rivera. Subsection (h) provides as follows:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:
1.The delay in filing the appeal was due to circumstances beyond the control of the appellant; or
2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

Applying these standards to the salient uncontested facts in this case, we are satisfied that appellant failed to establish "good cause" to warrant the relaxation of the time restrictions in N.J.S.A. 43:21-6(b)(1).


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