JESSICA SOTO VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2945-18T3
JESSICA SOTO,
Petitioner-Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
AND CAMDEN PORT
SERVICES, INC.,
Respondent-Respondent.
__________________________
Submitted May 6, 2020 – Decided June 24, 2020
Before Judges Koblitz and Whipple.
On appeal from the State of New Jersey Board of
Review, Docket No. 168,774.
Jessica Soto, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Dipti Vaid Dedhia, Deputy
Attorney General, on the brief).
Respondent Camden Port Services, Inc. has not filed a
brief.
PER CURIAM
Claimant Jessica Soto appeals from a February 6, 2019 final decision of
the Board of Review (Board) dismissing her appeal of the Appeal Tribunal's
(Tribunal) adverse ruling dismissing her appeal because it was filed subsequent
to the expiration date of the statutory period. We reverse.
Claimant applied for unemployment benefits, believing she was
terminated from her employment on Wednesday, October 31, 2018. She
received a determination from the Deputy of the Division of Unemployment
Benefits on November 19, 2018, imposing a disqualification for benefits from
October 28, 2018, on the ground that she left work voluntarily without good
cause attributable to such work. She appealed that determination to the
Tribunal, mailing it on December 1, 2018, and participated in a telephone
hearing on January 2, 2019.
According to her telephone testimony, claimant lived in the city of Salem
and worked at Camden Port Services from April 6, 2018, to October 26, 2018,
as a wrapper and stamper. She was dependent on a friend for a ride to work
every day. Claimant called out of work on Monday, October 29, because she
was sick. The next day, claimant's friend's car was repossessed, so claimant
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called out of work again because she did not have a ride. Her employer told her
to come in on Wednesday for a meeting, which she did after finding a ride from
another friend. Through the following testimony, claimant explained how she
was separated from her job:
So I went in Wednesday for my meeting and every time
I tried to speak to [the supervisor], he would cut me off
and yell at me and tell me [t]o wait for him to be done
talking. So every time I thought he was done talking, I
would speak and he would start to say wait, I'm not
done talking. So after—he just kept asking me
questions and I tried to reply, he would just tell me he
wasn't done and then he just sat there and asked me well
are you gonna be able to come to work? I said I'm
gonna try to get a ride from whoever I can until my ride
gets her car back. Well that's not saying that you're
gonna be here every day. I was like well I 'm not saying
that I won't be here. I'm gonna try and get a ride here.
If I can't make it, I'm gonna call and let you know. He
just got very ignorant and rude and told me he didn't
care about my situation and bye and he said it real
ignorantly. So when somebody tells me bye, in my eyes
that's bye get out of my office. You're done.
Claimant did not ask if she was being discharged. She testified that she
asked her supervisor "[do] you want me to leave and he was just like bye, bye."
She never received a discharge letter.
The Tribunal examiner asked claimant when she received the
disqualification notice that was mailed to her November 15, 2018, and claimant
replied she received it on November 19. The examiner asked her if she read the
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appeal instructions carefully, to which claimant replied she did. The examiner
then asked why she waited until December 1, to send the appeal. Claimant
testified:
Well at first I really didn't understand the appeal. So I
had to go ask for help and then once I was explained, I
wrote my appeal and when I was gonna go to the
mailbox that Saturday, it was closed by the time I got
there. So I had to wait till Monday to mail my letter
out.
When the examiner asked what exactly claimant did not understand about the
appeal, claimant answered:
About the appeal like I didn't understand that what do I
write about an appeal? I've never done this before. So
I never had to write an appeal about anything . . . . So
I really didn't understand what I had to do and you know
a lot of people need to see the paper to be able to explain
it to me so I understand it better.
The subsequent exchange in the record reflects claimant could neither
explain nor recall specifically what she did not understand. When pressed by
the examiner about whether she read and understood the instructions, claimant
repeated, "I didn't—no. I didn't understand those if I didn't do it right."
Claimant testified she had no car, no computer, no envelope or stamp, and no
money and "had to wait [until] I could get a ride to the post office and get $1.30
to send it."
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Following the January 2, 2019 hearing, the Tribunal mailed its decision
the same day, denying claimant's appeal based on the following findings:
The Deputy mailed a determination to [the claimant's]
address of record on [November 15, 2018]. The
claimant received the determination on [November 19,
2018]. The claimant submitted her appeal, via
postmarked envelope, on [December 1, 2018]. The
appeal was not filed earlier for two [] reasons. She did
not read her appeal instructions. Also, the claimant did
not understand the reason for her disqualification.
....
N.J.S.A. 43:21-6(b)(1) provides that an appeal
must be filed within ten [] days of the mailing of the
determination, or within seven [] days of the receipt of
the determination. In this matter, the appeal was filed
twelve [] days after the date of receipt based upon both
the claimant's failure to read the appeal instructions,
and her confusion regarding the reason for the
disqualification. Neither of these circumstances reflect
good cause for the appeal being filed late.
Claimant appealed the Tribunal's decision to the Board, and the Board
affirmed the dismissal. This appeal followed.
Our review of administrative agency decisions is limited. Brady v. Bd. of
Review, 152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl.
Prot., 101 N.J. 95, 103 (1985)). "[I]n reviewing the factual findings made in an
unemployment compensation proceeding, the test is not whether [we] would
come to the same conclusion if the original determination was [ours] to make,
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but rather whether the factfinder could reasonably so conclude upon the proofs."
Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.
1985)). "If the Board's factual findings are supported 'by sufficient credible
evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of
Review, 91 N.J. 453, 459 (1982); Goodman v. London Metals Exch., Inc., 86
N.J. 19, 28-29 (1981)). We also give due regard to the agency's credibility
findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997)
(citing Jackson v. Concord Co., 54 N.J. 113, 117 (1969)). Unless the agency's
action "was arbitrary, capricious, or unreasonable, the agency's ruling should
not be disturbed." Brady, 152 N.J. at 210. Applying these standards, we reverse.
Based on our review of the record, we cannot conclude the Board's finding
that claimant's appeal was properly dismissed in accordance with N.J.S.A.
43:21-6(b)(1) is supported by sufficient credible evidence in the record. The
Tribunal's finding that claimant did not read the appeal instructions is not what
claimant said during her sworn hearing testimony. To the contrary, the
transcript reveals she consistently said she did not understand what she read and
that she needed to seek out help to understand it, not that she did not read it.
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Dismissal is vacated, and the matter is remanded for consideration of
merits. We do not retain jurisdiction.
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