FANG LIU VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE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- 5896-17T3
FANG LIU,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR, and
VINTAGE PHARMACEUTICALS,
LLC,
Respondents.
______________________________
Argued December 9, 2019 – Decided February 10, 2020
Before Judges Sumners and Natali.
On appeal from the Board of Review, Department of
Labor, Docket No. 133,296.
Kevin J. Mahoney argued the cause for appellant
(Kreindler & Kreindler, LLP, attorneys; Fang Liu, on
the pro se briefs).
Jana Rene DiCosmo, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Jana Rene DiCosmo, on
the brief).
Respondent Vintage Pharmaceuticals, LLC, has not filed
a brief.
PER CURIAM
Appellant Fang Liu challenges the final agency decision of the Board of
Review of the Department of Labor and Workforce Development (Board)
affirming the decision of the Appeal Tribunal disqualifying her for
unemployment benefits from December 6, 2015 to July 16, 2016. Because there
is credible evidence in the record to support the Board's determination that Liu
was ineligible for benefits during that period due to her failure to 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. Liu, whose primary language is Chinese, worked for Vintage
Pharmaceuticals, LLC, as a full-time Principal Research Scientist from
September 2014 until the company ceased operations on November 13, 2015.
Two days after she became unemployed, Liu filed a claim for unemployment
benefits with the Division over the internet, establishing a weekly benefit rate
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of $646. Liu was notified that before she could collect her benefits, she had to
participate in a telephone interview with a claims examiner. She subsequently
received notice by mail scheduling her telephone interview for December 1 at
1:40 p.m. The notice also instructed her to continue reporting to the Division
even if the interview did not occur.
On December 1, a claims examiner telephoned Liu twice, at 1:45 p.m. and
2:15 p.m. The first attempt went straight to Lui's voice message, so the claims
examiner left a message for her stating he would call her again around thirty to
sixty minutes later. During the second attempt to interview, Liu's phone rang
but there was no answer, so the claims examiner left a second voice message
advising her that she could call the Division at the phone number he provided to
reschedule her interview. Both of the claims examiner's calls were recorded by
the Division. Liu maintains she was talking on the phone around twenty minutes
before the scheduled interview time, and when she hung up, she noticed a voice
message left by the claims examiner stating the interview was cancelled and
would be rescheduled.
According to Liu, she called the phone number left by the claims
examiner, and later received a notice in the mail scheduling another interview
for a date in February 2016. Prior to that scheduled interview, Liu claims she
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received another voice message from the Division cancelling the interview and
giving her instructions on how to reschedule the interview. Liu contends she
followed the instructions, but the interview was not rescheduled. She did not
produce a copy of the notice scheduling an interview in February 2016, claiming
she threw it away. The Appeal Tribunal has no record of a notice scheduling an
interview with Liu in February 2016.1
Between March and June 2016, Liu testified she attempted to contact the
Division by telephone around five or six times but could not reach anyone due
to the high volume of phone calls made to the Division. She also claimed she
tried to contact the Division via its online system to no avail. Liu did not visit
a local Division office during that time because she contended the original notice
she received did not advise her to do so.
Eventually, during the second week of July, Liu went to a local office
where she reopened her dormant claim for benefits. The Deputy Director of the
1
In its written decision, the Appeal Tribunal found Liu contacted the Division
on February 1, 2017 to reschedule a telephone interview for February 24, 2017.
(Emphasis added). At argument, we requested supplemental information to
confirm the accuracy of that date to reconcile it with the record. The Board
advised that Liu scheduled an interview for that date after she had exhausted
benefits from her initial November 15, 2015 claim. At her 2017 interview, Liu
revealed she received a severance package from her employer of approximately
$96,144.23, which prompted the Division to determine whether the
compensation affected Liu's entitlement to benefits.
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Division (Deputy) determined she was ineligible to receive benefits from
November 15, 2015 through July 16, 2016, because she failed to contact the
Division every two weeks during that time period in accordance with Division
regulations. Liu administratively appealed the Deputy's decision to the Appeal
Tribunal arguing she had good cause for failing to report because the agency's
system blocked her telephone and internet access to the Division, and later she
argued language barriers complicated the matter.
During the administrative remand, Liu's counsel contacted the Appeal
Tribunal requesting any notes, instructions, or suggested questions proffered by
the Board to the Appeal Tribunal. The record includes an undated unsigned
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 . . .
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.
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Pursuant to N.J.S.A. 43:21-10(d), the Board supervises
the work of the . . . Tribunal. Moreover, decisions of
the . . . Tribunal that are not appealed become decisions
of the Board. . . . 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.
The Appeal Tribunal found Liu was eligible for benefits from November
15, 2015 through December 5, 2015, but ineligible from December 6, 2015
through July 16, 2016. After twice ordering the case to be remanded for further
fact finding, the Board eventually adopted the Appeal Tribunal's decision.
Citing N.J.A.C. 12:17-4.1 and N.J.A.C. 12:17-4.3(b), the Appeal Tribunal
determined Liu made an effort to report during the period of November 15, 2015
to December 5, 2015, but lacked good cause for failing to report from December
6, 2015 through July 16, 2016. In finding Liu ineligible for that period, the
Appeal Tribunal stated:
The evidence presented in this matter does not show
that [Liu] had good cause for failure to claim benefits
as instructed. [Liu] admitted she received the telephone
interview notice from the Division prior to the
scheduled interview time. She also testified that she
read the interview notice. The interview notice clearly
states the individual must continue claiming benefits
while awaiting the telephone interview.
....
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[Liu] contended that she attempted to call the . . .
Division from [March 2016] through [June 2016], but
her contention is rejected. There was no record or proof
provided that attempts were made. Therefore, [Liu] is
ineligible for benefits from [December 6, 2015] through
[July 16, 2016], as she failed to comply with the
reporting requirements of the Division, in accordance
with N.J.A.C. 12:17-4.1.
[Liu] was given an opportunity to provide her phone
records as evidence that she attempted to claim benefits
during the period in question. [She] did not provide
these records and has not met her burden of proof.
[Liu's] contention is that there was an English barrier
and [she] had difficulty understanding the procedure to
claim benefits via phone or internet. It was [her]
responsibility to report to the unemployment office and
seek assistance in order to remain in reporting status.
This appeal ensued.
II
Before us, Liu contends she is entitled to benefits from December 6, 2015
through July 16, 2016 because the Board failed to apply the correct test for
finding she had not established good cause for failing to report to the Division.
She contends her uncontradicted testimony meets her burden of proof to show
that she attempted to report during this time period but was thwarted by the
agency's reporting system. To support her good cause claim that she was
substantially prevented from reporting through no act of her own, Liu cites
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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).2 Liu further claims the
finding that it was her responsibility to obtain assistance was unlawful because
she is a native Chinese speaker and claims to have Limited English Proficiency
(LEP). Finally, she argues the Board's use of confidential communications to
the Appeal Tribunal violated state law and her constitutional rights.
In opposition, the Board argues it was unreasonable for Liu to wait six
months without receiving benefits to finally report to the Division in person in
July 2016, and her language proficiency argument is undercut by her own
testimony that she read the interview notices, followed all the instructions, and
was not confused about the reporting process. As to Liu's argument regarding
2
Liu also relies on an unpublished decision, which in accordance with our rules
has no precedential value. R. 1:36-3.
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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.
The unemployment benefits sought by Liu 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.
After a person has filed a claim for benefits, the Division is directed to
examine the claim and contact the claimant's last employer in order to determine
eligibility under the UCL. N.J.S.A. 43:21-6(b)(1). If an employer fails to
respond, the Division "shall rely entirely on information from other sources,
including an affidavit to the best of the knowledge and belief of the claim ant
with respect to his wages and time worked." Ibid. The Division is directed to
withhold making an initial determination until "all necessary information" is
obtained. Ibid. "If an initial determination cannot be made due to the lack of
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documentation, notification will be sent to the claimant providing a status of the
claim." Ibid.
The Division's regulations prescribe initial interviews with the claimant
for benefits in order to provide:
(1) Notice of the benefits and services available
pursuant to the provisions of this . . . [UCL] . . . ; and
(2) A review of the individual's rights and
responsibilities with respect to the unemployment
compensation, including an explanation of the appeal
process and of the worker profiling system and its
possible impact on the individual.
[N.J.S.A. 43:21-4.1(b)(1)-(2).]
Thereafter, 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 provides:
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(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
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 Board misapplied these guidelines,
or its ruling was not supported by credible evidence that Liu was ineligible for
benefits from December 6, 2015 through July 16, 2016, because she failed to
show good cause for not reporting to the Division during this period . 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,
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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, 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). Liu's failure to report
was not the result of any lack of information provided by the Division as was
the situation in Rivera and Garzon. Nor was she misinformed by the Division.
There was nothing to stop her from making continued efforts to report via
telephone, mail, or personal visits to a Division local office.
We agree with the Division that Liu's language proficiency argument lacks
credibility based on her first telephonic hearing testimony before the Appeal
Tribunal when she testified in English that she read the Division's notices,
followed all the instructions, and was not confused. At no point does she
indicate that she needed an interpreter, or for that matter, requested one. We
find nothing arbitrary, capricious, or unreasonable concerning the rejection of
Liu's good cause explanations, which the Board determined was inconsistent and
not credible.
Lastly, we do not address Liu's argument that the Board made confidential
communications to the Appeal Tribunal in violation of state law and her
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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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