KEONA WRIGHT VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 12, 2020
• Docket: A-0036-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0036-18T1

KEONA WRIGHT,

Appellant,

v.

BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR, and CARRIER CLINIC,

Respondents. _____________________________

Argued December 9, 2019 – Decided February 12, 2020

Before Judges Sumners and Natali.

On appeal from the Board of Review, Department of Labor, Docket No. 113,887.

Kevin J. Mahoney argued the cause for appellant (Keona Wright, on the pro se briefs).

Jana Rene DiCosmo, Deputy Attorney General, argued the cause for respondent Board of Review (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Jana Rene DiCosmo, on the brief). Respondent Carrier Clinic has not filed a brief.

PER CURIAM

Appellant Keona Wright challenges the final decision of the Board of

Review of the Department of Labor and Workforce Development (Board)

affirming the decision of the Appeal Tribunal disqualifying her from receiving

unemployment benefits from October 9, 2016 through January 21, 2017.

Because there is credible evidence in the record to support the Board's

determination of Wright's ineligibility for benefits during that period due to her

failure to show good cause why she did not 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.1 On July 17, 2016, Wright successfully filed a claim for

benefits with the Division after being separated from work. On August 19, 2016,

the Deputy Director of the Division (Deputy) determined Wright was eligible

for benefits. That determination was amended when the Division notified

1 The Appeal Tribunal conducted hearings on April 5, 2017, May 4, 2017, and April 25, 2018. A-0036-18T1 2 Wright on or about October 4, 2016, that she was disqualified from receiving

benefits for eight weeks because she was discharged from her former

employment for simple misconduct connected with the work. 2

Prior to the disqualification notice, Wright had continued to report to the

Division as required until September 10, 2016. According to Wright, she was

notified about a meeting with the Division to assess her re-employment efforts,

but she was not able to attend. She stated she got lost on the way to the meeting

and didn't know where she was, and "called the number of the woman [at the

Division.] I think it was a woman[. I]t was a long time ago."3 She was not able

to reach anyone to figure out where she was supposed to be, and she never heard

about a meeting again after that.

Knowing she was required to report weekly, Wright claimed she was

unable to report online the week after September 10, because she didn't input all

her information into the online system. In response to an error message on her

computer, she called the Division but was unable to speak to someone, as she

got an automated message telling her "to file online from the phone and then

2 A copy of this notification was not provided in the record. 3 The Appeal Tribunal hearing transcripts contain ellipses, which may suggest a pause in the witnesses' testimony. For the reader's convenience, we have removed them here and throughout this opinion. A-0036-18T1 3 [she] found another number on the website." She called the other number and it

continued to ring with no response. Thereafter, she maintains she tried reporting

online a few other times that week and the following week but to no avail.

Wright claimed she was unaware she could report by going to a local Division

office, and her further attempts to report through the Division's automated

system were futile.

To evidence her attempts to report by phone, Wright provided records of

her telephone calls from September 23 to September 28, 2016 and January 25 to

January 27, 2017. When asked about this four-month gap, Wright stated:

I tried online again . . . a couple of more times until I think around . . . . [Y]ou want specific dates[,] hold on one second. Let me see[.] [L]ooking at a calendar. . . . Sunday, Monday[,] this is the day I called. So[,] since I was used to reporting on like Sundays . . . October 2 . . . I most likely tried again. You know . . . I attempted it weekly until I received my notice.

....

[T]hen it wouldn't even let me like log into the system.

Like I couldn't even log in at one point in time[,] like my information didn't send me to the claim benefits screen.

A-0036-18T1 4 Wright also testified she felt despondent and experienced anxiety and

depression due to her termination and belief that the October 4, 2016 notification

advised she was permanently disqualified for benefits. She claimed it was not

until her counsel informed her in January 2017, that she learned her

disqualification was just for eight weeks. When asked by the claims examiner

if her mental state affected her ability to report for benefits, Wright first replied

"no . . . it only takes five seconds to write up an email and attach a resume . . . ."

In response to the claims examiner's follow-up question seeking clarification

about the impact of her alleged anxiety and depression, Wright responded "the

only way I can answer this question is did it impact my ability to do so, yes. Did

it stop me from doing so[,] it probably would have but like I said . . . I'm a more

positive person."

In explaining her sporadic attempts to report after October 10, 2016,

Wright replied:

I want to say . . . this specific date thing is . . . what ties me up because I can tell you month, but it's just those days[.]

[M]y last attempt trying online was in January before I finally reached the number. It was January.

A-0036-18T1 5 It was between January 17 and . . . 26. I know because that's when I was kind of informed that I could still receive my benefits. So I went online to try and see if I was still able to log in[,] if I was able to get that screen, because if I was able to still receive my benefits than I should be able to log on and go online and continue the process that I had been . . . in like July, and June, and August.

Wright claimed she continued her attempts to report online from

November 2016 through January 2017. When asked if the last time she tried to

report online was December, Wright stated, "with my personality I most likely

probably would have tried on Christmas. . . ."

Regarding her telephone reporting attempts between September 27, 2016

and February 18, 2017, Wright testified:

I know I did. It is just what number did I call 'cause I do recall calling a number and then do recall it not giving me any contact with a human being and then searching the another number[,] receiving another number and finally reaching someone, but[,] what number was it?

I'm thinking[,]. . . I'm relating it to other things in my mind because I remember having a phone call conversation and I remember trying to call[,] I want to say around Valentine's Day. [L]ike in the middle of February . . . I was trying to see if I can access the record and give you a phone number that I called, but[,] I do remember calling a number and then that number

A-0036-18T1 6 didn't pan out and then calling another number which led me to my February[.]

According to the Division, Wright's claim for benefits was reopened as of

February 19, 2017 because she reported during the week ending February 25,

2017. Wright later received notice from the Deputy on March 10, 2017, advising

her she was ineligible to receive benefits from September 11, 2016 through

February 18, 2017 because she did not report. Wright appealed the

determination to the Appeal Tribunal.

The ensuing Appeal Tribunal telephonic hearing was adjourned to allow

Wright time to obtain phone records. After the continued hearing, the Appeal

Tribunal issued a May 9, 2017 decision finding Wright was eligible for benefits

from September 11, 2016 through October 8, 2016 but ineligible for benefits

from October 9, 2016 through February 18, 2017. Wright's claim was remanded

to the Deputy to determine whether Wright was eligible for benefits for the later

period. Wright appealed to the Board.

On March 23, 2018, the Board decided additional testimony from Wright

was needed and remanded the case to the Appeal Tribunal to "for a hearing and

a decision on all issues."

On April 24, 2018, Wright's counsel, emailed the Board claiming it was

"acting in this case in a way in which impinges on the regulatory, due process

A-0036-18T1 7 and procedural rights of Ms. Wright, as well as similarly situated claimants with

remands." The email was apparently referencing confidential communications

the Board shared with the Appeal Tribunal. The record includes an unsigned

and undated 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 of Review 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.

Pursuant to N.J.S.A. 43:21-10(d), the Board supervises the work of the Appeal Tribunal. Moreover, decisions of the Appeal Tribunal that are not appealed become decisions of the Board of Review. 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.

A-0036-18T1 8 The next day, April 25, Wright had a telephonic hearing before the Appeal

Tribunal. That same day, the Appeal Tribunal issued a decision reiterating its

earlier ruling that Wright was eligible for benefits from September 11, 2016

through October 8, 2016; finding Wright's credible testimony demonstrated she

had good cause for failing to report during that time period . Wright was also

awarded benefits from January 22, 2017 through February 18, 2017, because she

attempted to report on January 26, 2017. However, the Appeal Tribunal ruled

Wright was ineligible for benefits from October 9, 2016 through January 21,

2017 because her inconsistent testimony failed to establish good cause for not

reporting.

The Appeal Tribunal reasoned:

Although [Wright] testified that she may have made attempts to report for benefits two times a month, she could not provide specific dates of these attempts or the calendar weeks in which these alleged attempts were made. [Wright's] testimony of any attempts to report for benefits after [October 04, 2016] was extremely vague during the initial hearings. [Wright] used language such as "probably" and "may have" when describing alleged attempts to report after [October 04, 2016]. [Wright] admitted that after she received the decision holding her disqualified for benefits on the ground that she was discharged for simple misconduct connected with the work, she believed that the disqualification period was indefinite[,] and she became despondent. During the hearing on [April 25, 2018], when asked when she made attempts to report

A-0036-18T1 9 for benefits from [October 9, 2016] through [February 18, 2017], [Wright] testified that she remembered making attempts in the beginning of [February 2017], which was her birthday. During that hearing, she did not testify to any attempts made to report for benefits prior to [February 2017]. Thus, her testimony that she made attempts to report for benefits between [October 9, 2016] through [January 21, 2017] was inconsistent and is not found to be credible. Consequently, her contention is rejected.

[Wright] contended that she has shown good cause for failing to report for benefits from [October 09, 2016] through [January 21, 2017] because she became depressed and anxious after she was discharged from her former employer. However, when asked directly if her medical condition made her unable to report for benefits during the time period in question, she testified that she was able to complete this type of small task. It is noted that had [Wright] been unable to report for benefits during that time period, then she would not have met the requirement of being able to work, which would bar her from receipt of benefits. Hence, [Wright's] contention is rejected.

The Appeal Tribunal found there was no good cause for Wright's failure

to report after receipt of the October 4, 2016 disqualification notice until January

26, 2017 because the notice was clear that she was disqualified for benefits for

only eight-weeks due to her termination for simple misconduct. Wright

appealed the decision to the Board.

A-0036-18T1 10 On July 20, 2018, the Board affirmed the Appeal Tribunal's April 25, 2018

decision. Two weeks later, Wright's counsel requested the Board reopen and

reconsider its decision.4 The Board denied the request. This appealed followed.

II

On appeal, Wright argues the Board's decision denying her benefits from

October 9, 2016 through January 21, 2017 was incorrect because it did not apply

the proper good cause test. To support her claim she was substantially prevented

from reporting, as required to find good cause, Wright cites 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).5 She argues her uncontradicted testimony

4 Wright cited an unpublished decision of this court, which in accordance with our rules has no precedential value. R. 1:36-3. 5 In addition, Wright relies on an unpublished decision. See R. 1:36-3. A-0036-18T1 11 proved by a preponderance of evidence that she attempted to report to the

Division but the agency's documented issues with its reporting system thwarted

her numerous attempts to report. She further argues her depression and anxiety,

triggered by being unemployed and thinking she was disqualified from benefits,

are a disability that warrant good cause for not reporting. In addition, she

contends the Board's use of confidential communications to the Appeal Tribunal

violated state law and her constitutional rights.

The Board argues it did not credit Wright's testimony seeking to establish

good cause for failing to report between October 9, 2016 through January 21,

2017. The Board maintains her erroneous belief that she was no longer eligible

for benefits, based upon receipt of the October 4, 2016 decision indicating she

was disqualified for eight weeks, does not constitute good cause for not

reporting. Moreover, the Board asserts Wright's alleged anxiety and depression

are irrelevant because she testified she was able to complete "similarly small

tasks such as applying for jobs via email." As to Wright's argument regarding

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.

A-0036-18T1 12 The unemployment benefits sought by Wright 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.

Once a claim is approved, 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(e) and (h) provides:

(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

A-0036-18T1 13 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 agency misapplied these guidelines

or that its ruling was not supported by credible evidence that Wright was

ineligible for benefits from October 9, 2016 through January 21, 2017, because

she failed to show good cause for not reporting. 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, 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,

A-0036-18T1 14 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). Wright's failure to report was not the

result of any lack of information provided by the agency as was the situation in

Rivera and Garzon. Nor was she misinformed by the Division. We find nothing

arbitrary, capricious, or unreasonable concerning the rejection of Wright's good

cause explanations, which the Board determined was inconsistent and not

credible.

Lastly, we do not address Wright's argument that the Board made

confidential communications to the Appeal Tribunal in violation of state law

and her constitutional rights because they lack sufficient merit to warrant

discussion in in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0036-18T1 15