MARIA ALELOV v. BOARD OF REVIEW, DEPARTMENT OF LABOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2760-05T32760-05T3

MARIA ALELOV,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, AND TKACHEV,

VLADIMIR & VALENTINA,

Respondents.

_____________________________________________

 

Submitted July 18, 2006 - Decided August 7, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Board of Review, Department of Labor, Docket No. 82, 280.

Maria Alelov, appellant, pro se.

Zulima V. Farber, Attorney General, attorney for respondent Board of Review (Patrick DeAlmeida, Assistant Attorney General, of counsel; Andrea R. Grundfest, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Maria Alelov, appeals from a decision dated October 12, 2005, by the Board of Review (Board), disqualifying her for unemployment benefits for one year, finding her liable for benefits, totaling $10,258, she received while employed, and ordering her to pay a penalty of $2,564.50. We affirm.

On November 11, 2001, claimant filed a claim for unemployment benefits following a lay-off from employment with Elite Dental Labs. Claimant collected $446 for the weeks ending November 17, 2001, through April 20, 2002, for a total benefit of $10,258. During each of those weeks, claimant was also employed, part-time, for which she earned between $200 and $570 per week. Throughout the period in which she received unemployment compensation benefits, claimant maintained her unemployment claim by telephone on a weekly basis. When questioned telephonically each week as to whether she had worked during the week claimed, claimant responded "No."

In correspondence captioned "DETERMINATION AND DEMAND FOR REFUND OF UNEMPLOYMENT BENEFITS AND IMPOSITION OF PENALTY AND DISQUALIFICATION BECAUSE OF WILLFUL MISREPRESENTATION" (Demand), dated May 23, 2005, claimant was advised that she was found ineligible for the unemployment compensation benefits she collected from the week ending November 17, 2001, through the week ending April 20, 2002, because she was employed by Tkachev, Vladimir & Valentina. She was also disqualified from receiving further benefits for a period of one year from the date of the mailing of the notice. Numbered paragraph four of the Demand further advised claimant:

Appeal Procedure: If you disagree with this determination, you must file a written appeal and mail it to the above address within seven (7) calendar days after delivery or within ten (10) calendar days after the mailing of this notice. If your appeal is not received or postmarked within one of the appeal periods, this determination will be final. For additional information or assistance about filing an appeal, call (609) 292-0030.

Plaintiff did not file a written appeal during the time period set forth in the Demand. On July 10, 2005, claimant appealed to the Appeal Tribunal (Tribunal). The Tribunal conducted a hearing and issued a written decision in which clamaint's appeal was dismissed because it was filed after the statutory appeal period without a showing of good cause for the untimely filing. Claimant appealed to the Board of Review (Board), which affirmed the decision of the Tribunal.

In this appeal, claimant argues she has "a language barrier, and that [she] did not fully understand the timeframe to make an appeal . . . ." The record, however, demonstrates otherwise. Claimant acknowledged that she received the Demand "[p]robably on 26th or 27th." She also admitted that she read the Demand, including her right to appeal. She explained that, rather than file a written appeal, she chose to call the number listed "[b]ecause my writing my spelling is not so good. [My] speech is better than my spelling so I was trying to call them . . . ." She indicated that she made repeated calls which resulted in either getting a busy signal or no answer. She finally went to the unemployment office on June 13, 2005, "because I was working so my boss telling me to go that day." With the help of a friend, claimant filed her appeal on July 10, 2005.

The Tribunal concluded that:

N.J.S.A. 43:21-6(b)(1) provides that an appeal must be filed within ten (10) days of the mailing of the determination, or within seven (7) days of the receipt of the determination. The appeal was not filed within these limits and good cause has not been shown for the appeal being filed late. The Tribunal has no jurisdiction to rule on the merits of the appeal. The appeal is dismissed.

Our standard of review of unemployment compensation proceedings is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our function is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole with due regard to the opportunity of the one who heard the witnesses to judge their credibility.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quotes omitted)). We may not engage in an independent assessment of the evidence. Ibid.

Moreover, we accord considerable deference to those findings and will not disturb the agency's decision, unless we conclude that the decision reached was arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Our deference to an agency's findings of fact "is premised on our confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).

Applying these principles to the record before us, we are satisfied that the Board's decision was not arbitrary, capricious or unreasonable. In Alfonso v. Bd. of Review, 89 N.J. 41, cert. denied, 459 U.S. 806, 103 S. Ct. 30, 74 L. Ed. 2d 45 (1982), our Supreme Court had the occasion to deal with the harsh realities of language barriers in the context of unemployment compensation benefits procedures. The claimant, who was Spanish-speaking, filed for unemployment compensation benefits. Id. at 42-43. Her claim was denied after it was determined that she voluntarily left employment without good cause. Id. at 42. She appealed to the Tribunal, which dismissed the appeal as untimely. Ibid. The Board affirmed. Id. at 43. On appeal to us, the claimant argued that both the due process clause of the Fourteenth Amendment and Section 601 of the Civil Rights Act of 1964, 42 U.S.C.A. 2000d, required that the notice of determination, including the time within which to file an appeal of the determination, must be given to claimants in a language that they can understand -- in claimant's case, Spanish. Ibid. We rejected these arguments and affirmed the Board's decision. Alphonso v. Bd. of Review, 176 N.J. Super. 493, 495 (App. Div. 1980). The Supreme Court affirmed and the United States Supreme Court denied certiorari. Alfonso, supra, 459 U.S. at 806, 103 S. Ct. at 30, 74 L. Ed. 2d at 45; Alfonso, supra, 89 N.J. at 46. The Court reasoned:

The paramount question thus is whether the notice given to the claimant here was calculated "under all the circumstances" to convey the required information. The answer depends on an appraisal of the circumstances.

Appellant argues not that the notice was unclear per se, but rather that it was unclear to her solely because she is not literate in English. She alleges, and the Board does not dispute, that the agents of the Division who handed her the determination knew that she did not speak or read English. Under such circumstances, she maintains, the State was required by the due process considerations outlined by [Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)], and echoed in the New Jersey cases, [O'Connor v. Altus], 67 N.J. 106, 126 (1975); Feuchtbaum v. Constantini, 59 N.J. 167, 175 (1971), either to translate the notice for her or to give her a written translation. Logically extended, this argument leads to a requirement that when the State is obliged to give notice, it must provide such notice in a language comprehensible to the recipient, at least where the State is aware that the recipient is not fluent in English.

The highest courts in at least three states have rejected this argument. In two of those instances the courts were faced with situations nearly identical to those in this case.

In [DaLomba v. Dir. of the Div. of Employment Sec.], 337 N.E.2d 687 (Mass. 1975), the Supreme Judicial Court of Massachusetts held that an unemployment claimant's right to procedural due process was not violated when she was sent a notice written entirely in English, even though she was not fluent in English. The court said:

We do not believe that a notice in English, clear on its face, is insufficient under the statute merely because, as to persons under a language disability, it may not actually inform. English is the official language of this country and of this Commonwealth. Official communications in the English language are reasonable and are sufficient to constitute effective notice. [Id. at 689 (footnote and citations omitted).]

Because the notice in English was adequate, the court upheld the denial of the request for review that was not filed within the statutory time limit.

The same result was reached, under similar circumstances, in [Hernandez v. Dep't of Labor], 416 N.E.2d 263 (Ill. 1981). The case involved the denial of unemployment benefits. The Supreme Court of Illinois rejected the argument that due process required that an out-of-time appeal be allowed where the reason for the tardiness was the claimant's inability to comprehend a notice written entirely in English. Likewise, the Supreme Court of California has held that the State was not required to issue welfare reduction notices in Spanish to those who the State knew were literate in Spanish but not in English. Guerrero v. Carleson, 512 P.2d 833, [cert. denied sub nom., Guerrero v. Swoap], 414 U.S. 1137, 94 S. Ct. 883, 38 L. Ed. 2d 762 (1974), relying in part on Castro v. State, 466 P.2d 244 (1970), wherein the court, emphasizing the substantial state interest in maintaining a single language system made it clear that there was no constitutional requirement that California adopt a bilingual electoral apparatus. See also Kuri v. Edelman, 491 F.2d 684 (7th Cir. 1974); Nuez v. Diaz, 421 N.Y.S.2d 770 [(N.Y. Sup. Ct. 1979)]. The theory that unites all of these holdings is not complex. The courts have recognized, whether explicitly or implicitly, that in an English-speaking country, requirements of "reasonable notice" are satisfied when the notice is given in English.

These holdings are not born of any lack of appreciation for the difficulties that non-English speaking people encounter in our society. Those difficulties are many and burdensome. It is doubtless true, especially in areas where there is a high density of non-English speaking population, that administrative and humanitarian considerations would warrant the use of bilingual documents. The Board readily acknowledges as much. Indeed, as we were informed at oral argument, the Division has developed a Spanish language explanatory sheet for the Notice of Determination, for use in the cases of claimants who speak and understand Spanish and are deficient in English language skills. But these salutary considerations by no means translate into a requirement, under procedural due process concepts, that the State adopt a policy mandating the use of such documents. The decision to provide translation, encompassing as it does the determination of when a translation should be provided, and to whom, and in what language, is one that is best left to those branches of government that can better assess the changing needs and demands of both the non-English speaking population and the government agencies that provide the translation.

Under the circumstances the notice given to the appellant satisfied the requirements of due process. In so holding, we number ourselves among those other courts, cited above, that have expressed the view that although bilingual or multilingual notices may in some instances be desirable, their use is not constitutionally required.

[Id. at 44-46 (footnote omitted).]

Here, claimant, received the Demand and understood that she was required to appeal the decision if she disagreed with it, but she chose to attempt to resolve the matter telephonically because of her language deficiency. We note, however, that claimant understood all the questions and responded appropriately in the Appeal Tribunal hearing and in this appeal. We are therefore satisfied that the Board's decision was neither arbitrary, capricious nor unreasonable, but is supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D).

Affirmed.

 

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A-2760-05T3

August 7, 2006