KEONA WRIGHT v. BOARD OF REVIEW NEW JERSEY DEPARTMENT OF LABOR, and CARRIER CLINIC
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0036-18T1
KEONA WRIGHT,
Appellant,
v.
BOARD OF REVIEW,
NEW JERSEY DEPARTMENT
OF LABOR, and CARRIER
CLINIC,
Respondents.
_____________________________
Argued December 9, 2019 – Decided February 12, 2020
Before Judges Sumners and Natali.
On appeal from the Board of Review, Department of
Labor, Docket No. 113,887.
Kevin J. Mahoney argued the cause for appellant
(Keona Wright, on the pro se briefs).
Jana Rene DiCosmo, Deputy Attorney General, argued
the cause for respondent Board of Review (Gurbir S.
Grewal, Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of counsel; Jana
Rene DiCosmo, on the brief).
Respondent Carrier Clinic has not filed a brief.
PER CURIAM
Appellant Keona Wright challenges the final decision of the Board of
Review of the Department of Labor and Workforce Development (Board)
affirming the decision of the Appeal Tribunal disqualifying her from receiving
unemployment benefits from October 9, 2016 through January 21, 2017.
Because there is credible evidence in the record to support the Board's
determination of Wright's ineligibility for benefits during that period due to her
failure to show good cause why she did not comply with reporting requirements
in accordance with the Division of Unemployment Benefits (Division)
regulations, we affirm.
I
The administrative record reveals the following relevant procedural
history and facts. 1 On July 17, 2016, Wright successfully filed a claim for
benefits with the Division after being separated from work. On August 19, 2016,
the Deputy Director of the Division (Deputy) determined Wright was eligible
for benefits. That determination was amended when the Division notified
1
The Appeal Tribunal conducted hearings on April 5, 2017, May 4, 2017, and
April 25, 2018.
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2
Wright on or about October 4, 2016, that she was disqualified from receiving
benefits for eight weeks because she was discharged from her former
employment for simple misconduct connected with the work. 2
Prior to the disqualification notice, Wright had continued to report to the
Division as required until September 10, 2016. According to Wright, she was
notified about a meeting with the Division to assess her re-employment efforts,
but she was not able to attend. She stated she got lost on the way to the meeting
and didn't know where she was, and "called the number of the woman [at the
Division.] I think it was a woman[. I]t was a long time ago."3 She was not able
to reach anyone to figure out where she was supposed to be, and she never heard
about a meeting again after that.
Knowing she was required to report weekly, Wright claimed she was
unable to report online the week after September 10, because she didn't input all
her information into the online system. In response to an error message on her
computer, she called the Division but was unable to speak to someone, as she
got an automated message telling her "to file online from the phone and then
2
A copy of this notification was not provided in the record.
3
The Appeal Tribunal hearing transcripts contain ellipses, which may suggest
a pause in the witnesses' testimony. For the reader's convenience, we have
removed them here and throughout this opinion.
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3
[she] found another number on the website." She called the other number and it
continued to ring with no response. Thereafter, she maintains she tried reporting
online a few other times that week and the following week but to no avail.
Wright claimed she was unaware she could report by going to a local Division
office, and her further attempts to report through the Division's automated
system were futile.
To evidence her attempts to report by phone, Wright provided records of
her telephone calls from September 23 to September 28, 2016 and January 25 to
January 27, 2017. When asked about this four-month gap, Wright stated:
I tried online again . . . a couple of more times until I
think around . . . . [Y]ou want specific dates[,] hold on
one second. Let me see[.] [L]ooking at a calendar. . . .
Sunday, Monday[,] this is the day I called. So[,] since
I was used to reporting on like Sundays . . . October 2
. . . I most likely tried again. You know . . . I attempted
it weekly until I received my notice.
....
[T]hen it wouldn't even let me like log into the system.
....
Like I couldn't even log in at one point in time[,] like
my information didn't send me to the claim benefits
screen.
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4
Wright also testified she felt despondent and experienced anxiety and
depression due to her termination and belief that the October 4, 2016 notification
advised she was permanently disqualified for benefits. She claimed it was not
until her counsel informed her in January 2017, that she learned her
disqualification was just for eight weeks. When asked by the claims examiner
if her mental state affected her ability to report for benefits, Wright first replied
"no . . . it only takes five seconds to write up an email and attach a resume . . . ."
In response to the claims examiner's follow-up question seeking clarification
about the impact of her alleged anxiety and depression, Wright responded "the
only way I can answer this question is did it impact my ability to do so, yes. Did
it stop me from doing so[,] it probably would have but like I said . . . I'm a more
positive person."
In explaining her sporadic attempts to report after October 10, 2016,
Wright replied:
I want to say . . . this specific date thing is . . . what
ties me up because I can tell you month, but it's just
those days[.]
....
[M]y last attempt trying online was in January before I
finally reached the number. It was January.
....
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It was between January 17 and . . . 26. I know because
that's when I was kind of informed that I could still
receive my benefits. So I went online to try and see if
I was still able to log in[,] if I was able to get that
screen, because if I was able to still receive my benefits
than I should be able to log on and go online and
continue the process that I had been . . . in like July, and
June, and August.
Wright claimed she continued her attempts to report online from
November 2016 through January 2017. When asked if the last time she tried to
report online was December, Wright stated, "with my personality I most likely
probably would have tried on Christmas. . . ."
Regarding her telephone reporting attempts between September 27, 2016
and February 18, 2017, Wright testified:
I know I did. It is just what number did I call 'cause I
do recall calling a number and then do recall it not
giving me any contact with a human being and then
searching the another number[,] receiving another
number and finally reaching someone, but[,] what
number was it?
....
I'm thinking[,]. . . I'm relating it to other things in my
mind because I remember having a phone call
conversation and I remember trying to call[,] I want to
say around Valentine's Day. [L]ike in the middle of
February . . . I was trying to see if I can access the
record and give you a phone number that I called, but[,]
I do remember calling a number and then that number
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didn't pan out and then calling another number which
led me to my February[.]
According to the Division, Wright's claim for benefits was reopened as of
February 19, 2017 because she reported during the week ending February 25,
2017. Wright later received notice from the Deputy on March 10, 2017, advising
her she was ineligible to receive benefits from September 11, 2016 through
February 18, 2017 because she did not report. Wright appealed the
determination to the Appeal Tribunal.
The ensuing Appeal Tribunal telephonic hearing was adjourned to allow
Wright time to obtain phone records. After the continued hearing, the Appeal
Tribunal issued a May 9, 2017 decision finding Wright was eligible for benefits
from September 11, 2016 through October 8, 2016 but ineligible for benefits
from October 9, 2016 through February 18, 2017. Wright's claim was remanded
to the Deputy to determine whether Wright was eligible for benefits for the later
period. Wright appealed to the Board.
On March 23, 2018, the Board decided additional testimony from Wright
was needed and remanded the case to the Appeal Tribunal to "for a hearing and
a decision on all issues."
On April 24, 2018, Wright's counsel, emailed the Board claiming it was
"acting in this case in a way in which impinges on the regulatory, due process
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and procedural rights of Ms. Wright, as well as similarly situated claimants with
remands." The email was apparently referencing confidential communications
the Board shared with the Appeal Tribunal. The record includes an unsigned
and undated response, presumably from the Board, stating:
It has come to our attention that in a matter in which the
Board has issued an order of remand for additional
testimony, you have requested that the appeals
examiner provide you with a copy of the Board of
Review worksheet.
We have gone down this road before. Over the years,
you have raised this issue again and again and our
response has always been the same. The Board, by the
wording of its remand order, indicates in general terms
to the parties the reason for the need for additional
testimony. However, the Board's worksheet, in which
it gives instructions and sometimes suggestions to the
hearing officer as how to proceed is, as you are aware,
off limits to both claimants and employers.
Pursuant to N.J.S.A. 43:21-10(d), the Board supervises
the work of the Appeal Tribunal. Moreover, decisions
of the Appeal Tribunal that are not appealed become
decisions of the Board of Review. N.J.S.A. 43:21-6(c).
Consequently, the appeal tribunals are creatures of the
Board, and our instructions to the appeal examiners by
means of our worksheets are directions to our
subordinates, and hence, privileged communications
not subject to disclosure to the parties in a benefit
dispute.
A-0036-18T1
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The next day, April 25, Wright had a telephonic hearing before the Appeal
Tribunal. That same day, the Appeal Tribunal issued a decision reiterating its
earlier ruling that Wright was eligible for benefits from September 11, 2016
through October 8, 2016; finding Wright's credible testimony demonstrated she
had good cause for failing to report during that time period . Wright was also
awarded benefits from January 22, 2017 through February 18, 2017, because she
attempted to report on January 26, 2017. However, the Appeal Tribunal ruled
Wright was ineligible for benefits from October 9, 2016 through January 21,
2017 because her inconsistent testimony failed to establish good cause for not
reporting.
The Appeal Tribunal reasoned:
Although [Wright] testified that she may have made
attempts to report for benefits two times a month, she
could not provide specific dates of these attempts or the
calendar weeks in which these alleged attempts were
made. [Wright's] testimony of any attempts to report
for benefits after [October 04, 2016] was extremely
vague during the initial hearings. [Wright] used
language such as "probably" and "may have" when
describing alleged attempts to report after [October 04,
2016]. [Wright] admitted that after she received the
decision holding her disqualified for benefits on the
ground that she was discharged for simple misconduct
connected with the work, she believed that the
disqualification period was indefinite[,] and she
became despondent. During the hearing on [April 25,
2018], when asked when she made attempts to report
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for benefits from [October 9, 2016] through [February
18, 2017], [Wright] testified that she remembered
making attempts in the beginning of [February 2017],
which was her birthday. During that hearing, she did
not testify to any attempts made to report for benefits
prior to [February 2017]. Thus, her testimony that she
made attempts to report for benefits between [October
9, 2016] through [January 21, 2017] was inconsistent
and is not found to be credible. Consequently, her
contention is rejected.
[Wright] contended that she has shown good cause for
failing to report for benefits from [October 09, 2016]
through [January 21, 2017] because she became
depressed and anxious after she was discharged from
her former employer. However, when asked directly if
her medical condition made her unable to report for
benefits during the time period in question, she testified
that she was able to complete this type of small task. It
is noted that had [Wright] been unable to report for
benefits during that time period, then she would not
have met the requirement of being able to work, which
would bar her from receipt of benefits. Hence,
[Wright's] contention is rejected.
The Appeal Tribunal found there was no good cause for Wright's failure
to report after receipt of the October 4, 2016 disqualification notice until January
26, 2017 because the notice was clear that she was disqualified for benefits for
only eight-weeks due to her termination for simple misconduct. Wright
appealed the decision to the Board.
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On July 20, 2018, the Board affirmed the Appeal Tribunal's April 25, 2018
decision. Two weeks later, Wright's counsel requested the Board reopen and
reconsider its decision.4 The Board denied the request. This appealed followed.
II
On appeal, Wright argues the Board's decision denying her benefits from
October 9, 2016 through January 21, 2017 was incorrect because it did not apply
the proper good cause test. To support her claim she was substantially prevented
from reporting, as required to find good cause, Wright cites Rivera v. Bd. of
Review, 127 N.J. 578, 580-81, 589-90 (1992) (holding the Department of
Labor's repayment notification process was inadequate to protect the due process
right to appeal the denial of unemployment benefits of a non-English speaking
migrant farmworker who lived in Puerto Rico five months a year) and Garzon
v. Bd. of Review, 370 N.J. Super. 1, 7-8,10 (App. Div. 2004) (remanding to the
Board to allow claimant to show good cause why she filed a late appeal of the
Board's dismissal of her claim given the inadequate notice to her that she could
present good cause for her late filing).5 She argues her uncontradicted testimony
4
Wright cited an unpublished decision of this court, which in accordance with
our rules has no precedential value. R. 1:36-3.
5
In addition, Wright relies on an unpublished decision. See R. 1:36-3.
A-0036-18T1
11
proved by a preponderance of evidence that she attempted to report to the
Division but the agency's documented issues with its reporting system thwarted
her numerous attempts to report. She further argues her depression and anxiety,
triggered by being unemployed and thinking she was disqualified from benefits,
are a disability that warrant good cause for not reporting. In addition, she
contends the Board's use of confidential communications to the Appeal Tribunal
violated state law and her constitutional rights.
The Board argues it did not credit Wright's testimony seeking to establish
good cause for failing to report between October 9, 2016 through January 21,
2017. The Board maintains her erroneous belief that she was no longer eligible
for benefits, based upon receipt of the October 4, 2016 decision indicating she
was disqualified for eight weeks, does not constitute good cause for not
reporting. Moreover, the Board asserts Wright's alleged anxiety and depression
are irrelevant because she testified she was able to complete "similarly small
tasks such as applying for jobs via email." As to Wright's argument regarding
confidential communications between the Board and the Appeal Tribunal, the
Board contends her assertions are based on documents which may be privileged
and therefore are outside the scope of this appeal.
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The unemployment benefits sought by Wright are pursuant to the
Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -24.30, social
legislation enacted to provide benefits to qualified individuals for periods of
unemployment so they can maintain purchasing power and limit the serious
social consequences of poor relief assistance. N.J.S.A. 43:21-2. In order to be
eligible for benefits under the UCL, an unemployed person must file a claim
with the Division and continue to report to the Division "in accordance with
such regulations as the [D]ivision may prescribe." N.J.S.A. 43:21-4.
Once a claim is approved, it is required that:
(a) Individuals shall report as directed by the Division
as to date, time, and place in person, by telephone, by
mail, via an Internet application or as the Division may
otherwise prescribe.
(b) An individual who fails to report as directed will be
ineligible for benefits unless, pursuant to a fact-finding
hearing, it is determined that there is "good cause" for
failing to comply. For the purposes of this subchapter,
"good cause" means any situation which was
substantial and prevented the claimant from reporting
as required by the Division.
[N.J.A.C. 12:17-4.1.]
Additionally, N.J.A.C. 12:17-4.3(e) and (h) provides:
(e) An individual must be in continuous reporting status
to be eligible for unemployment benefits. Once an
individual is ineligible for benefits because of his or her
A-0036-18T1
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failure to comply with reporting requirements for a
designated benefit period, he or she may reassert his or
her claim for later weeks of unemployment only if the
individual contacts the Division within 14 days of the
subsequent two-week designated benefit period. An
individual who is ineligible for the second designated
benefit period for failure to comply shall continue to be
ineligible for benefits until such calendar week in
which he or she reports or otherwise contacts the
Division to claim benefits.
....
(h) A claimant who fails to comply with reporting
requirements by any method directed by the Division
shall report to the Division to claim benefits. Unless the
claimant has "good cause," as defined in N.J.A.C.
12:17-4.1, for failing to report timely by the method
directed by the Division, the claimant shall be ineligible
for benefits for the designated benefit period.
We discern no reason to conclude the agency misapplied these guidelines
or that its ruling was not supported by credible evidence that Wright was
ineligible for benefits from October 9, 2016 through January 21, 2017, because
she failed to show good cause for not reporting. See Ardan v. Bd. of Review,
231 N.J. 589, 605 (2018) (ruling we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly legal issue," quoting
In re Election Law Enf't Comm'n Advisory Op. No. 001-2008, 201 N.J. 254, 262
(2010)); see also, Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (holding
"[i]f the Board's factual findings are supported 'by sufficient credible evidence,
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courts are obliged to accept them,'" quoting Self v. Bd. of Review, 91 N.J. 453,
459 (1982), and the agency's decision may not be disturbed unless shown to be
arbitrary, capricious, or unreasonable). Wright's failure to report was not the
result of any lack of information provided by the agency as was the situation in
Rivera and Garzon. Nor was she misinformed by the Division. We find nothing
arbitrary, capricious, or unreasonable concerning the rejection of Wright's good
cause explanations, which the Board determined was inconsistent and not
credible.
Lastly, we do not address Wright's argument that the Board made
confidential communications to the Appeal Tribunal in violation of state law
and her constitutional rights because they lack sufficient merit to warrant
discussion in in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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