SUSAN CONSALES VS. 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NOT FOR PUBLICATION WITHOUT THE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-2146-18T3
SUSAN CONSALES,

Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR
and MACY'S RETAIL
HOLDINGS,

Respondents.
________________________

Submitted January 8, 2020 – Decided June 11, 2020

Before Judges Fuentes and Mayer.

On appeal from the Board of Review, Department of
Labor and Workforce Development, Docket No.
159,768.

Susan Consales, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Aaron J. Creuz, Deputy Attorney General,
on the brief).
 Respondent Macy's Retail Holdings has not filed a
brief.

PER CURIAM

Appellant Susan Consales appeals from the final decision of the Board of

Review (Board), which found her liable to refund $1,908 in unemployment

compensation benefits. The Board upheld the decision of the Appeal Tribunal

to dismiss appellant's application for relief as untimely under N.J.S.A. 43:21-

6(b)(1). We affirm.

On March 26, 2017, appellant filed a claim for unemployment

compensation benefits and consequently received a check in the amount of

$1,908 for the weeks ending on April 1, 2017 through April 22, 2017. In a

"Request to Refund" letter dated June 11, 2018, the Director of the Division of

Unemployment and Disability Benefits informed appellant that she was not

eligible to receive these benefits and, pursuant to N.J.S.A. 43:21-16(d), was

required to refund the $1,908. The Director apprised appellant that this

determination would be final unless she filed an appeal with the Appeal Tribunal

"within seven calendar days" after its delivery or "within ten calendar days" after

the date the notice was mailed to her last-known address. N.J.S.A. 43:21-

6(b)(1).

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 Appellant appealed the Director's determination to the Appeal Tribunal on

August 11, 2018, fifty-four calendar days from the date she received the

Director's "Request to Refund" letter. In response to a question posed by the

Appeal Tribunal's hearing officer, appellant admitted she read the part of the

Director's letter that provided her with the "instructions about the timeliness" to

appeal the Request to Refund determination. Appellant offered the hearing

officer three explanations for her failure to file a timely appeal: (1) she was busy

with work; (2) she was trying to contact her employer; and (3) she was seeking

clarification about the refund from the unemployment office.

The Appeal Tribunal dismissed the appeal as untimely and without good

cause to warrant the relaxation of the time restrictions in N.J.S.A. 43:21-6(b)(1).

The Appeal Tribunal noted that pursuant to N.J.A.C. 12:20-3.1(h)(i):

A late appeal shall be considered on its merits if it is
determined that the appeal was delayed for good cause.
Good cause exists in circumstances where it is shown
that:

1. The delay in filing the appeal was due to
circumstances beyond the control of the appellant; or

2. The appellant delayed filing the appeal for
circumstances which could not have been reasonably
foreseen or prevented.

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 The Appeal Tribunal found appellant did not present any evidence to

satisfy any of these requirements and dismissed appellant's appeal for lack of

jurisdiction. The Board adopted the Appeal Tribunal's findings and conclusion

of law.

Our review of a State administrative agency’s decision is limited. Brady

v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not disturb the agency’s

decision unless it is "arbitrary, capricious, or unreasonable[.]” Ibid. Our inquiry

is limited to:

(1) whether the agency's action violated the legislative
policies expressed or implied in the act governing the
agency; (2) whether the evidence in the record
substantially supports the findings on which the
agency's actions were premised; and (3) "whether in
applying the legislative policies to the facts, the agency
clearly erred in reaching a conclusion that could not
reasonably have been made on a showing of the
relevant factors."

[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza
v. Board of Trs., Police & Firemen's Ret. Sys., 143 N.J.
22, 25 (1995))]

The Board’s decision to affirm the Appeal Tribunal’s dismissal of

appellant’s appeal is neither arbitrary, capricious, or unreasonable. Appellant

does not dispute her appeal was untimely. The record shows she did not present

sufficient grounds to satisfy the "good cause" standard codified in N.J.A.C.

A-2146-18T3
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12:20-3.1(h)(i). We discern no legal grounds to overturn the Board's decision

finding the Appeal Tribunal correctly dismissed appellant's untimely appeal for

lack of jurisdiction.

Affirmed.

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