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Shider v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 17, 2007

PHYLLIS R. SHIDER, APPELLANT,
v.
BOARD OF REVIEW AND JERSEY CITY UNEMPLOYMENT OFFICE, RESPONDENTS.

On appeal from Department of Labor, Division of Workers' Compensation Claim, Docket No. 117,761.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 20, 2007

Before Judges Wefing and Weissbard.

Phyllis R. Shider appeals pro se from a final agency determination of the Board of Review upholding a decision of the Department of Labor, Appeal Tribunal, that she was not eligible for additional unemployment benefits during training (ABT). We affirm.

Shider was employed for a three-month probationary period by the Hudson County Surrogate beginning September 19, 2005.

She was hired to replace a permanent, full-time clerk typist/receptionist who had gone out on disability. However, the woman in question returned from her disability leave after Shider was hired and trained her while they were sharing the same work place. On December 20, 2005, the Surrogate advised Shider that she had failed her test period and terminated her employment. However, on review by the County Counsel and County Director of Personnel, Shider's termination was changed from a termination for cause to a termination without cause, making it the equivalent of a resignation in good standing.

Shider applied for ABT which was denied by a Deputy, and Shider appealed. The County supported her appeal, arguing that Shider's termination could be viewed as having been "prompted by or related to an elimination of position." The Appeal Tribunal rejected that argument, finding that Shider's termination did not result from "a substantial reduction of employment at the worksite . . .," as required by N.J.S.A. 43:21-60a, and also citing N.J.A.C. 12:23-5.1(a)2 which requires that an individual is eligible for ABT benefits only if the person "[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." The Appeal Tribunal stated:

From N.J.S.A. 43:21-60 and N.J.A.C. 12:23-5.1, it is concluded that for an individual to be eligible for additional benefits during training, there must be a "substantial reduction in work opportunities" at the individual's former worksite. This is substantially different from the requirements for eligibility for regular unemployment benefits. In this case, the claimant's separation was due to an isolated termination rather than a substantial reduction in work opportunities in the claimant's job classification. Therefore, the claimant is ineligible for additional unemployment benefits during training as provided by N.J.S.A. 43:21-60 and N.J.A.C. 12:23-5.1.

The Board of Review affirmed on "the basis of the record below."

Shider has the burden of establishing her entitlement to unemployment compensation, such as ABT. Bonilla v. Bd. of Review, 337 N.J. Super. 612, 615 (App. Div. 2001). Our standard of review is limited. If the agency decision is supported by sufficient, competent, credible evidence, and is neither arbitrary, capricious nor unreasonable, it will be affirmed. In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988); Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)). Indeed, if those standards are met, we must affirm even if we might have reached a different result. Campbell v. New Jersey Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Clowes, supra, 109 N.J. at 588).

Applying these standards to the record, we reject Shider's contention on appeal that

[she] was within the guidelines to receive benefits, she attended training at Hudson County Community College. There was a reduction in work with her former employer. Therefore, she should not have been denied for additional benefits while in training.

Affirmed.

20070717

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