Opinion
DOCKET NO. A-2577-14T2
01-04-2017
FRANKLYN D. VEGA-CRUZ, Appellant, v. BOARD OF REVIEW and SUPREME CUTS, LLC, Respondents.
Franklyn D. Vega-Cruz, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). Respondent Supreme Cuts, LLC, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Board of Review, Department of Labor, Docket No. 344,530. Franklyn D. Vega-Cruz, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). Respondent Supreme Cuts, LLC, has not filed a brief. PER CURIAM
Appellant Franklyn D. Vega-Cruz appeals from respondent Board of Review's final agency decision affirming the dismissal of appellant's administrative appeal from a denial of unemployment benefits on the ground the appeal was untimely filed. On appeal, appellant raises the following arguments:
I. CONSIDERATION OF POSSIBLE GOOD CAUSE FOR A CLAIMED LATE UNEMPLOYMENT INSURANCE APPEAL IS SECURED BY THE DUE PROCESS GUARANTEES OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS, AND BY NEW JERSEY STATE REGULATION.
II. GOOD CAUSE FOR LATE FILING PLAINLY EXISTS ON THE FACTS AND LAW APPLICABLE TO THIS CASE.
A. CONTEXT
B. FEDERAL LEGAL IMPERATIVES
C. DEPARTMENT REGULATIONS
D. NEW JERSEY DECISIONAL LAW AFTER RIVERA
For the reasons set forth herein, we reverse and remand for further proceedings.
III. BECAUSE THE NJDOL HAS FAILED TO ABIDE BY STATE AND FEDERAL REQUIREMENTS TO AFFIRMATIVELY PROVIDE LANGUAGE ACCESS TO UI CLAIMANTS, GOOD CAUSE FOR LATE APPEAL MUST BE RECOGNIZED IN THIS CASE.
Appellant worked at Supreme Cuts from October 22, 2009 until March 29, 2011. He maintains his supervisor mistreated employees daily, humiliated him, and terminated his employment by telling him to go home because he no longer had a job. In contrast, Supreme Cuts' human resource generalist maintains appellant quit by "abruptly [leaving] the building without notice at 5:20PM" on March 29, 2011, and never calling or reporting back for work.
Appellant filed a claim for unemployment benefits on March 27, 2011. On April 18, 2011, a Deputy claims he mailed appellant a determination letter disqualifying him from unemployment benefits "on the ground that [he] left work voluntarily without good cause attributable to such work." Appellant maintains he never received the letter.
Nonetheless, appellant appealed the Deputy's determination on July 16, 2011. The Appeal Tribunal scheduled a telephonic hearing for October 14, 2011, but appellant failed to participate. The Tribunal dismissed the appeal "[a]s there was no evidence presented to upset the findings of the Deputy" or disturb his determination. The Tribunal mailed its decision to appellant on October 17, 2011. For good cause shown, the tribunal reopened the matter on November 5, 2011 and held a telephonic hearing on December 2, 2011.
During the hearing, appellant utilized a Spanish interpreter because he "speaks very few English words, . . . does not understand any written English, and has limited Spanish reading skills." The appeals examiner repeatedly asked appellant how he became aware of the option to file an appeal if he never received the Deputy's letter. Appellant never provided the examiner a clear response. The examiner told appellant, "for the record now you are not answering the questions that I'm asking you concerning the appeals letter or rather the letter of determination which was sent to you on April 18th 2011. You're not providing me with any information."
The examiner further stated:
[u]nder voluntary leaving the law provides [t]hat if the claimant leaves the job without good cause [t]hat claimant would be held indefinitely disqualified for benefits [f]rom the date of the leaving [u]ntil the claimant returns to work for at least eight weeks [a]nd earns ten times their weekly benefit rate.
On December 5, 2011, the Tribunal mailed appellant a letter dismissing his appeal because it was not "filed within ten (10) days of the mailing of the determination, or within seven (7) days of the receipt of the determination" and "good cause [had] not been shown for the appeal being filed late." N.J.S.A. 43:21-6(b)(1).
On April 13, 2012, appellant sent a letter to the Tribunal dated January 18, 2012, which stated:
Truly appreciate your attention in this matter of my case reopenning [sic]. As for the past findings of facts, my employer had asked me to go home for my position was terminated. Without any knowledge of my legal rights, I just followed instructions to pack my belongs [sic] and leave immediately. Please understand my job was
important to me in order to provide for my family.
The Board apparently considered appellant's letter as an appeal from the Appeal Tribunal. In a July 13, 2012 letter to appellant, the Board dismissed appellant's appeal because "it was filed subsequent to the expiration of the statutory period of twenty days from the date of mailing of the Appeal Tribunal decision (N.J.S.A. 43:21-6(c))" and appellant did not show good cause for the appeal's late filing. Appellant appealed to the Appellate Division. Vega-Cruz v. Bd. of Review, No. A-6130-11T1 (App. Div. Sept. 12, 2014).
There, we held "nothing in the record suggests . . . appellant was offered an opportunity by the Board to demonstrate good cause for his late appeal" and reversed and remanded the matter "to the Board for reconsideration of the issue of good cause, requiring . . . any supplementation by appellant of his statement of reasons be presented to the Board within twenty days of his receipt of this opinion." Vega-Cruz, supra, slip op. at 3-4.
On September 18, 2014, the Department of Labor and Workforce Development sent appellant a letter advising
your appeal of the Appeal Tribunal decision was filed beyond the twenty (20) day period allowed for a timely appeal to the Board of Review.
. . . . Good cause exists when it is shown that the delay is due to circumstances beyond your control or for circumstances which could not have been reasonably foreseen or prevented. If the appeal is filed beyond the time limit and good cause has not been shown by you, the Board of Review does not have jurisdiction to review the case on its merits and must dismiss your appeal.
Please complete the enclosed certification as to what date you received the Appeal Tribunal decision and what date you filed your appeal to the Board of Review. Be sure to fully explain the circumstances that led to the delay in filing your appeal, so that we can determine whether or not you had good cause for the delay. Also, please explain why you did not participate at the hearing. Again, if good cause is not shown, the appeal must be dismissed by the Board of Review.
Counsel for appellant completed the certification, which stated appellant did not know the date on which he received the Tribunal's decision or the date on which he filed his appeal to the Board. The certification further alleged appellant had good cause to file his late appeal because of his limited English proficiency and lack of English-speaking contacts.
On December 11, 2014, the Board mailed appellant its decision affirming the Tribunal's prior decision to dismiss appellant's appeal "as late without good cause."
The Board noted that to demonstrate good cause, appellant had provided:
a certification in which he identifies himself as a native of the Dominican Republic whose language is Spanish. He explains that although he has lived in the United States for [twenty-two] years, he attended school only to the third grade and has difficulty reading Spanish. He further explains that he has always worked with Spanish speaking employers and employees and cannot speak or read English. He does not specify where he lives but maintains that the majority of the residents in his town are, like him, from the Dominican Republic. [Appellant's] address of record is a town in New York State.
The Board acknowledged the holding in Alicea v. Bd. of Review, 432 N.J. Super. 347, 353 (App. Div. 2013) that a determination in English was inadequate notice for an individual who spoke and wrote only Spanish, resided in a rural part of Puerto Rico, and was poorly educated. The Board distinguished Alicea in three ways:
First, this was not [appellant's] first appeal. He had appealed to the Appeal Tribunal a voluntary quit disqualification outside the statutory appeal period and attended a hearing in which the issue of timeliness was discussed at length. Consequently, we can assume that the experience gave him some understanding of the importance of filing an appeal on time.
Second, the claimant lives in a town in New York. This afforded him the opportunity of finding a person who could translate the Appeal Tribunal decision. If as [appellant] contends, the majority of the town's population were like him, native to the Dominican Republic, surely many of them could read English quite well.
Third, the claimant in Alicea filed his appeal [thirty-four] days after he was denied benefits. Here, the appeal was filed almost [five] months after the Appeal Tribunal issued its decision. This convinces us that [appellant] slept on his rights. We therefore dismiss [appellant's] appeal as late without good cause.
We disagree with the Board's conclusion. N.J.S.A. 43:21-6(c) provides:
Unless such appeal is withdrawn, 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) of this section within 10 days after the date of notification or mailing of the decision for any decision made on or before December 1, 2010, or within 20 days after the date of notification or mailing of such decision for any decision made after December 1, 2010.
In Rivera v. Bd. of Review, 127 N.J. 578 (1992), the Supreme Court established a "good cause" exception to the twenty-day period for filing appeals under N.J.S.A. 43:21-6(c). The Board thereafter promulgated a regulation, N.J.A.C. 12:20-4.1(h), which states:
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.
As the Board acknowledged in its final determination, Alicea, supra, 432 N.J. Super. at 353, held that a determination in English was inadequate notice for an individual who spoke and wrote only Spanish. We find the Board's reasons for distinguishing Alicea unpersuasive. The Board's "assumption" about what understanding appellant gained from his previous appeal, and its supposition about other people in appellant's town, are speculative. Further, the Board's determination appellant "slept on his rights" begs the question of whether he was ever properly informed of his rights. Accordingly, we reverse the Board's decision and remand this matter for a full and fair consideration of the merits of appellant's appeal. In view of that disposition, we need not reach appellant's other arguments.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION