                        NOT FOR PUBLICATION WITHOUT THE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-0734-15T1

P.S.,

        Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR and
NBC40 WMGM-TV, ACCESS 1
COMMUNICATIONS,

     Respondents.
_________________________________

              Submitted December 20, 2016 – Decided June 7, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 443,570.

              Lavan Law, attorneys for appellant (Alaina A.
              Gregorio, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent Board of Review
              (Melissa H. Raksa, Assistant Attorney General,
              of counsel; Arupa Barua, Deputy Attorney
              General, on the brief).

              Fox Rothschild, LLP, attorneys for respondent
              NBC40 WMGM-TV, Access 1 Communications (Sarah
              Beth Johnson, of counsel and on the brief;
              Nathan M. Buchter, on the brief).
PER CURIAM

     Claimant P.S.1 appeals from the October 19, 2015 Board of

Review final agency decision dismissing her appeal as untimely

pursuant to N.J.S.A. 43:21-6(c).          For the reasons that follow, we

affirm.

     On August 19, 2013, in a letter by her attorney, P.S. resigned

from her position as an account executive selling advertising for

television   station    NBC40,   which           is   owned   by     Access      1.

Approximately three months earlier, P.S. had filed a civil lawsuit

alleging violations of the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -14, and the Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -49.

     Following her resignation, P.S. applied for unemployment

benefits, which Access 1 opposed.               On September 24, the Deputy

Director   determined   that   P.S.       was    disqualified      for   benefits

pursuant to N.J.S.A. 43:21-5 because she resigned her position

voluntarily, without good cause attributable to the work; there

was no evidence that her employment conditions "were so severe as

to cause [her] to leave available work to become unemployed."




1
  Because plaintiff was a victim of sexual harassment, we use
initials to protect her privacy.

                                      2                                   A-0734-15T1
     P.S. appealed to the Appeal Tribunal.     During the September

23, 2013 telephonic hearing, she testified that she quit her job

because of sexual harassment by the station's General Manager Ron

Smith and an email interaction between her, NBC40's then News

Manager, and a corporate client, in which she felt her professional

integrity was questioned.     Smith, however, was terminated on May

2, over three months before P.S. resigned.     According to Alberto

Reira, Access 1's Corporate Controller, P.S.'s sexual harassment

allegations against Smith were unfounded, and his firing was not

related to the allegations.

     In a decision mailed on December 9, the Appeal Tribunal's

findings of fact concluded:

          The claimant left her job without notice to
          her employer after a client had contacted her
          regarding inappropriate comments towards him
          by a coworker of the claimant.        As this
          coworker was a director and not an Accounts
          Executive as the claimant, the claimant feels
          that this coworker should not have intervened
          in the servicing of the account and that the
          coworker's actions were an attempt to sabotage
          the claimant's account in retaliation for
          disclosing certain practices that claimant
          felt were unethical. The claimant also felt
          that certain advances by another coworker to
          date the claimant were sexually harassing.
          The claimant had informed the employer of the
          issue and this coworker was subsequently
          discharged for reasons that the employer
          indicated [were] unrelated to the claimant's
          allegations.       Although   the   claimant's
          compensation   had   increased   substantially
          since her hire, the claimant tendered her

                                  3                         A-0734-15T1
          letter of resignation on 08/19/13 citing a
          concerted effort by the employer to stifle her
          sales   in    retaliation    for    disclosing
          improprieties of the business.

Consequently, the Appeal Tribunal denied P.S.'s appeal for the

same reason cited by the Deputy Director - she voluntarily left

her employment without good cause attributable to work.          The

decision became final when P.S. did not appeal within twenty days

of its mailing.

     During the ensuing discovery in her civil suit, plaintiff

claimed that she learned that Smith was terminated due to her

sexual harassment allegations, and that Access 1 provided false

testimony at the Appeal Tribunal hearing.   In February 2015, Reira

and Chelsey Maddox-Dorsey, Access 1's Chief Executive Officer,

both gave deposition testimony that Smith was terminated for

sexually harassing P.S.2   After the depositions, Access 1 produced

a copy of its letter to Smith stating that he was terminated due

to "gross misconduct" and violation of the "company's sexual

harassment policy."



2
 On January 14, 2016, a jury found no cause of action as to P.S.'s
CEPA claim, but found in her favor as to LAD claims of hostile
work environment and sexual harassment, awarding her compensatory
non-economic damages of $300,000 and punitive damages of $35,000.
During the trial, the judge had granted a directed verdict
dismissing P.S.'s post-employment retaliation claim.     Prior to
trial, a different judge had dismissed P.S.'s constructive
discharge claim.

                                 4                          A-0734-15T1
     On   March   23,   2015,   P.S.   filed     an   appeal   of   the    Appeal

Tribunal's December 9, 2013 decision with the Board of Review.

She claimed that based on new evidence, Access 1 gave false

testimony at the Appeal Tribunal hearing regarding the reason for

Smith's termination, which constituted good cause to extend the

time to file an appeal, and resulted in her being wrongfully denied

benefits.

     On August 25, 2015, citing N.J.S.A. 43:21-6(c), the Board of

Review dismissed the appeal based upon the determination that good

cause had not been shown for P.S.'s delay in filing her appeal.

The Board found that "the significant circumstance in this case

is that [Smith] was discharged four months to the time the claimant

resigned, thus ending the sexual harassment in the workplace."

Therefore, the new evidence does not warrant reconsideration of

the Appeal Tribunal decision."             This appeal followed.

     Before us, P.S. contends that the Board's decision denying

her appeal as untimely was arbitrary and capricious.                She argues

she had good cause to file a late appeal of the Appeal Tribunal's

decision because two years subsequent to the decision, she obtained

evidence in her civil action discovery that Smith was terminated

due to sexual harassment against her, which was contrary to Access

1's hearing testimony.      P.S. claims that since she was not aware

of Access 1's reasons for terminating Smith prior to discovery,

                                       5                                  A-0734-15T1
she    could   not     have   foreseen       its     contradictory   deposition

testimony.     In addition, P.S. argues that since her unemployment

benefits    were   denied     due   to   Access     1's   misrepresentation    of

material facts, she should not be prejudiced by perjured testimony.

We are not persuaded.

       We are guided by some well-established principles in our

review of the Board's decision.           The scope of appellate review of

an administrative agency's final determination is limited.                In re

Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State

Prison, 81 N.J. 571, 579 (1980)).              Agency decisions are given a

"strong presumption of reasonableness," and we will not reverse

such    a   decision    unless      it   was       arbitrary,   capricious,    or

unreasonable, or not supported by evidence in the record.               Thurber

v. City of Burlington, 387 N.J. Super. 279, 301-02 (App. Div.

2006) (first quoting Matter of Vey, 272 N.J. Super. 199, 205 (App.

Div. 1993), aff'd, 135 N.J. 306, 308 (1994); then citing Campbell

v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)), aff'd, 191 N.J.

487, 502 (2007); see also In re Herrmann, 192 N.J. 19, 27-28

(2007).

       N.J.S.A. 43:21-6(c) provides that:

            an appeal tribunal, after affording the
            parties reasonable opportunity for fair
            hearing, shall affirm or modify the findings
            of fact and the determination [made by the
            Deputy Director]. The parties shall be duly

                                         6                              A-0734-15T1
          notified of such tribunal's decision, together
          with its reasons therefor, which shall be
          deemed to be the final decision of the board
          of review, unless further appeal is initiated
          pursuant to subsection (e) . . . within 20
          days after the date of notification or mailing
          of such decision for any decision made after
          December 1, 2010 . . . .

Despite   the   rigid   language   of   the   Legislature's   statutory

deadline, our case law does provide for exceptions to the filing

requirement in cases where a claimant can demonstrate good cause.

See Rivera v. Bd. of Review, 127 N.J. 578, 589-91 (1992); Garzon

v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004).       We allow

such exceptions when the requirements of due process so demand.

Rivera, supra, 127 N.J. at 590.          Furthermore, the Board has

promulgated regulations governing the review of appeals filed

late, and provides that late appeals may be considered when a

delay in filing is caused by circumstances outside the applicant's

control, or if the delay occurred because of circumstances that

could not have been reasonably foreseen or prevented.          N.J.A.C.

12:20-4.1(h).   These exceptions recognize the need for the Board

to be flexible in light of due process requirements.            Garzon,

supra, 370 N.J. Super. at 7 n.4 (citations and quotations omitted).

     In this case, we decline to disturb the Board of Review's

finding that P.S. did not establish good cause for filing an appeal

over thirteen months after the Appeal Tribunal's December 9, 2013


                                   7                            A-0734-15T1
decision that she was disqualified for benefits.                       The Appeal

Tribunal found that P.S. voluntarily left her job without good

cause attributable to work because her alleged harasser, Smith,

was   terminated        there    months       before     she    resigned,   thereby

discrediting her reason for resigning. Thus, the Appeal Tribunal's

decision   was    not    based   upon     why    Smith    was   terminated.      His

departure, well in advance of P.S.'s resignation, meant that she

had no reason to leave because the source of her alleged pain and

discomfort was no longer present at the workplace.                   Consequently,

P.S.'s claim that her employer did not acknowledge the true reason

for Smith's termination at the Appeal Tribunal hearing bears no

relevance to her delay in filing a late appeal.

      Moreover, P.S.'s contention that she was not aware why Smith

was terminated until after the Appeal Tribunal hearing when Reira

and Maddox-Dorsey were deposed, is belied by her own deposition

testimony.   She acknowledged that after Smith was terminated, and

prior to the Appeal Tribunal hearing, he advised her by text

message that he was fired for sexual harassment.                     Thus, on its

merits, P.S.'s argument fails.

      Affirmed.




                                          8                                 A-0734-15T1
