P.S. VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the 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-0734-15T1
P.S.,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR and
NBC40 WMGM-TV, ACCESS 1
COMMUNICATIONS,
Respondents.
_________________________________
Submitted December 20, 2016 – Decided June 7, 2017
Before Judges Rothstadt and Sumners.
On appeal from the Board of Review, Department
of Labor, Docket No. 443,570.
Lavan Law, attorneys for appellant (Alaina A.
Gregorio, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Arupa Barua, Deputy Attorney
General, on the brief).
Fox Rothschild, LLP, attorneys for respondent
NBC40 WMGM-TV, Access 1 Communications (Sarah
Beth Johnson, of counsel and on the brief;
Nathan M. Buchter, on the brief).
PER CURIAM
Claimant P.S.1 appeals from the October 19, 2015 Board of
Review final agency decision dismissing her appeal as untimely
pursuant to N.J.S.A. 43:21-6(c). For the reasons that follow, we
affirm.
On August 19, 2013, in a letter by her attorney, P.S. resigned
from her position as an account executive selling advertising for
television station NBC40, which is owned by Access 1.
Approximately three months earlier, P.S. had filed a civil lawsuit
alleging violations of the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14, and the Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49.
Following her resignation, P.S. applied for unemployment
benefits, which Access 1 opposed. On September 24, the Deputy
Director determined that P.S. was disqualified for benefits
pursuant to N.J.S.A. 43:21-5 because she resigned her position
voluntarily, without good cause attributable to the work; there
was no evidence that her employment conditions "were so severe as
to cause [her] to leave available work to become unemployed."
1
Because plaintiff was a victim of sexual harassment, we use
initials to protect her privacy.
2 A-0734-15T1
P.S. appealed to the Appeal Tribunal. During the September
23, 2013 telephonic hearing, she testified that she quit her job
because of sexual harassment by the station's General Manager Ron
Smith and an email interaction between her, NBC40's then News
Manager, and a corporate client, in which she felt her professional
integrity was questioned. Smith, however, was terminated on May
2, over three months before P.S. resigned. According to Alberto
Reira, Access 1's Corporate Controller, P.S.'s sexual harassment
allegations against Smith were unfounded, and his firing was not
related to the allegations.
In a decision mailed on December 9, the Appeal Tribunal's
findings of fact concluded:
The claimant left her job without notice to
her employer after a client had contacted her
regarding inappropriate comments towards him
by a coworker of the claimant. As this
coworker was a director and not an Accounts
Executive as the claimant, the claimant feels
that this coworker should not have intervened
in the servicing of the account and that the
coworker's actions were an attempt to sabotage
the claimant's account in retaliation for
disclosing certain practices that claimant
felt were unethical. The claimant also felt
that certain advances by another coworker to
date the claimant were sexually harassing.
The claimant had informed the employer of the
issue and this coworker was subsequently
discharged for reasons that the employer
indicated [were] unrelated to the claimant's
allegations. Although the claimant's
compensation had increased substantially
since her hire, the claimant tendered her
3 A-0734-15T1
letter of resignation on 08/19/13 citing a
concerted effort by the employer to stifle her
sales in retaliation for disclosing
improprieties of the business.
Consequently, the Appeal Tribunal denied P.S.'s appeal for the
same reason cited by the Deputy Director - she voluntarily left
her employment without good cause attributable to work. The
decision became final when P.S. did not appeal within twenty days
of its mailing.
During the ensuing discovery in her civil suit, plaintiff
claimed that she learned that Smith was terminated due to her
sexual harassment allegations, and that Access 1 provided false
testimony at the Appeal Tribunal hearing. In February 2015, Reira
and Chelsey Maddox-Dorsey, Access 1's Chief Executive Officer,
both gave deposition testimony that Smith was terminated for
sexually harassing P.S.2 After the depositions, Access 1 produced
a copy of its letter to Smith stating that he was terminated due
to "gross misconduct" and violation of the "company's sexual
harassment policy."
2
On January 14, 2016, a jury found no cause of action as to P.S.'s
CEPA claim, but found in her favor as to LAD claims of hostile
work environment and sexual harassment, awarding her compensatory
non-economic damages of $300,000 and punitive damages of $35,000.
During the trial, the judge had granted a directed verdict
dismissing P.S.'s post-employment retaliation claim. Prior to
trial, a different judge had dismissed P.S.'s constructive
discharge claim.
4 A-0734-15T1
On March 23, 2015, P.S. filed an appeal of the Appeal
Tribunal's December 9, 2013 decision with the Board of Review.
She claimed that based on new evidence, Access 1 gave false
testimony at the Appeal Tribunal hearing regarding the reason for
Smith's termination, which constituted good cause to extend the
time to file an appeal, and resulted in her being wrongfully denied
benefits.
On August 25, 2015, citing N.J.S.A. 43:21-6(c), the Board of
Review dismissed the appeal based upon the determination that good
cause had not been shown for P.S.'s delay in filing her appeal.
The Board found that "the significant circumstance in this case
is that [Smith] was discharged four months to the time the claimant
resigned, thus ending the sexual harassment in the workplace."
Therefore, the new evidence does not warrant reconsideration of
the Appeal Tribunal decision." This appeal followed.
Before us, P.S. contends that the Board's decision denying
her appeal as untimely was arbitrary and capricious. She argues
she had good cause to file a late appeal of the Appeal Tribunal's
decision because two years subsequent to the decision, she obtained
evidence in her civil action discovery that Smith was terminated
due to sexual harassment against her, which was contrary to Access
1's hearing testimony. P.S. claims that since she was not aware
of Access 1's reasons for terminating Smith prior to discovery,
5 A-0734-15T1
she could not have foreseen its contradictory deposition
testimony. In addition, P.S. argues that since her unemployment
benefits were denied due to Access 1's misrepresentation of
material facts, she should not be prejudiced by perjured testimony.
We are not persuaded.
We are guided by some well-established principles in our
review of the Board's decision. The scope of appellate review of
an administrative agency's final determination is limited. In re
Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State
Prison, 81 N.J. 571, 579 (1980)). Agency decisions are given a
"strong presumption of reasonableness," and we will not reverse
such a decision unless it was arbitrary, capricious, or
unreasonable, or not supported by evidence in the record. Thurber
v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div.
2006) (first quoting Matter of Vey, 272 N.J. Super. 199, 205 (App.
Div. 1993), aff'd, 135 N.J. 306, 308 (1994); then citing Campbell
v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)), aff'd, 191 N.J.
487, 502 (2007); see also In re Herrmann, 192 N.J. 19, 27-28
(2007).
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 [made by the
Deputy Director]. The parties shall be duly
6 A-0734-15T1
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. Furthermore, 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, we decline to disturb the Board of Review's
finding that P.S. did not establish good cause for filing an appeal
over thirteen months after the Appeal Tribunal's December 9, 2013
7 A-0734-15T1
decision that she was disqualified for benefits. The Appeal
Tribunal found that P.S. voluntarily left her job without good
cause attributable to work because her alleged harasser, Smith,
was terminated there months before she resigned, thereby
discrediting her reason for resigning. Thus, the Appeal Tribunal's
decision was not based upon why Smith was terminated. His
departure, well in advance of P.S.'s resignation, meant that she
had no reason to leave because the source of her alleged pain and
discomfort was no longer present at the workplace. Consequently,
P.S.'s claim that her employer did not acknowledge the true reason
for Smith's termination at the Appeal Tribunal hearing bears no
relevance to her delay in filing a late appeal.
Moreover, P.S.'s contention that she was not aware why Smith
was terminated until after the Appeal Tribunal hearing when Reira
and Maddox-Dorsey were deposed, is belied by her own deposition
testimony. She acknowledged that after Smith was terminated, and
prior to the Appeal Tribunal hearing, he advised her by text
message that he was fired for sexual harassment. Thus, on its
merits, P.S.'s argument fails.
Affirmed.
8 A-0734-15T1