DINA R. EVANGELISTA 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NOT FOR PUBLICATION WITHOUT THE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-05066-12T4

DINA R. EVANGELISTA,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR, and HOME DEPOT U.S.A., INC.,

Respondents.

October 29, 2014

Argued October 21, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from Board of Review, Department of Labor, Docket No. 418,223.

Paulette Pitt argued the cause for appellant.

John J. Hoffman, Acting Attorney General, argued the cause for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).

Respondent Home Depot U.S.A., Inc. has not filed a brief.

PER CURIAM

Dina R. Evangelista appeals from the May 22, 2013 final decision of the Board of Review, Department of Labor and Workforce Development (the Board), affirming the Appeal Tribunal's dismissal of her late appeal of the denial of her application for unemployment benefits.

Evangelista was employed as an assistant store manager at Home Depot, where she had worked for almost twenty-one years. She earned $65,000 and worked from forty-eight to fifty-five hours per week. She took maternity leave and gave birth to twins. Shortly before she was due to return to work she sent her boss the following email

I'm writing to inform you I will not be returning to work on Oct. 18th. Unfortunately I have to resign for the reason for caring for my twin boys. I thank you for everything you have done for me and thank the Home Depot Company for all the great opportunities. I will deeply miss everyone and miss working for a great company. Hopefully I will be in very soon to see everyone. Thanks again for everything.

Evangelista applied for unemployment benefits. A January 8, 2013 determination of disqualification1 stated

You left your job voluntarily due to lack of child care. Although child care is a compelling reason for leaving work, it is personal. Therefore, your reason for leaving does not constitute good cause attributable to the work. You are disqualified for benefits.

At the bottom of the page of the determination, the form states in large-print capital letters "APPEAL RIGHTS ON REVERSE." The following notice was in a black box on the reverse side

A determination becomes final unless a written appeal is filed within seven calendar days after delivery or within ten calendar days after the mailing of the determination. Your appeal must be received or postmarked within one of the appeal periods. . . . The appeal period will be extended if good cause for late filing is shown. Good cause exists in situations where it can be shown that the delay was due to circumstances beyond the control of the appellant which could not have been reasonably foreseen or prevented.

Beneath this notice was the address to send the appeal, with instructions that if the appeal is filed late the reason for the delay should be set forth. On the upper right-hand corner of the front of the determination the time-frame for filing an appeal was also set forth, underlined, under the capitalized heading "RIGHT OF APPEAL" and specifying the exact date that was ten days from mailing. More than two months and ten days after the determination was mailed, on March 21, 2013, Evangelista filed an appeal without including a reason for her delay.

During the telephonic hearing before the Appeal Tribunal, Evangelista indicated that she read the determination but "just thought" that the appeal rights did not apply in her case. She testified that she did not realize until she spoke to "some people" that she could appeal.

Our review of an administrative agency's final action is quite limited. "[A]n appellate court will not upset an agency's ultimate determination unless the agency's decision is shown to have been arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as a whole." Barrick v. State, 218 N.J. 247, 259 (2014) (citations and internal quotation marks omitted). The decision of an administrative agency carries with it the presumption of reasonableness. N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012) (citing N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008). However, when the agency's decision is "plainly mistaken," it is entitled to no such deference and must be reversed in the interests of justice. W.T. v. Div. of Med. Assistance & Health Servs., 391 N.J. Super. 25, 36 (App. Div. 2007) (citations omitted).

The time to appeal, seven calendar days after delivery or ten calendar days after mailing, which was set forth twice in the determination Evangelista received, is governed by N.J.S.A. 43:21-6(b)(1). The definition of a good cause exception to those time requirements is provided in N.J.A.C. 12:20.3-1(i)

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.

We recognized the importance of adequate procedural safeguards to insure due process protections in the agency appeal process for unemployment benefits in Garzon v. Board of Review, Department of Labor, 370 N.J. Super. 1 (App. Div. 2004). Noting the agency's determinations at that time lacked sufficient instruction informing the applicant of the appellate deadline, we indicated that "an analysis under fairness principles [coincides] with a procedural due process analysis, since at its core, due process calls for those procedural protections that fairness demands." Id. at 9 (citations omitted). The agency has since modified the instructions.

Evangelista did not demonstrate good cause for her late appeal. She testified that she received the determination one or two weeks after the mailing date. She did not appeal until approximately two months after she received the determination. She had no cause for the delay beyond her failure to believe for unspecified reasons that the appeal information applied to her situation. Evangelista did not allege any disability to excuse her failure to understand the appeal rights. Her job title and her well-written email of resignation belie the existence of any such disability. The Board's decision to dismiss the appeal due to its late filing was supported by substantial credible evidence in the record and was not arbitrary, capricious, or unreasonable.

Affirmed.

1 Neither party supplied a copy of this determination, but they do not disagree as to its contents.