MAURICE MITCHELL VS. BOARD OF REVIEW (NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE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-3252-15T4
MAURICE MITCHELL,
Appellant,
v.
BOARD OF REVIEW, NEW JERSEY
DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT and
EXCELSIOR MEDICAL,
Respondents.
____________________________
Submitted May 8, 2017 – Decided May 22, 2017
Before Judges Haas and Geiger.
On appeal from the New Jersey Department of
Labor and Workforce Development, Docket No.
070,221.
Maurice Mitchell, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Christopher Weber, Deputy
Attorney General, on the brief).
Respondent Excelsior Medical has not filed a
brief.
PER CURIAM
Appellant Maurice Mitchell appeals from a final agency
decision of the Board of Review dated March 18, 2016. The Board
of Review affirmed the Appeal Tribunal's determination
disqualifying appellant from additional benefits during training
(ABT) under N.J.S.A. 43:21-60(b). We affirm.
Between July 2004 and December 23, 2014, appellant worked as
a loader for Excelsior Medical Corporation. On December 23, 2014,
appellant was discharged from employment due to severe misconduct
connected with the work for being "under the influence of alcohol
while on the job." He filed a claim for unemployment benefits as
of December 28, 2014. Following a separate administrative appeal
related to his claim, appellant's discharge was modified to simple
misconduct on April 17, 2015. Appellant's disqualification period
ran from December 28, 2014, through February 21, 2015.
On September 2, 2015, appellant was deemed eligible for the
Unemployed Persons Job Training Program, under the Workforce
Development Partnership Program, N.J.A.C. 12:23. As a result, he
enrolled in four university courses, incurred commuting expenses,
and borrowed money from relatives to purchase books for the
courses. Then, on September 28, 2015, the Department of Labor and
Workforce Development (the Department) determined that appellant
was ineligible for ABT, because he was "not separated from
employment due to a substantial reduction in work opportunities
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in [his] job classification at [his] former worksite." He
administratively appealed that determination.
Following a December 10, 2015 hearing, the Appeal Tribunal
affirmed the decision that appellant was ineligible for ABT because
he was terminated for misconduct, which disqualified him for
benefits at the time of his separation from work and the filing
of his claim. Appellant further appealed and the Board of Review
affirmed on the basis of the record below. This appeal followed.
Appellant now raises the same arguments that he raised before
the agency: (1) he was eligible for ABT under N.J.S.A. 43:21-
16(b); (2) N.J.S.A. 43:21-16(b) is ambiguous and should be
interpreted liberally in favor of benefits; (3) the Department
should be equitably estopped from denying benefits; and (4) the
denial of benefits was arbitrary and capricious, and violated his
due process rights.
We exercise limited review of administrative agency
decisions. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We
simply determine whether the administrative decision is arbitrary,
capricious, or unreasonable. Henry v. Rahway State Prison, 81
N.J. 571, 579-80 (1980). The burden of proof rests with the person
challenging the action. In re Arenas, 385 N.J. Super. 440, 443-
44 (App. Div.), certif. denied, 188 N.J. 219 (2006). An individual
seeking unemployment benefits, including ABT, bears the burden of
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proving that he or she is entitled to receive them. Brady, supra,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 of Review. See Brady,
supra, 152 N.J. at 210; Doering v. Bd. of Review, 203 N.J. Super.
241, 245 (App. Div. 1985). We must accept the Board of Review's
findings if they are supported by sufficient credible evidence.
Brady, supra, 152 N.J. at 210.
Unemployment compensation exists "to provide some income for
the worker earning nothing because he is out of work through no
fault or act of his own." Futterman v. Bd. of Review, 421 N.J.
Super. 281, 288 (App. Div. 2011) (emphasis omitted) (quoting Brady,
supra, 152 N.J. at 212).
In 1992, the Legislature enacted N.J.S.A. 43:21-60(a), which
provides, in pertinent part, that additional benefits shall be
provided to any 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 worksite[.]
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In Bonilla, supra, the court analyzed the purpose of and
eligibility for ABT:
[N.J.S.A. 43:21-60(a)] is economically driven
legislation that has the obvious purpose of
enabling individuals who are economically
displaced from their employment to be paid
benefits while acquiring new skills to reenter
a more marketable area of the economy. It is
thus clear that to obtain additional benefits
during training, the claimant must be fired
or laid off and be unlikely to return to that
job because of a "substantial reduction of
employment at the worksite."
Likewise, the implementing regulation,
N.J.A.C. 12:23-5.1, provides, in pertinent
part , that
(a) An individual will be eligible for
additional unemployment benefits during
training only if the individual:
* * *
2. Is 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;
[Bonilla, supra, 337 N.J. Super. at 615-16.]
Appellant does not meet this eligibility requirement.
Appellant was terminated for misconduct. He was not "economically
displaced" by being fired or laid off due to a "substantial
reduction of employment at the worksite," that made him unlikely
to return to his former employment. See ibid. There was no other
reduction in employment at the worksite in appellant's job
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classification at the time he was discharged. Therefore, appellant
was appropriately found ineligible for additional benefits. See
id. at 616-17.
In addition, in order to be eligible to receive ABT, the
claimant must also be eligible for unemployment benefits "at the
time of layoff or termination[.]" N.J.S.A. 43:21-60(b). Appellant
filed for benefits on December 28, 2014. It is undisputed that
appellant was temporarily disqualified for unemployment benefits
from December 28, 2014, through February 21, 2015. Because of
this initial period of disqualification, appellant was not
eligible for unemployment benefits at the time of his termination,
and, therefore, he was ineligible for ABT. Ibid.
Appellant also argues that N.J.S.A. 43:23-60(b) is ambiguous.
We disagree. The clear and unambiguous language of the statute
provides that in order to be eligible for ABT, the claimant must
be eligible for unemployment benefits "at the time of layoff or
termination[.]" N.J.S.A. 43:21-60(b). Appellant did not meet
this requirement.
Appellant's reliance on Alexander v. Bd. of Review, 405 N.J.
Super. 408 (App. Div. 2009), is misplaced. Alexander interpreted
only N.J.S.A. 43:21-60(a), not N.J.S.A. 43:21-60(b). Id. at 417-
18. In any event, appellant is still ineligible to receive ABT
under subsection (a).
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Appellant further contends that the agency should be
equitably estopped from denying ABT benefits. Appellant's
equitable estoppel argument is not persuasive. The doctrine of
equitable estoppel is rarely invoked against a governmental entity
except in instances to prevent a manifest injustice. Aqua Beach
Condo. Ass'n v. Dep't of Cmty Affairs, 186 N.J. 5, 20 (2006);
Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999). While
equitable estoppel has been applied to prevent recoupment of
unemployment compensation benefits that were properly paid,
Hopkins v. Bd. of Review, 249 N.J. Super. 84, 89 (App. Div. 1991),
it should not be applied here where the claimant was properly
determined to be ineligible for ABT.
The remaining point raised by appellant lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(D) and (E).
The decision of the Board of Review was not arbitrary,
capricious, or unreasonable, and is amply supported by substantial
credible evidence in the record.
Affirmed.
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