Tomlinson v. Department of Workforce Services , 708 Utah Adv. Rep. 27 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Latecia Tomlinson, ) PER CURIAM DECISION
)
Petitioner, ) Case No. 20120183‐CA
)
v. ) FILED
) (May 17, 2012)
Department of Workforce Services, )
) 2012 UT App 148Respondent. )
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Original Proceeding in this Court
Attorneys: Latecia Tomlinson, West Valley City, Petitioner Pro Se
Amanda B. McPeck, Salt Lake City, for Respondent
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Before Judges Orme, Thorne, and Roth.
¶1 Latecia Tomlinson petitions for review of the final order of the Workforce
Appeals Board (the Board), which determined that it lacked jurisdiction to consider the
merits of her appeal. This matter is before the court on its sua sponte motion for
summary disposition based on the lack of a substantial question for review.
¶2 The administrative law judge (ALJ) issued a decision on December 19, 2011,
finding that Tomlinson had committed fraud by failing to report her work and earnings.
The ALJ’s decision indicated that if Tomlinson sought to appeal the decision, she
needed to file an appeal with the Board within thirty days of December 19, 2011.
Therefore, Tomlinson was required to file her appeal on or before January 18, 2012. The
Board did not receive Tomlinson’s appeal until January 23, 2012. After receiving the
appeal, the Board requested information concerning why her appeal was untimely.
Tomlinson responded that her grandfather had passed away and because of that she
had placed her personal affairs on hold. After reviewing her response, the Board
determined that Tomlinson failed to timely file her appeal from the decision of the ALJ.
It also determined that Tomlinson had failed to demonstrate good cause for the
untimely appeal. As a result, the Board determined that it did not have jurisdiction to
resolve Tomlinson’s appeal.
¶3 A late appeal may be considered by the Board if a claimant can show good cause
for the delay. See Autoliv ASP, Inc. v. Workforce Appeals Bd., 2000 UT App 223, ¶ 12,
8 P.3d 1033. Good cause for delay in filing an appeal is limited to circumstances where
the claimant received the determination after the appeal time had run, the delay was
caused by circumstances beyond the claimant’s control, or the claimant filed late under
circumstances that were compelling and reasonable. See Utah Admin. Code R994‐508‐
104. Tomlinson claimed that she did not file the appeal timely because her grandfather
had passed away and she had placed her personal affairs on hold while she was dealing
with family affairs.
¶4 The Board determined that Tomlinson had failed to demonstrate how her
grandfather’s passing had prevented her from filing a timely appeal. Specifically, the
Board determined that Tomlinson failed to provide any details concerning the timing of
her grandfather’s passing or how his passing prevented her from completing the rather
simple appeal process. Accordingly, the Board found that Tomlinson did not have
good cause for the untimely filing of her appeal.
¶5 Tomlinson has failed to demonstrate that the Board abused its discretion in so
finding. See Armstrong v. Department of Emp’t Sec., 834 P.2d 562, 567 (Utah Ct. App.
1992) (determining that a party who filed an appeal one day late because she confused
working days and calendar days did not demonstrate good cause for the untimely
filing); Kirkwood v. Department of Emp’t Sec., 709 P.2d 1158 (Utah 1985) (per curiam)
(affirming the Board’s decision that claimant’s claim of stress from family issues was
insufficient to demonstrate good cause for filing an untimely appeal). Because
Tomlinson failed to demonstrate that she had good cause for the late filing, the Board
20120183‐CA 2
lacked jurisdiction to hear the appeal. See Utah Admin. Code R994‐508‐103; Autoliv,
2000 UT App 223, ¶ 12.
¶6 The Board’s decision stands.
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Gregory K. Orme, Judge
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William A. Thorne Jr., Judge
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Stephen L. Roth, Judge
20120183‐CA 3