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NOT FOR PUBLICATION WITHOUT THE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

2 A-3252-15T4
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

3 A-3252-15T4
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

5 A-3252-15T4
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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