Tekle v. State, Dept. of Employment Security Div. ( 2014 )

 After multiple hearings, the appeals referee concluded that,
giving appellant the benefit of the doubt, there was good cause to deem the
appeal timely because appellant did not fully understand the
unemployment process based on his limited English language abilities. 1
MGM Grand administratively appealed, and on appeal, the ESD's Board
of Review reversed and set aside the appeals referee's decision. The Board
concluded that there was no good cause to extend the filing deadline,
because even if appellant reasonably waited to appeal until his
employment grievance was resolved, there was no explanation or evidence
in the record to justify waiting five weeks after the grievance was resolved
to file the appeal. Appellant filed a petition for judicial review, which the
district court denied. This appeal followed.
In reviewing an administrative decision in an unemployment
benefits matter, this court, like the district court, determines whether the
board acted arbitrarily or capriciously. NRS 233B.135(3)(0; McCracken u.
Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). The administrative
decision will not be disturbed if it is supported by substantial evidence.
Leeson t). Basic Refractories, 101 Nev. 384, 385-86, 705 P.2d 137, 138
(1985).
On appeal, appellant argues that there was no evidence
showing that he understood the appeal process and that he was "forever
foregoing" unemployment benefits by not filing his appeal within 11 days,
and that this constitutes good cause for his untimely appeal. Under NRS
612.495(1), an appeal from an ESD decision must be filed within 11 days
'The appeals referee also decided the merits of appellant's claim, but
as this was not addressed by the ESD, we do not address the merits here.
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after the notice of determination is mailed or personally served. This 11-
day period may be extended, however, for good cause shown. NRS
612.495(1). Having reviewed appellant's arguments and the record on
appeal, we conclude that substantial evidence supports the Board's finding
that appellant did not establish good cause so as to extend the filing
deadline until December 2011. Appellant testified that he received the
ESD decision and understood that he was supposed to file any appeal from
that decision in June 2011, but that he did not file the appeal in June
because he had filed a grievance with the union regarding his termination.
The record also contains a letter from appellant to the ESD explaining
that he did not timely appeal the denial of benefits because he was waiting
for the result of his grievance process. Appellant's grievance was resolved
on November 7, 2011, however, and there is nothing in the record that
explains the delay between the resolution of the grievance and the filing of
the appeal in December 2011. Thus, we conclude that substantial
evidence supports the Board's decision that there was no good cause for
the delay in filing the appeal. See Kolnik v. Nev. Pimp? Sec. Dep't, 112
Nev. 11, 16, 908 P.2d 726, 729 (1996) ("Substantial evidence is that which
a reasonable mind could find adequate to support a conclusion.").
Appellant also argues that the Board erred because it did not
take into account his limited English language abilities. The record,
however, demonstrates that even when testifying in Amharic, appellant's
native language, before the appeals referee, appellant stated that he knew
he was supposed to file the appeal in June. Furthermore, appellant
testified that he utilized English while at work, and the hearing
transcripts show that the appeals referee had to remind appellant to
provide his answers in Amharic through the translator instead of directly
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answering in English. As substantial evidence supports the Board's
determination, we conclude that the Board's decision was not arbitrary or
capricious, and thus, we affirm the district court's denial of appellant's
petition for judicial review.
It is so ORDERED.
Pickering
Parraguirre
,J.
Saitta
cc: Hon. Ronald J. Israel, District Judge
Samuel H. Tekle
State of Nevada/DETR
Jackson Lewis LLP
Eighth District Court Clerk
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