Jennifer Hernandez v. Director, Division of Workforce Services

2021 Ark. App. 434

• Court: Court of Appeals of Arkansas
• Decided: November 10, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 434 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document 2023.07.14 11:30:18 -05'00' DIVISION II 2023.003.20244 No. E-21-108

Opinion Delivered November 10, 2021

JENNIFER HERNANDEZ APPEAL FROM THE ARKANSAS APPELLANT BOARD OF REVIEW

V. [NO. 2021-BR-00132]

DIRECTOR, DIVISION OF WORKFORCE SERVICES REMANDED TO SETTLE AND APPELLEE SUPPLEMENT THE RECORD

BART F. VIRDEN, Judge Appellant, Jennifer Hernandez, appeals an adverse ruling of the Board of Review

(Board) affirming the Appeal Tribunal’s (Tribunal’s) dismissal of her unemployment claim

as untimely. Because our record does not contain a transcript of the December 3, 2020

hearing conducted by the Appeal Tribunal on the timeliness issue, we remand to the Board

to settle and supplement the record to include the transcript of that hearing.

On July 22, 2020, the Division of Workforce Services issued a “Notice of Agency

Determination” disqualifying Hernandez from receiving unemployment benefits.

Hernandez filed an untimely appeal of the determination to the Appeal Tribunal. On

December 3, 2020, the Tribunal conducted a hearing pursuant to Paulino v. Daniels, 269

Ark. 676, 559 S.W.2d 760 (Ark. App. 1980) to determine whether the untimely filing of

the appeal was due to circumstances outside Hernandez’s control. The Tribunal found that

1 the untimely filing was not a result of circumstances beyond her control, and it dismissed

her appeal in a decision with a mailing date of December 4, 2020.

Hernandez then filed an untimely appeal to the Board. The Board held a Paulino

hearing on February 1, 2021, to determine the circumstances of this late appeal. Ultimately,

the Board found that her untimely Board appeal was due to circumstances beyond her

control: the Tribunal decision had been mailed to Hernandez in English, but she required

a Spanish translator to understand and act on her right to appeal. The Board then reviewed

the Tribunal’s decision, including the testimony submitted at the Tribunal hearing, and it

affirmed the Tribunal’s dismissal of Hernandez’s claim for unemployment benefits.

Hernandez has now appealed from the Board’s decision denying her claim for

benefits on the basis that her appeal to the Tribunal was untimely. However, because our

record does not include a transcript of the December 3, 2020 Paulino hearing in which the

timeliness issue before the Tribunal was presented—and later considered by the Board in

reaching its decision to affirm—we cannot reach the merits of her claim at this time.

This case is therefore remanded to the Board to settle and supplement the record to

include the transcript of the December 3, 2020 hearing within thirty days.

Remanded to settle and supplement the record.

HARRISON, C.J., and GRUBER, J., agree.

Jennifer Hernandez, pro se appellant.

Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.