RAYMOND RHODES v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00633-14T1

RAYMOND RHODES,

Appellant,

v.

BOARD OF REVIEW and GS4 SECURE

SOLUTIONS, INC.,

Respondents.

______________________________

December 18, 2015

Submitted October 27, 2015 Decided

Before Judges Reisner and Whipple.

On appeal from Board of Review, Department of Labor, Docket No. 408,390.

Raymond Rhodes, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Brian M. Scott, Deputy Attorney General, on the brief).

Respondent G4S Secure Solutions, Inc., has not filed a brief.

PER CURIAM

Raymond Rhodes appeals from an August 15, 2014 final decision of the Board of Review (the Board) denying his administrative appeal as having been filed late without good cause. We affirm.

Rhodes was a security officer working for G4S Secure Solutions. He was terminated from his employment on August 21, 2012, for violating the dress code policy by taking off his uniform jacket and tie at work. Rhodes filed for unemployment benefits on August 19, 2012 and received benefits until October 22, 2012, when the Department of Labor (the Department) alerted him that he was disqualified because he had been terminated for misconduct at work. Additionally, the Department requested a refund totaling $848 because Rhodes had been provided benefits erroneously.

Rhodes appealed the decision to an Appeal Tribunal and he and his former employer participated in a telephone hearing on September 24, 2013. The Appeals Tribunal affirmed the Department's decision to disqualify Rhodes in a written decision dated September 25, 2013 which modified the original determination stating that Rhodes was discharged for severe misconduct, affirmed Rhodes's liability to refund $848, and included explicit instructions indicating he had twenty days within which to appeal the decision.1

Rhodes filed an appeal to the Board on May 8, 2014.2 The Board dismissed his appeal on August 15, 2014 because it was filed beyond the twenty days allowed for filing. This appeal followed. Rhodes asserts that medical conditions associated with stress and job training prevented him from devoting any time to his appeal, and that this constitutes good cause for filing a late appeal. We disagree.

N.J.S.A. 43:21-6(c) provides that

an appeal tribunal, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and the determination. The parties shall be duly notified of such tribunal s decision, together with its reasons therefor, which shall be deemed to be the final decision of the board of review, unless further appeal is initiated pursuant to subsection (e) . . . within 20 days after the date of notification or mailing of such decision for any decision made after December 1, 2010 . . . .

Despite the rigid language of the Legislature's statutory deadline, our case law does provide for exceptions to the filing requirement in cases where a claimant can demonstrate good cause. See Rivera v. Bd. of Review, 127 N.J. 578, 589-91 (1992); Garzon v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004). We allow such exceptions when the requirements of due process so demand. Rivera, supra, 127 N.J. at 590. The Board has promulgated regulations governing the review of appeals filed late, and provides that late appeals may be considered when a delay in filing is caused by circumstances outside the applicant's control, or if the delay occurred because of circumstances that could not have been reasonably foreseen or prevented. N.J.A.C. 12:20-4.1(h). These exceptions recognize the need for the Board to be flexible in light of due process requirements. Garzon, supra, 370 N.J. Super. at 7 n.4 (citations and quotations omitted).

In this case, the Appeals Tribunal provided Rhodes with instructions to file an appeal within seven days after delivery of its notification or within ten days after the notice was mailed (whichever was latest); explained the deadline to appeal; and informed him of the good cause exception. Rhodes has not proffered any evidence demonstrating circumstances that were outside his control or that could not be foreseen or prevented. Although he asserts that his medical condition was one of the reasons his appeal was late, Rhodes provides no evidence that his condition prevented him from filing a timely appeal with the Board. We note that, according to his own submission, his condition did not prevent him from engaging in job training. Rhodes has also not shown unforeseeable circumstances because he admits that he knew of his condition before the tribunal issued its decision.

Accordingly, Rhodes presents no colorable due process claim. He was apprised of the appeal period and the good cause exception pursuant to Garzon, supra. Rhodes has also provided no valid reasons requiring an extension of the deadline under the circumstances.

Affirmed.

1 Rhodes appeal to the Appeal Tribunal was accepted out of time because "[a]s a result of a natural disaster which struck the region at that time, [Rhodes] was unable to file his appeal by mail until 11/5/12".

2 Although the Board's decision letter is dated February 11, 2014, claimant's appeal was dated May 7, 2014, and the postmark on the letter indicates it was mailed on May 8, 2014. We thus accept the State's assertion that the Board letter's February date was a product of typographical error.