Opinion
DOCKET NO. A-2213-12T2
04-11-2016
SUREKHABEN M. MODI, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and AAA PACKAGING INC., Respondents.
Keith Talbot argued the cause for appellant (Legal Services of New Jersey, attorneys; Mr. Talbot, Anisa Rahim and Melville D. Miller, Jr., on the briefs). Arupa Barua, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Barua, on the brief). Respondent AAA Packaging Inc. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Board of Review, Department of Labor, Docket No. 342,489. Keith Talbot argued the cause for appellant (Legal Services of New Jersey, attorneys; Mr. Talbot, Anisa Rahim and Melville D. Miller, Jr., on the briefs). Arupa Barua, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Barua, on the brief). Respondent AAA Packaging Inc. has not filed a brief. PER CURIAM
Unemployment insurance claimant Surekhaben M. Modi appeals from the Board of Review's decision dismissing as untimely her appeal from an unfavorable determination of the Appeal Tribunal. We reverse and remand.
I.
AAA Packaging, Inc. (AAA), a cosmetics and perfume packaging company, fired Modi on May 13, 2011, after ten years on the job as an assembly line worker. AAA fired Modi because she refused to sign a proposed employment agreement.
Modi speaks Gujarati, a language with roots in India. She cannot read or speak English, except for her name, address, social security number, and telephone number. Nonetheless, AAA presented for her signature an extensive employment agreement in English.
The agreement included a restrictive covenant which barred, for a two-year period, employment or any involvement "directly or indirectly" with "a business similar" to AAA's in a "Sales or Executive" capacity. It also included a clause mandating arbitration of employment discrimination claims and provisions regarding confidentiality of trade secrets and other intellectual property. Further, the agreement was incomplete, and omitted essential terms like her salary, and an appendix that was incorporated by reference. An additional provision indicated that the agreement was not intended for assembly line workers. It stated that the employee was selected "on the basis of his personal qualifications, experiences and skills and that Employer will significantly rely on Employee's ability to meet various sales and marketing goals in the area of Software Consulting and IT Services." Modi filed a claim for unemployment benefits on May 15, 2011. The Division of Unemployment Insurance (Division) scheduled an interview with a claims examiner to determine whether Modi was "separated for misconduct in connection with [her] work." After the interview, the Deputy Director found that Modi was disqualified for benefits. The June 20, 2011 notice of determination stated:
You were discharged for not adhereing [sic] to company policy when you refused to sign a confidentiality agreement required by the employer. You were advised that you would be discharged if you did not sign the agreement. Evidence indicates that the company policy is reasonable and within the scope of the employer's authority. You are disqualified for benefits.Modi also received a refund demand for the $346 in benefits she had received prior to the decision.
On June 28, 2011, Modi filed a timely appeal with the Appeal Tribunal. In a letter to the Tribunal, she stated that her employer asked her to sign the agreement, "[b]ut they never explained us about Agreement." She also contested the Director's finding that she was discharged for misconduct, arguing that the agreement contained various unfair and burdensome terms, and omitted crucial information, such as her salary. She apparently misinterpreted the restrictive covenant to bar any subsequent employment without the employer's permission.
In this and other written communications, we quote Modi verbatim, including any grammatical errors. She received assistance from her husband or son in written communications with the Division.
Witnesses at the hearing included Modi, who appeared with the assistance of a Gujarati interpreter, and a representative of the employer. A transcript of the hearing was not provided to us.
The Tribunal affirmed the Deputy's determination in an October 26, 2011 decision, finding that Modi "was discharged for failing to sign an employee agreement." The Tribunal found she had signed one in July 2010 that was similar to the one proposed, but did not explain why, if she had already signed an employment agreement, a new agreement was required, or how it differed. The Tribunal concluded that, because Modi provided "no good cause . . . for refusing to follow the employer's direction," her action constituted misconduct. She was consequently disqualified from receiving benefits, pursuant to N.J.S.A. 43:21-5(b), for the period between May 8, 2011 and July 2, 2011.
Modi timely appealed to the Board of Review on November 10, 2011. In her appeal letter, she contended she was nervous and had difficulty answering questions at the Tribunal hearing. She reiterated her qualms with the terms of the agreement, including the restrictive covenant, and argued that the agreement was not explained to her.
Six months later, the Board remanded the case to the Tribunal, for "a hearing and decision on all issues," finding there was a need for additional testimony "from the claimant and employer as to whether the claim was discharged for misconduct connected with the work or she left work voluntarily without good cause attributable to the work." The Board did not expressly state whether or not it retained jurisdiction, but directed the Tribunal to transmit any new decision or order to it "immediately upon issuance."
A second hearing was conducted before the Tribunal on May 4, 2012, with Modi again assisted by an interpreter. We also do not have the transcript of that hearing. The Tribunal modified its previous determination, finding that Modi's refusal to sign the employment agreement constituted a voluntary quit. The Tribunal concluded that because "the claimant had control of complying with the employer's directions and remaining employed or not signing and being separated, her refusal is considered a voluntary leaving and not a discharge." Consequently, instead of being temporarily disqualified from receiving benefits for six weeks, she was disqualified until she became reemployed, worked for at least eight weeks, and earned at least ten times her weekly benefit rate. Compare N.J.S.A. 43:21-5(b) (sanction for termination for misconduct), with N.J.S.A. 43:21-5(a) (sanction for voluntary quit without good cause attributable to work). The Tribunal also remanded to the Director to recalculate the Division's refund demand to recover benefit payments made subsequent to the six-week period. The May 4, 2012 decision advised that it would become final unless a written appeal were filed with the Board of Review within twenty days.
Over two months later, on July 12, 2012, a Deputy Director sent Modi a new notice of determination, advising her that, "per [the] appeals examiner," she was disqualified from receiving benefits because she left work voluntarily without good cause attributable to the work. This notice stated that Modi could appeal this determination in writing within seven days after delivery, or within ten days of mailing. We presume the appeal instructions advised Modi to send her appeal to the Appeal Tribunal at its Trenton address. On the same date, the Director separately sent a revised request for refund of $4844.
The record does not include the second page of the notice of determination. We rely on the appeal rights section of the initial notice of determination.
On July 19, 2012, within seven days of receiving the new notice of determination, Modi wrote to the Appeal Tribunal, stating:
I undersigned Surekhaben M Modi, received a letter of ineligible for the unemployment benefits for specific mentioned period of time. However, I am not agreed with the decision of tribunal and would like to file an appeal against tribunal decision. I request you to please arrange a hearing so that I can clarify the doubts.
After retaining counsel, Modi filed a substantive brief before the Board of Review in October 2012. She challenged both the voluntary quit and misconduct determinations. Modi argued that the employment agreement was not a reasonable term of employment, because the agreement was incomplete, certain essential terms were blank, and its terms would be found inequitable and unenforceable, citing settled authority on the enforceability of restrictive covenants. Furthermore, Modi argued that the Board erred in imputing a voluntary quit, as the employer terminated her. Modi distinguished Yardville Supply Co. v. Board of Review, 114 N.J. 371 (1989), which imputed a voluntary quit where a truck driver's DUI conviction resulted in a loss of license and, consequently, his inability to work.
Construing Modi's July 19, 2012 letter of appeal as a response to the May 4, 2012 Tribunal decision, the Board found that no good cause was shown for the late filing and dismissed it as untimely on November 23, 2012.
The Board added that "the claimant's appeal of a subsequent refund determination of the director, mailed July 12, 2012, has been forwarded to the Appeal Tribunal." However, the record does not reflect a separate appeal of the refund determination.
Modi moved for reconsideration. She argued that she had good cause for her late filing to the Board because her limited proficiency in English prevented her from understanding her appeal rights and obligations. She argued that failure to find good cause would violate protections for persons with limited English proficiency established in federal regulations and administrative guidance issued pursuant to Title VI of the Civil Rights Act of 1964.
The Board denied the reconsideration motion on February 4, 2013. Citing Alfonso v. Board of Review, 89 N.J. 41, cert. denied and appeal dismissed, 459 U.S. 806, 103 S. Ct. 30, 74 L. Ed. 2d 45 (1982), the Board held that Modi's language barrier was not good cause for her untimely appeal. This appeal followed.
We granted the Board's motion for a limited remand hearing before the Board on Modi's claim of good cause. We retained jurisdiction. The Board rejected Modi's contention that the failure to provide her a notice in Gujarati denied her right to due process. The Board held that Modi had access to people in her family and community who could have translated the document. Therefore, she lacked good cause for her delay.
Modi presents the following points for our consideration:
I. UNDER FEDERAL LAW, APPELLANT MODI IS ENTITLED TO APPROPRIATE LANGUAGE SERVICES OF INTERPRETATION AND TRANSLATION BY THE NEW JERSEY DEPARTMENT OF LABOR.
II. UNDER NEW JERSEY LAW, APPELLANT IS ENTITLED TO APPROPRIATE LANGUAGE SERVICES OF INTERPRETATION AND TRANSLATION BY THE NEW JERSEY DEPARTMENT OF LABOR.
A. The New Jersey Law Against Discrimination prohibits national origin discrimination which includes language discrimination.
B. New Jersey courts have consistently recognized that language services are essential to the requirements of procedural due process.
C. New Jersey courts have consistently recognized the importance of language services in the unemployment context.
III. UNDER BOTH FEDERAL AND NEW JERSEY LAW, THE GOOD CAUSE EXCEPTION MUST BE RECOGNIZED WHERE THE AGENCY DID NOT
COMPLY WITH FEDERAL AND STATE DUE PROCESS GUARANTEES AND APPLICABLE CIVIL RIGHT[S] LAWS.
Modi argues that the Division was obliged by federal and state anti-discrimination law to provide language services to her. Even if a complete translation was not required, Modi argues that the agency was required to include a so-called "Babel notice" — a list of short warnings in multiple languages alerting the reader that the document contained important information, and the recipient should promptly obtain a translation. She argues that the failure to do so constitutes good cause for her late filing.
The State responds that the agency is not obliged to provide translation, or even a so-called "Babel notice." The State also argues that the absence of language services did not cause the delay, because Modi demonstrated her capacity to file timely appeals, with the assistance of others.
II.
We ordinarily defer to an agency's determination unless it is arbitrary, capricious, or unreasonable, or is unsupported by substantial credible evidence. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). Although we extend some deference to an agency's interpretation of statutes and regulations that it is responsible for enforcing and implementing, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue . . . ." Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (citations omitted).
An initial determination of benefits is final unless a claimant files an appeal within ten days of mailing, or seven days of receipt. N.J.S.A. 43:21-6(b)(1). An appeal to the Board of Review of a decision by the Appeal Tribunal shall be filed in twenty days; otherwise, the Appeal Tribunal's decision shall be final, and deemed a Board decision. N.J.S.A. 43:21-6(c).
Our Supreme Court has recognized that modern notions of due process tempers rigid application of time limitations that may impact a claimant's property interests in unemployment benefits. Rivera v. Bd. of Review, 127 N.J. 578, 585-86 (1992). Consequently, the Division adopted regulations formally authorizing a claimant to file a late appeal upon a showing of good cause. See N.J.A.C. 12:17-4.7; N.J.A.C. 12:20-3.1(i). "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." N.J.A.C. 12:20-3.
Modi raises substantial issues regarding the Division's obligations to meet the language needs of unemployment insurance claimants, which she argues support a claim of good cause. However, we need not reach these issues, as we are convinced that Modi's appeal should be accepted for a different reason.
Although the twenty days for an appeal from the May 4, 2012 Appeal Tribunal decision had expired on May 24, 2012, the Division's July 12, 2012 notice of determination renewed the time for filing an appeal. That notice granted Modi ten days from the date of its mailing to appeal the determination that she left work voluntarily, without good cause attributable to the work, and was therefore disqualified from receiving benefits "per [the] appeals examiner." Measured against that deadline, Modi's appeal was timely.
At oral argument, the Board provided no explanation for why the second notice of determination was sent. We are aware of no regulation that requires the agency to send a revised notice where the Appeal Tribunal or Board modifies or reverses the initial notice of determination. The notice of determination was separate and distinct from the request for refund of unemployment benefits mailed the same day.
We are unaware of a compelling reason why the Division should not be bound by the language of its notice, which, by its own terms, granted Modi a second opportunity to seek review of the Tribunal's determination. The document states that Modi was "hereby notified" that she was disqualified from receiving benefits (emphasis added). The notice in the upper right corner of the document labeled "RIGHT OF APPEAL" clearly states that the claimant can "appeal from this determination . . . ." (emphasis added).
Given our determination, we need not address an alternative ground for finding that the Board should consider the appeal on the merits: Modi had already filed a timely appeal with the Board, which remanded to the Tribunal, while, arguably retaining jurisdiction by directing that the Tribunal's second decision be transmitted. Thus, it is questionable whether a second appeal to the Board was even required to obtain jurisdiction over the appeal. --------
In her substantive appeal on the merits, filed before the Board determined the appeal was late, Modi raised significant arguments as to why her refusal to sign the employment agreement, under the circumstances of this case, did not constitute misconduct, let alone a voluntary quit. Modi is entitled to a decision on the merits of her appeal.
We therefore reverse the Board's determination that Modi's appeal was untimely, and remand to the Board to consider the merits of Modi's appeal from the determination that she left work voluntarily, without good cause attributable to the work.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION