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Rostran v. Florida Unemployment Appeals Com'n

Florida Court of Appeal, Third District

December 14, 2011

Claudia ROSTRAN, Appellant,
v.
The FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Holiday CVS, LLC., Appellees.

An Appeal from the Florida Unemployment Appeals Commission.

Claudia Rostran, in proper person, for appellant.

Louis A. Gutierrez, Senior Attorney, for appellee Florida Unemployment Appeals Commission.

Page 845

Before WELLS, C.J., and CORTIÑ AS and SALTER, JJ.

WELLS, C.J.

Affirmed. See Quintana v. Fla. Unemployment Appeals Comm'n 29 So.3d 446, 446 (Fla. 3d DCA 2010) (" As nothing in the record supports a finding that the claimant's notice was not provided to her in a timely manner, and Florida law does not permit good cause exceptions to the dismissal rule, we are bound to affirm the order of the Appeals Commission below." ); Espinosa v. Cableoptics, Inc., 807 So.2d 195, 196 (Fla. 3d DCA 2002) (" Espinoza [sic] never claimed that the referee's decision was not mailed to him, or mailed to him untimely, even though the U.A.C. did give him an opportunity to show cause why his appeal should not be dismissed as untimely, prior to its dismissal of the same. For this reason, we agree with the appellees that an evidentiary hearing on the timeliness issue would serve no useful purpose." ); see also de la Torre v. Siguanea, LLC, 10 So.3d 1164, 1164 (Fla. 3d DCA 2009) (" Because de la Torre does not dispute that her notice of appeal was untimely, we must accept the referee's finding of untimeliness and affirm the Commission's order." ); Exposito v. S. Fla. Hotels, Inc., 994 So.2d 1117, 1117 (Fla. 3d DCA 2007) (" We agree that the late filing deprived the referee of jurisdiction to consider the merits of Exposito's claim." ); Lawson v. Elizabethtown Gas Co., 913 So.2d 738, 738 (Fla. 3d DCA 2005) (" Lawson does not dispute that her notices of appeal were untimely. We must, therefore, accept the referee's findings of untimeliness and affirm the Unemployment Appeals Commission's orders." ).

SALTER, J. (concurring).

I reluctantly concur in the result in this case, but write separately to emphasize again (a) that the Agency for Workforce Innovation should adhere to its own rules and procedures in unemployment compensation benefits appeals, and (b) that claimants should be allowed more time within which to seek advice and to prepare and file their administrative appeals, so that such appeals are resolved on the merits rather than through procedural defaults.

Ms. Rostran's claim for unemployment compensation benefits was initially granted by the Agency. She had worked for a CVS pharmacy for over four years before her employment was terminated. On the basis of information which has not been made a part of the record,[1] the Agency reconsidered and issued a revised determination that Ms. Rostran voluntarily quit and was thus ineligible for the benefits.

That revised determination included a computer-generated " date mailed" of November 24, 2009. Ms. Rostran's electronic appeal was transmitted on January 7, 2010. Because this was over twenty days after the date shown on the Agency's revised determination, the Agency's automated on-line appeal form included a " late explanation" section for Ms. Rostran to complete. Her explanation stated: " I file late because I didn't understand really well how to the appealing process and I call a lot of times at the automated phone system

Page 846

to see if any representative could help me but it was always busy."

A telephonic hearing was noticed, but the employer did not participate. Ms. Rostran, a non-attorney representing herself, was the only witness allowed to testify, despite Ms. Rostran's proffer that her mother would substantiate her claim that she was sick and under a doctor's care at the time CVS claimed she had voluntarily quit her job. The referee limited the hearing to the timeliness of the appeal. He asked whether Ms. Rostran " first received a copy of this determination" on the " date mailed" shown on the redetermination, and she answered " yes" (though this was obviously impossible, as the letter could not have reached Ms. Rostran in Miami on the same day it was mailed from Tallahassee). The referee then asked Ms. Rostran why it had taken her more than twenty days to submit her appeal, and she testified:

It didn't— I didn't file it because I didn't really understand how was the process and, you know, I call a lot of times, you know, at the number to— the 1-800 number for the Unemployment Compensation and, you know, it was always busy until I spoke with a representative and, you know, they ...

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