GLENN J. LAVENDER VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-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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Affirmed.
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