GLENN J. LAVENDER v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1311-17T1

GLENN J. LAVENDER,

           Appellant,

v.

BOARD OF REVIEW,
and MORRIS VIEW
HEALTH CARE,

           Respondents.


                    Argued December 5, 2018 – Decided February 4, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from the Board of Review, Department of
                    Labor, Docket No. 126,664.

                    Glenn J. Lavender, appellant, argued the cause pro se.

                    Shareef M. Omar, Deputy Attorney General, argued the
                    cause for respondent Board of Review (Gurbir S.
                    Grewal, Attorney General, attorney; Melissa H. Raksa,
                    Assistant Attorney General, of counsel; Shareef M.
                    Omar, on the brief).
              Respondents Morris View Healthcare and SDH
              Services, LLC, have not filed briefs.

PER CURIAM

        Glenn J. Lavender appeals from an October 5, 2017 agency decision of

the Board of Review declining to reopen its prior affirmance of the Appeal

Tribunal's determination disqualifying Lavender from Additional Benefits

During Training (ABT). We affirm.

        On May 19, 2016, Lavender was terminated from employment as a boiler

operator because he falsified information on his employment application. 1

Because of the nature of the termination, misconduct, his initial claim for

benefits was suspended until July 9, 2016. Lavender did not challenge the

suspension. By January 2017, Lavender had exhausted his benefits.

        Lavender then enrolled in a training program with One-Stop Career

Centers, a Department of Labor (DOL) program. He initially enrolled in a

training course that ended April 20, 2017, and was paid ABT benefits during

that time. He then enrolled in a different year-long training program, but on

August 8, 2017, approximately one month after his start date, was denied

additional ABT. The denial stemmed from the prior suspension of his initial



1
    The nature of the falsification is irrelevant to the outcome of this appeal.
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unemployment benefits, which in turn was the result of the nature of his

termination. See  N.J.S.A. 43:21-60(b).

      On August 9, Lavender appealed to the Appeal Tribunal. He was the only

witness at the proceeding before the hearing examiner. The Tribunal affirmed

the decision, finding he was not immediately eligible for unemployment benefits

and that his termination from work was not symptomatic of a "substantial

reduction" in work opportunities in his field. Lavender was the only employee

laid off in his department. He appealed to the Board, and when it upheld the

Tribunal's decision, asked the Board to reopen the matter, which it declined to

do.

      Lavender raises one point for our consideration:

            THE DECISION OF THE BOARD OF REVIEW IN
            AFFIRMING APPELLANT'S DISQUALIFICATION
            FOR    UNEMPLOYMENT     BENEFITS  WAS
            UNREASONABLE[,]     ARBITRARY[,]  AND
            CAPRICIOUS[,] AND THEREFORE LACKED
            SUFFICIENT CREDIBLE EVIDENCE IN THE
            RECORD AND SHOULD BE REVERSED.

      Our review of administrative agency decisions is quite limited. Brady v.

Bd. of Review,  152 N.J. 197, 210 (1997).          We determine only if the

administrative decision is arbitrary, capricious, or unreasonable.   Henry v.

Rahway State Prison,  81 N.J. 571, 579-80 (1980).         An individual seeking


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unemployment benefits, including ABT, bears the burden of proving that he or

she is entitled to receive them. Brady,  152 N.J. at 218; Bonilla v. Bd. of Review,

 337 N.J. Super. 612, 615 (App. Div. 2001).

      In matters involving unemployment benefits, we accord deference to the

expertise of the Board. Brady,  152 N.J. at 210; Doering v. Bd. of Review,  203 N.J. Super. 241, 245 (App. Div. 1985). We accept the Board's findings where

supported by sufficient credible evidence. Brady,  152 N.J. at 210.

      When the Legislature enacted  N.J.S.A. 43:21-60(a) in 1992, it provided

additional benefits could be paid to an individual who:

            (a) Has received a notice of a permanent termination
            of employment by the individual's employer or has been
            laid off and is unlikely to return to his previous
            employment because work opportunities in the
            individual's job classification are impaired by a
            substantial reduction of employment at the work site[.]

Additionally, the claimant must have been eligible for unemployment benefits

"at the time of layoff or termination[.]"  N.J.S.A. 43:21-60(b).

      The very purpose of ABT is to enable those who are displaced by market

forces to retrain and move on to an economically viable sector. See  N.J.S.A.

43:21-57. In other words, to act as a springboard for workers to engage in new

careers.



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      Lavender's arguments in support of his claim of error do not address either

the effect of the plain language of the statute on his circumstances, or how in his

case providing ABT benefits would advance the legislative purpose.              His

arguments are at best hyper-technical. They in no way defeat the application of

the statute to his case. For example, it makes no difference to the outcome at

this stage that he was not sworn in before the appeals examiner. Similarly, it is

irrelevant that the deputy who made the initial determination that he was

ineligible for benefits, and had to undergo a suspension before receiving them,

did not appear at the hearing regarding ABT benefits.

      Nor was the DOL required to prove that Lavender was suspended for

misconduct. Once he was initially suspended, it sufficed as to ABT. The DOL,

quite simply, is not required to duplicate its efforts involving the same claimant

and precisely the same circumstances. Once he was suspended from receiving

benefits for misconduct, and that suspension was made a matter of record, that

sufficed.

      The real issue is whether Lavender satisfies the statutory requirements.

Clearly he does not.      Therefore, the Board's decision was not arbitrary,

capricious, or unreasonable, and it is amply supported by substantial credible

evidence in the record.


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                                        5
Affirmed.




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