IVELISSE GARCIA DEPEW v. BOARD OF REVIEW et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2295-05T12295-05T1

IVELISSE GARCIA DEPEW,

Claimant-Appellant,

v.

BOARD OF REVIEW and RESTAURANT

ASSOCIATES,

Respondents-Respondents.

___________________________________

 

Submitted October 30, 2006 - Decided November 15, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Board of Review, Department of Labor, 89,179.

Ivelisse Garcia DePew, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

PER CURIAM

This is an appeal by claimant, Ivelisse Garcia DePew, from a decision of the Board of Review (Board) affirming a decision of the Appeal Tribunal, which held that she was ineligible for additional benefits for up to twenty-six weeks to complete her remedial education or vocational training pursuant to N.J.S.A. 43:21-61, because she failed to establish that she "is unlikely to return to [her] previous employment because work opportunities in [her] job classification are impaired by a substantial reduction of employment at the worksite." N.J.S.A. 43:21-60a. N.J.A.C. 12:23-5.1(a)2 provides in pertinent part:

An individual will be eligible for additional unemployment benefits during training only if the individual . . . [i]s permanently separated from employment and is unlikely to return to such employment due to a substantial reduction in work opportunities in the individual's job classification at his or her former worksite.

Initially, we note our limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless "'it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The decisions of administrative agencies carry with them the presumption of reasonableness. See City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539-40, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of proof to establish a right to unemployment benefits is upon the claimant. Zielenski v. Bd. of Review, Div. of Employment Sec., 85 N.J. Super. 46, 51-52 (App. Div. 1964).

Claimant testified during the Appeal Tribunal telephone hearing that she was "fired," along with her immediate manager, from her job as supervisor of a conference center by her employer, Restaurant Associates, based upon allegations of misconduct, without any explanation. Claimant believed that another employee, who was not performing her work, filed an unsubstantiated complaint against both claimant and her boss. According to claimant, she never had any prior incidents, had never been previously written up, and was never given an explanation of her alleged misconduct. The Board agreed with the findings of the Appeal Tribunal that "[t]here was no other reduction in employment at the company."

Our independent review of the record leads us to conclude that claimant's proofs failed to establish that there was a substantial reduction in work at her former place of employment to qualify her for additional benefits. Thus, the Board's decision was not "'arbitrary, capricious or unreasonable or . . . [un]supported by substantial credible evidence in the record.'" In re Taylor, supra, 158 N.J. at 657 (quoting Henry, supra, 81 N.J. at 580). We are therefore required to affirm.

 
Affirmed.

(continued)

(continued)

3

A-2295-05T1

November 15, 2006