DONNA WARE v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DONNA WARE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and GREATER

PLAINFIELD HABITAT FOR

HUMANITY,

Respondents.

_________________________________________

April 13, 2015

Submitted March 24, 2015 Decided

Before Judges Yannotti and Whipple.

On appeal from the Board of Review, Department of Labor, Docket No. 430,824.

Donna Ware, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Robert M. Strang, Deputy Attorney General, on the brief).

Respondent Greater Plainfield Habitat for Humanity has not filed a brief.

PER CURIAM

Donna Ware ("Ware") appeals from a final decision of the Board of Review ("Board"), dated November 29, 2013, which upheld the dismissal of Ware's administrative appeal because it had not been filed within the time prescribed by N.J.S.A. 43:21-6(b)(1), and because Ware failed to show good cause for the late filing. We affirm.

This appeal arises from the following facts. Ware was employed by Greater Plainfield Habitat for Humanity ("GPHH"), but left her job on May 10, 2013, when GPHH informed her that it was downsizing. On May 12, 2013, Ware filed a claim for unemployment compensation benefits.

On May 29, 2013, the Department of Labor ("DOL") sent Ware a notice, indicating that her claim was invalid because GPHH did not participate in the unemployment insurance program. The notice stated, "[a]ny appeal from the determination covered by this notice must be received or postmarked within [seven] days after the date of the delivery or within [ten] days after the date of the mailing of this notice." Ware filed an appeal on June 28, 2013.

The Appeal Tribunal conducted a hearing in the matter on August 6, 2013. The appeals examiner asked Ware whether she read the portion of the notice which indicated the time in which an appeal had to be filed. Ware replied that she did not "see that" until after she spoke with an auditor from a local unemployment office. That conversation took place on June 27, 2013.

On August 7, 2013, the Appeal Tribunal issued a decision, dismissing Ware's administrative appeal because she had not filed the appeal within the time prescribed by N.J.S.A. 43:21-6(b)(1). The Appeal Tribunal determined that Ware had not shown good cause for failing to file a timely appeal. The Tribunal noted that Ware had overlooked the instructions for the appeal on the notice, and determined that this did not constitute good cause for filing a late appeal.

Ware filed an appeal from the Tribunal's decision with the Board. On November 14, 2013, the Board issued a decision upholding the Appeal Tribunal's decision. Ware subsequently filed a motion for reconsideration with the Board.

On November 29, 2013, the Board decided to reopen the matter, and set aside its decision of November 14, 2013. The Board reconsidered its decision and again determined that Ware's appeal was untimely and that she had not shown good cause for the late-filed appeal. This appeal followed.

On appeal, Ware argues that she established good cause for the late filing of her appeal. She says her employer unlawfully failed to pay its unemployment taxes, and the agency delayed in auditing the employer. She contends that the agency issued an erroneous, premature decision which created a confusing situation in which her appeal rights were not clear. She states that the failure to evaluate the substance of her claim and the denial of benefits violate basic standards of justice. She argues that the Board's decision is arbitrary and capricious, and that the Board should be equitably estopped from dismissing her appeal because she was subjected to a "confusing situation" created by the employer's failure to pay unemployment taxes.

Ware further argues that the Board's interpretation of the good cause standard in this case violates the remedial and humanitarian purposes of the unemployment compensation law. She maintains that the rejection of her claim was unfair, and violated her right to due process under the Federal and State Constitutions.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). Furthermore, "'[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)).

Here, the Board determined that the Appeal Tribunal correctly found that Ware's appeal had not been filed within the time prescribed by N.J.S.A. 43:21-6(b)(1), and she failed to establish good cause for the late filing. The statute provides that

Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within [ten] calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final . . . .

[Ibid.]

An appeal is considered timely if postmarked or received by the due date. N.J.A.C. 12:20-3.1(d).

The record shows that the initial determination informing Ware that her claim was invalid was mailed on May 29, 2013. She did not file her appeal until June 28, 2013, which was after the time required by the statute.

Moreover, in Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992), the Court held that the statute prescribing the time in which an appeal must be taken from a decision regarding unemployment benefits was not jurisdictional. The purpose of the notice statute is to implement due process protections for persons seeking unemployment compensation benefits. Ibid. However, the statutory notices may not in certain circumstances provide adequate notice. Id. at 586-87. The Court concluded that, among other things, the allowance of good cause exceptions "would . . . go a long way toward protecting due-process rights." Id. at 590.

Thereafter, the DOL adopted a regulation defining "good cause" for the filing of a late appeal in unemployment compensation matters. N.J.A.C. 12:20-3.1(i)1 and 2; see also 26 N.J.R. 2196(a); 26 N.J.R. 3179(a). The regulation states in pertinent part that "good cause" may be found where the claimant shows that "[t]he delay in filing the appeal was due to circumstances beyond the [claimant's] control[,]" or that he or she delayed filing due to "circumstances which could not have been reasonably foreseen or prevented." Ibid.

There is sufficient credible evidence in the record to support the Board's determination that Ware failed to show "good cause" for her late appeal. The notice clearly stated the time in which Ware had to file her appeal. Ware conceded at the hearing before the Appeal Tribunal that she overlooked that part of the notice. The Board properly determined that Ware's failure to read the pertinent section of the notice was not "good cause" under the applicable standard.

Ware argues that the delay in filing the appeal was due in part to "confusion" as to whether her employer was a participant in the unemployment insurance program. However, any such "confusion" concerning her employer's participation in the program did not preclude Ware from filing a timely appeal.

Ware also argues that the Board should be equitably estopped from dismissing her appeal as untimely because the DOL failed to conduct a timely audit of her employer. An agency may be estopped from invoking a statute of limitations if it made representations or took actions that led the claimant to reasonably believe that a lawsuit need not be filed until the agency issued a final decision on the claim. W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 554-57 (1989).

In this case, however, the agency did not make any representation or take any action which led Ware to believe that she did not have to file a timely appeal from the initial determination declaring her claim to be invalid. Indeed, the notice issued by the DOL made abundantly clear that if Ware disputed the agency's initial decision on her claim, she was required to file an appeal challenging that decision within the time specified.

We have considered Ware's other contentions and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.